(3) The potential advantages of court proceedings

(3) The potential advantages of court proceedings

9. Coordination with other claims

The extent to which such claims and causes of action can be combined with a relationship property arbitration is beyond the scope of this article. At least some could be combined with relationship property in one arbitration if all interested parties have full capacity and agree. Claims in contract or tort, and claims against trustees based on constructive trusts or breach of trust, are obvious examples.

In many other cases, however, it will be beyond the competence of the parties to submit their dispute to arbitration. The complication is likely to be the involvement of children, unascertained beneficiaries, inalienable family support rights after death or questions of family status. One point of view is that even in those cases it is worth conducting an arbitration on the basis that each party makes a contractual commitment to support a consent court order reflecting the terms of the award.⁵⁹ However a more conservative approach is to assume that if it would take a consent court order to make any settlement of the dispute legally binding, it may be quicker and safer to submit the whole dispute to the court in the first place.

It follows that when considering an arbitration over rights under the PRA, an adviser should consider the following questions:

• 
  Is the dispute confined to the PRA or does it spill over into other statutes or causes of action?
  
• 
  If additional claims are involved, will it be efficient to determine them in isolation from the relationship property dispute or should they all be heard together?
  
• 
  If they should all be heard together, is it clear that the additional claims can be validly submitted to arbitration?
  
• 
  If it is clear that the further claims can be validly submitted to arbitration, do all interested parties have full capacity and agree to that course?
  

(ii) Lower court fees

Forum fees will normally be higher for arbitrations than court proceedings.

Fees payable for relationship property proceedings in the Family Court involve an initial filing fee of $700 and a hearing fee of $906 for each half-day or part half-day.⁶⁰ Thus a case involving interlocutory hearings of two days, and a substantive hearing of four days, requires court fees in the order of $11,500. For the same proceedings in the High Court the initial filing fee is $1350⁶¹ and there is a hearing fee of $1600 per half-day⁶² resulting in equivalent fees in the order of $20,550. Fees payable for an arbitrator, stenographer and venue are likely to exceed that figure.

However to stop at that point would be misleading. Only a very small proportion of relationship property disputes proceed to judgment or award. Most settle as soon as the parties have enough information to carry out a reliable property analysis.

Information is the key. This is where an arbitrator should be in a position to help. An efficient and prompt information-gathering process should make a full property analysis and settlement possible at an early stage. There is an obvious corollary in cost-saving. And for the few relationship property disputes that do go to a full hearing, the relative finality of an award compared with an appealable court judgment is likely to reduce costs further. Taken overall, therefore, it seems doubtful whether court proceedings will prove to be more economical than arbitration.

(iii) Reduced opportunity for procedural game-playing

For those parties (or their lawyers) who are intent on obstruction and time-wasting, arbitration can offer certain opportunities for which there is no court equivalent. A party can object to the suitability of an arbitrator,⁶³ challenge the scope of the arbitrator’s jurisdiction⁶⁴ or attempt to have the arbitrator removed.⁶⁵ In relationship property there is also the opportunity to challenge the relevant arbitration clause or submission agreement prior to the award on the ground that giving effect to it would cause serious injustice for the purpose of s 21J of the PRA.⁶⁶

Those opportunities must be compared with others that are uniquely available in court proceedings. In particular the right to appeal against, or judicially review, interlocutory or substantive decisions in court proceedings is much wider.

However unmeritorious challenges might be, an obstructive litigant can make any form of proceedings lengthy and expensive. It seems doubtful whether, taken overall, the opportunities for procedural game-playing are significantly lessened by litigating in court.

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