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) |
| 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,…
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- Case
- [2016] FCCA 397
- Decision Date
CaseChat Overview and Summary
The Court was required to determine two principal legal issues. Firstly, whether the legislative scheme under Division 104 of the Criminal Code mandates that the specific court which issued the interim control order must also conduct the confirmation hearing, thereby precluding any transfer. Secondly, if a power to transfer did exist under section 39 of the Federal Circuit Court of Australia Act 1999 (Cth), whether the Court should, in its discretion, exercise that power and transfer the proceedings to the Federal Court of Australia.
In considering the first issue, the Court referred to the legislative framework and the reasoning in *Jabbour v Thomas (No.3)*, which held that the Criminal Code scheme requires the issuing court to determine the confirmation hearing. The Court found this interpretation to be consistent with the systematic use of terms like "an issuing court" and "the issuing court" within Division 104, indicating an intent for the original court to retain carriage of the matter. Consequently, the Court concluded that there was no power to transfer the confirmation hearing to the Federal Court of Australia.
Given the determination that no power to transfer existed, the Court did not need to consider the second issue regarding the exercise of discretion. The proceeding was adjourned for a further hearing, with costs reserved. The Respondent was ordered to file and serve any affidavit material on which he sought to rely by a specified date.
Orders
Orders of the court
1.
The proceeding is adjourned for hearing on the 20 June 2016 at 10:00am for a 10 day listing.
2.
Costs are reserved.
3.
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)
1.
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.”
2.
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.
3.
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.
4.
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.
5.
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.
6.
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.
7.
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?
8.
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.
9.
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]
10.
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
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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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