Awards- Can you appeal?

An award – can it be appealed ?

One common question that arises during our seminars is, “Can the award be appealed ?”.

The first concept to understand is that there is no provision for an “appeal” of an award but rather a review of the award (sec.  13J) or by setting aside the award (sec. 13K)

The grounds for setting aside are mostly self evident;


·       Fraud (sec 13K(2)(a))

·      The award or agreement is void, voidable or unenforceable (sec 13K(2)(b))

·      Impractical (sec 13K(2)(c)); or

·      Bias or lack of procedural fairness (sec 13K(2)(d))

A review, on the other hand is limited to “questions of law” and is probably the most important to understand. The concept isn't as narrow as one might immediately understand.

In Haritos v Commissioner of Taxation [2015] FCAFC 92 the Full Court of the Federal Court extensively reviewed the developed case law defining what amounts to an error of law. The Full Court restated that a right of appeal does not extend to mere questions of fact but that if some error of law is established in the fact finding process, that may be an error of law. (See paras 192 to 194.)

That aligns with the family law authority of  Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 (6 February 2014) where, after considering relevant authority upon the interpretation of “appeal on a question of law” the Full Court summarised the fact/law dichotomy as follows;

·       The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law (Al-Miahi).

·       The making of a finding of fact or the drawing of an inference in the absence of evidence is an  error of law  (Al-Miahi).

·       A wrong finding of fact is not an  error of law  (Al-Miahi).

·       A finding of fact based on reasoning that is “demonstrably unsound” or on an “illogical course” or a “faulty process” of reasoning is not an  error of law  (Al-Miahi).

·       Judicial review is not to be over-zealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons of an administrative decision maker must not be turned into a reconsideration of the merits of the decision (Wu Shan Liang).

·       Section 103X(3)(b) of the Registration and Collection Act (by analogy with s 430 of the Migration Act) requires the SSAT to do no more than set out the findings which it did make on facts which it considered material to the decision which it made (Yusuf).


We think those principles encapsulate how a review might be approached pursuant to section 13J of the Family Law Act.

1  In Haritos v Commissioner of Taxation

 [2015] FCAFC 92 

 the Full Court of the Federal Court reconsidered the line of authority associated with Comcare v Etheridge. In that case, the Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) said:

192. In summary, the terms, the context (particularly s 7 of the AAT Act and noting what we have said especially at [149] above as to s 45 not providing an analogy), the history, authority and the purpose of s 44 each indicates that the right of appeal in s 44 should not be read as meaning that “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” may never extend to a mixed question of fact and law or as requiring that the question of law be a “pure” question. Rather, it may more accurately be said that the right of appeal does not extend to mere questions of fact. As French CJ, Gummow and Bell JJ emphasised in Osland, at [19], the Court “should not usurp the fact-finding function of the AAT”, citing Repatriation Commission v O’Brien [1985] HCA 10; 155 CLR 422 at 430 per Gibbs CJ, Wilson and Dawson JJ. It follows that the right of appeal does not extend to mixed questions of fact and law where, in order to decide the question of law, the Court must positively determine a question of fact itself, rather than judicially review the Tribunal’s fact-finding. As Brennan J said in Waterford v The Commonwealth [1987] HCA 25, 163 CLR 54 at 77:

A finding by the A.A.T. on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the A.A.T. Act confers on a party to a proceeding before the A.A.T. a right of appeal to the Federal Court of Australia “from any decision of the Tribunal in that proceeding” but only “on a question of law”. The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. ...

It follows that legally erroneous fact-finding may found an appeal on a question of law within s 44. Further, we do not read Brennan J in Waterford as addressing jurisdictional facts or such facts as it may be necessary for the Court to find when considering a claim of denial of procedural fairness: see further [202] below.

193. To the extent that the reasoning in Birdseye and Etheridge depended on the view that a question of law within s 44 is required to be a “pure” question of law which should be capable of being answered without reference to facts, we respectfully disagree. Collins establishes that this view of s 44 is not correct. That view is also inconsistent with what Brennan J said in Waterford. Neither do Birdseye and Etheridge sit comfortably with Maurici, Vetter and Hope. Nor is the extended meaning of a question of mixed fact and law consistent with earlier decisions of the Full Court in, for example, PW Adams and Sharp Corporation. The line of cases beginning with Birdseye and Etheridge should not be understood as intending to overrule those cases.

194. We restate that the subject matter of an appeal under s 44 is a question or questions of law. We also restate that the appeal is not by way of rehearing; it is the exercise of original jurisdiction. Neither is it sufficient that the appeal merely involves a question of law. The correct approach, in our opinion, is to ask directly the question whether the appeal is on a question of law, without being diverted by whether or not the appeal raises a mixed question of fact and law. As the High Court said in Owens, the purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by the Federal Court but by the Tribunal. This distribution of function is critical to the correct operation of the administrative review process. See also O’Brien at 430 where Gibbs CJ, Wilson and Dawson JJ said that on an appeal under s 44 the appellate body should not usurp the fact-finding function of the Tribunal. But such fact-finding is an entirely different exercise from the evaluation of the fact-finding process of the Tribunal (as fact-finder) to decide upon its legality.