GAUGHAN v CAUSEVIC
[2016] FCCA 397
•24 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GAUGHAN v CAUSEVIC | [2016] FCCA 397 |
| Catchwords: PRACTICE AND PROCEDURE – Criminal Code Act 1995 (Cth) – control order – interim control order – confirmation hearing – oral application to transfer to the Federal Court of Australia – application refused. |
| Legislation: Criminal Code Act 1995 (Cth), ss.100.1, 104.2A, 104.4, 104.5, 104.5(e), 104.12A(1), 104.14(1) Federal Circuit Court of Australia Act 1999 (Cth), s.39 Federal Circuit Court Rules 2001 (Cth), rr.8.02(3), 8.02(3), 8.02(4) |
| Ali v Minister for Immigration & Anor [2015] FCCA 369 Jabbour v Thomas (No.3) [2006] FMCA 1425 SZSEE v Minister for Immigration & Anor [2013] FCCA 1026 SZUDE v Minister for Immigration & Anor [2015] FCCA 60 Thomas v Mowbray (2007) 233 CLR 307 |
| Applicant: | NEIL GAUGHAN |
| Respondent: | HARUN CAUSEVIC |
| File Number: | (P)MLG2056 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 24 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 24 February 2016 |
REPRESENTATION
| Queen’s Counsel for the Applicant: | Dr Donoghue |
| Counsel for the Applicant: | Mr Tran |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Senior Counsel for the Respondent: | Dr Neal |
| Counsel for the Respondent: | Dr Boas |
Solicitors for the Respondent: | Stary Norton Halphen Solicitors |
ORDERS
The proceeding is adjourned for hearing on the 20 June 2016 at 10:00am for a 10 day listing.
Costs are reserved.
The Respondent file and serve any affidavit material on which he seeks to rely on or before 30 March 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
(P)MLG2056 of 2015
| NEIL GAUGHAN |
Applicant
And
| HARUN CAUSEVIC |
Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
On 10 September 2015, the Court, an issuing court, as defined in s.100.1 of the Schedule - The Criminal Code of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’), made an interim control order in respect of the Respondent under s.104.4 of the Criminal Code. That order provided, pursuant to s.104.5(e) of the Criminal Code, and as set out in order number 4, that:-
“The confirmation hearing be listed on 2 December 2015 at 10am.”
On 23 November 2015 and following correspondence from the parties to the Court, the hearing date of 2 December 2015 was vacated, as requested by the parties, and further hearing dates were proposed by the Court.
On 26 November 2015, the proceedings were listed for hearing over five days to commence on 22 February 2016 at 10am. The parties were advised to file any material on which they wished to rely four days prior to the hearing date, being 18 February 2016. The Applicant filed further evidence on which the Applicant intended to rely at the hearing of 22 February 2016, on both 8 and 9 February 2016. The Respondent filed no evidence.
On 16 February 2016 and being shortly prior to the commencement of the confirmation hearing, the Respondent, by correspondence to the Court, copied to the other party, foreshadowed an application to transfer this proceeding to the Federal Court of Australia.
No application with supporting affidavit evidence was filed by the Respondent. On 22 February 2016, the Respondent filed submissions in support of the foreshadowed transfer application. The Applicant then filed submissions opposing the Respondent’s application for transfer of the proceeding to the Federal Court of Australia.
The Applicant opposes the application for transfer on two grounds. Firstly, because the Court had held, in relevantly identical circumstances, that it has no power to transfer a confirmation hearing to another issuing court. The judgment of Phipps FM (as his Honour Judge Phipps then was) of 21 September 2006,[1] it was said by the Applicant, should be followed as it is not “plainly wrong”. Indeed, the Applicant submitted it is correct. The second ground submitted was that even if there were a power to transfer the confirmation hearing to the Federal Court of Australia, in the circumstances of this matter, no such order should be made.
[1] Jabbour v Thomas (No.3) [2006] FMCA 1425.
There are, thus, two issues for the Court’s consideration. The first is whether the provisions of div.104 of the Criminal Code mean that the issuing court which makes the interim control order must determine the confirmation hearing. If so, it is not possible for the Court to transfer the proceedings to the Federal Court of Australia; and the second issue is that if that is wrong, and the Court can act pursuant to s.39 of the Federal Circuit Court of Australia Act 1999 (Cth) (‘the Act’), whether the Court should exercise its discretionary power and transfer the proceedings to the Federal Court of Australia.
Consideration
a) Is there power to transfer the confirmation hearing?
The Court is concerned with an interim control order, made ex parte, which is proceeding to a confirmation hearing. Prior to the confirmation hearing being held, the subject of the control order, the Respondent, has been given the documents that were provided to the Attorney-General for the purpose of seeking consent to the application for the interim control order, together with any other details required to enable the Respondent to respond.[2] The confirmation hearing will involve evidence, cross-examination and argument. The Court has discretion whether to revoke or vary or confirm the order.[3] An appeal lies from a decision of the Court in accordance with the ordinary appellate process that governs the Court’s decisions. The case itself is to be determined on its individual merits.
[2] Criminal Code Act 1995 (Cth), s.104.2A.
[3] Criminal Code Act 1995 (Cth), s.104.1(4).
The legislative scheme, as was said by Gummow and Crennan JJ in Thomas v Mowbray (2007) 233 CLR 307 at paragraph 34:-
“… is that interim orders, having been made ex parte, should come as soon as practicable before the issuing court in an inter partes proceeding for confirmation, revocation or other disposition.”
The interim control order proceeding was an interlocutory proceeding for all purposes.[4]
[4] Thomas v Mowbray (2007) 233 CLR 307.
In Jabbour v Thomas (No.3) [2006] FMCA 1425, the Court held that it had no power to transfer a confirmation hearing to the Federal Court of Australia. That proceeding concerned an application to transfer a confirmation hearing to the Federal Court of Australia in circumstances where the Court had made an interim control order that was to be the subject of the confirmation hearing. Phipps FM (as his Honour Judge Phipps then was) held that under the regime for the making of interim control orders and confirmed control orders under div.104 of the Criminal Code, the same court that issued the interim control order was required to determine whether or not that order should be confirmed. His Honour said in paragraph 8 of those Reasons for Judgment:-
“The use of the phrases “an issuing court” and “the issuing court” and ‘the court” throughout div.104, is systematic and consistent. “An issuing court” is used when referring to either the Federal Court of Australia or the Family Court of Australia or the Federal Magistrates Court. “The issuing court” or “the court” are used when referring to the court that made an interim control order or is otherwise seized of an application that has been commenced. The intent of the provisions is clear. The court which makes the interim control order must be the court that determines whether the control order should be confirmed.”
His Honour then said further at paragraph 10 of those Reasons for Judgment:-
“… Section 104 is confined to the conduct of the hearing in the issuing Court. It does not preserve the transfer process. That means that s.39 of the Federal Magistrates Act 1999 cannot have any application in this case.”
As submitted by Senior Counsel for the Applicant, Jabbour v Thomas (No.3) [2006] FMCA 1425 should be followed unless it is “plainly wrong”. “Principles of precedent and judicial comity” require that approach to be adopted.[5] The Court accepts that.
[5] Ali v Minister for Immigration & Anor [2015] FCCA 369 per Judge Lucev at [18]. See also SZUDE v Minister for Immigration & Anor [2015] FCCA 60 per Judge Driver at [43], SZSEE v Minister for Immigration & Anor [2013] FCCA 1026 per Judge Nicholls at [62].
The Court cannot find that Jabbour v Thomas (No.3) [2006] FMCA 1425 is “plainly wrong”. Division 104 of the Criminal Code consistently draws a distinction between its use of the words “an issuing court” and “the issuing court”. The expression “an issuing court” is consistently used in provisions which permit the subject of a control order or a senior Australian Federal Police member to make an application to a court. The effect of that express provision is that the subject, or the senior Australian Federal Police member, may elect to commence proceedings in any, currently, of the Federal Circuit Court, the Federal Court of Australia or the Family Court of Australia; each of which is defined by s.100.1(1) of the Criminal Code to be an issuing court. By contrast, “the issuing court” is consistently used in provisions about what the court in which proceedings have been commenced by the subject, or by the senior Australian Federal Police, as the case may be, may do thereafter. Section 104.14(1) of the Criminal Code uses the expression “the issuing court” consistently with the distinction just mentioned. I accept the Applicant’s submission that the definite article can only sensibly be understood as referring back to the election to confirm a control order in s.104.12A of the Criminal Code.
Section 104.5(1)(e) of the Criminal Code requires the interim control order to “specify a day in which the person may attend the court for the court to confirm it, declare it void or revoke it”. The provision refers to “the court”. The definite article refers back to the opening words of section 104.5(1) of the Criminal Code which are:-
“(1) If the issuing court makes the interim control order, the order must:
(a) state that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d); and
(b) specify the name of the person to whom the order relates; and
(c) specify all of the obligations, prohibitions and restrictions mentioned in subsection (3) that are to be imposed on the person by the order; and
(d) state that the order does not begin to be in force until it is served personally on the person; and
(e) specify a day on which the person may attend the court for the court to:
(i) confirm (with or without variation) the interim control order; or
(ii) declare the interim control order to be void; or
(iii) revoke the interim control order; and
(f) specify the period during which the confirmed control order is to be in force, which must not end more than 12 months after the day on which the interim control order is made; and
(g) state that the person's lawyer may attend a specified place in order to obtain a copy of the interim control order; and
(h) set out a summary of the grounds on which the order is made.
Note 1: An interim control order made in relation to a person must be served on the person at least 48 hours before the day specified as mentioned in paragraph (1)(e) (see section 104.12).
Note 2: A confirmed control order that is made in relation to a 16- to 18-year-old must not end more than 3 months after the day on which the interim control order is made (see section 104.28).”
Section 104.12A(1) of the Criminal Code requires the senior Australian Federal Police member who requested the interim control order to:-
“(1) At least 48 hours before the day specified in an interim control order as mentioned in paragraph 104.5(1)(e), the senior AFP member who requested the order must:
(a) elect whether to confirm the order on the specified day; and
(b) give a written notification to the issuing court that made the order of the member's election (emphasis added).”
The Court is of the view that as the issuing court it should hear the confirmation proceeding.
b) Exercise of the Court’s discretion
The Court acknowledges that there is some degree of complexity in these proceedings, as submitted by Senior Counsel for the Respondent, and that the transfer of a complex matter to the superior court is a matter to be considered when looking to the question of the interests of the administration of justice. However, when weighing the totality of matters, the Court determines that it should not exercise its discretion pursuant to s.39 of the Act, to transfer the proceedings.
Section 39 of the Act is as follows:-
“(1) If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to the Federal Court or the Family Court.
(2) The Federal Circuit Court of Australia may transfer a proceeding under this section:
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(4) In deciding whether to transfer a proceeding to the Family Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(4); and
(b) whether proceedings in respect of an associated matter are pending in the Family Court; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(5) If an order is made under subsection (1), the Federal Circuit Court of Australia may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Court or the Family Court, as the case requires.
(6) An appeal does not lie from a decision of the Federal Circuit Court of Australia in relation to the transfer of a proceeding under subsection (1).
(7) A reference in subsection (1) to a proceeding pending in the Federal Circuit Court of Australia includes a reference to a proceeding that was instituted in contravention of subsection 19(1).
(8) This section does not apply to proceedings of a kind specified in the regulations.”
As can be seen from the above, s.39(3) of the Act sets out the mandatory considerations in the exercise of the Court’s transfer power in sub-s.39(1). The rules of court that are contemplated by s.39(3)(a) are contained in r.8.02 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).
Rule 8.02(3) of the Rules provides that:-
“Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.”
Rule 8.02(4) of the Rules sets out the following relevant matters:-
“In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c) whether the proceeding will be heard earlier in the Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.”
The Respondent put before the Court no application nor supporting affidavit. Senior Counsel for the Respondent was prepared to give an undertaking to file an application hereafter. The Court determined that it was not necessary for the request to be set out in a formal application, given the existence of the submissions and the opportunity for the Applicant to respond in the filing of responsive submissions. The Court and parties knew what it was the Respondent sought. The lack of any affidavit material, however, results in no evidence being before the Court which the Court could rely upon in addressing the considerations set out in r.8.02(4) of the Rules.
The Court was not in a position to determine the availability of the superior Court to hear this matter. The Court, however, is obviously familiar with its own listing availability and indicated to the parties that the Court could proceed to hear the matter on 22 February for a five-day period or, alternatively, adjourn the proceeding to another convenient date to the parties and the Court in a reasonably short timeframe. Availability of the Court was not in issue. Whilst the Respondent wished to transfer the proceedings to the Federal Court of Australia on the basis that the proceeding was likely to involve questions of general importance such that it would be desirable for there to be a decision of the Federal Court of Australia on one or more of the points in issue, the Applicant did not wish for a transfer to the Federal Court of Australia, of the proceedings.
The Court has considered, and it is agreed between the parties, that there are no proceedings in respect of an associated matter pending in the Federal Court of Australia. The Court is also satisfied that the resources of the Court are sufficient to hear and determine the proceeding. Indeed, the Court has made hearing dates available for this matter to the present time to accommodate the parties, and is in a position to be able to continue to do so into the future. At the present time, no material has been filed by the Respondent. The Court has presided over a number of control order hearings to date, and since the inception of the relevant legislation.
When the Court considers the interests of the administration of justice, the Court finds that those interests weigh against the transfer application being granted. The Court made the interim control order. The Court is thus aware of the substance of the material that will be an issue in the confirmation hearing. Procedural steps have been taken in the proceedings to date in the Court which have included the service by the Applicant upon the Respondent of a notice to admit pursuant to the Rules, and there is now filed a Response to Notice to Admit Facts on 22 February 2016. The foreshadowing of the application to transfer in correspondence of 16 February 2014 was made at a time in very close proximity to the commencement of the trial, without any evidentiary material being filed by the Respondent.
This Court is well-equipped to determine the proceeding. It has jurisdiction to do so about which there is no dispute, given that it was the issuing court in the interim control order hearing. The proceeding is fact-specific. There shall be no transfer of the proceedings.
Finally, the Respondent seeks an adjournment of the proceedings to a later date, albeit he remains subject to the Interim Control Order. That request for an adjournment is not opposed by the Applicant and can be accommodated by the Court. It shall be granted.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 29 February 2016
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