Alcock and Baressi - [2012] FMCAfam 60

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALCOCK & BARESSI

[2012] FMCAfam 60

FAMILY LAW – Application to review a Registrar’s decision in relation to abridgment of time – no jurisdiction to do so – decision characterised as administrative rather than judicial.

Federal Magistrates Act 1999, ss.102, 103, 104
Federal Magistrates Court Rules 2001, r.20A

Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353
Lynch & Dunstan [2011] FMCAfam 389
Paramasivam v Randwick City Council [2005] FCA 369
Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47
Zeller & Whitby [2011] FMCAfam 431

Applicant:

MR ALCOCK

Respondent:

MS BARESSI

File Number:

SYC 298 of 2012

Judgment of:

Kemp FM

Hearing date:

20 January 2012

Date of Last Submission:

20 January 2012

Delivered at:

Sydney

Delivered on:

23 January 2012

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Respondent:

No appearance

ORDERS

That the Application for Review filed 20 January 2012 be dismissed.

UPON NOTING THAT:

(a)The decision sought to be reviewed is not an exercise of one of the judicial powers of the Court given to a Registrar under section 102(2) of the Federal Magistrates Act 1999, or under a delegation pursuant to section 103(1) of the Federal Magistrates Act 1999; and
(b)Therefore the decision cannot be reviewed pursuant to section 104(2) of the Federal Magistrates Act 1999.
(c)The affidavit material filed by the Father is sufficient to ground short service, but not sufficient to ground any further relief.

IT IS NOTED that publication of this judgment under the pseudonym Alcock & Baressi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 298 of 2012

MR ALCOCK

Applicant

And

MS BARESSI

Respondent

REASONS FOR JUDGMENT

Introduction and Background

On 20 January 2012, the applicant father filed his substantive Initiating Application in these proceedings seeking a number of parenting orders. The matter was given a first Court date of 20 February 2012. The applicant had, in fact, applied to abridge time so that the matter could be dealt with at the earliest available time. A Registrar had granted leave for the application to be listed on 20 February 2012 and had directed that service be effected by 24 January 2012 at 8.00pm.
The learned Registrar, S Truong, had provided, as would appear on the form described as the Application to abridge time to an urgent hearing/hearing without notice worksheet, which forms part of the Court file, her reasons for the allocation of the 20 February 2012 as being the “1^st urgent slot available”. The first normal return date, would appear from the Registrar’s form to be a date, then being offered, as the 19 March 2012 at 9.30am.
The applicant father was not satisfied with this and filed an Application for Review on 20 January 2012 which was made returnable on that same day before me. I dismissed the application and formally noted the matters set out at the commencement of these reasons.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCAfam 60
Decision Date: 23 January 2012

CaseChat Overview and Summary

The case of Alcock and Baressi involved a review application filed on 20 January 2012, where the applicants sought to overturn a decision made by a Registrar. The dispute centred around the jurisdictional scope of the court's ability to review decisions made by its Registrars. The matter was heard and determined by the relevant Australian court, which had to consider the legal boundaries of its authority in relation to such reviews.

The primary legal issue the court addressed was whether the decision sought to be reviewed constituted an exercise of judicial power that could be reviewed by the court itself. The court needed to determine if the decision in question was one that fell within the purview of judicial power as outlined in section 102(2) of the relevant legislation. Additionally, the court had to examine the nature of the decision made by the Registrar and assess whether it was subject to judicial review.

In its reasoning, the court found that the decision sought to be reviewed did not represent an exercise of judicial power as defined in the legislation. The court concluded that the decision made by the Registrar did not fall within the category of judicial decisions that could be reviewed by the court. Consequently, the court dismissed the application for review, reaffirming the limits of its review powers over decisions made by its Registrars. The court's decision underscored the importance of distinguishing between administrative and judicial functions when considering the scope of judicial review.

The court ordered that the application for review filed on 20 January 2012 be dismissed, thereby upholding the decision of the Registrar. The court's decision clarified the boundaries of its review powers, ensuring that only decisions that qualify as exercises of judicial power under section 102(2) could be subject to judicial review. This ruling serves as a reminder of the jurisdictional constraints that govern the court's authority in reviewing decisions made by its Registrars.

Orders

Orders of the court

That the Application for Review filed 20 January 2012 be dismissed.

UPON NOTING THAT:

(a) The decision sought to be reviewed is not an exercise of one of the judicial powers of the Court given to a Registrar under section 102(2) of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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