Jabbour v Thomas (No.3)

[2006] FMCA 1425

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JABBOUR v THOMAS (No.3) [2006] FMCA 1425

ADMINISTRATIVE LAW – CONTROL ORDER – PRACTICE AND PROCEDURE − Interim control order confirmation hearing − application to transfer to Federal Court − whether hearing to confirm interim control order must be heard in court which made the interim control order.

Criminal Code (Cth), Div 104
Federal Magistrates Act 1999 (Cth), s.39

Applicant: RAMZI JABBOUR

Respondent: JOSEPH TERRENCE THOMAS

File number: CAG47 of 2006

Judgment of: Phipps FM

Hearing date: 21 September 2006

Date of last submission: 21 September 2006

Delivered at: Melbourne

Delivered on: 21 September 2006

REPRESENTATION

Counsel for the Applicant: Mr Howe QC & Mr Berger

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr Lasry QC & Mr Taft

Solicitors for the Respondent: Robert Stary & Associates

ORDER

1. The application to transfer the proceeding to the Federal Court is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

CAG47 of 2006

RAMZI JABBOUR

Applicant

And

JOSEPH TERRENCE THOMAS

Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

1. On 27 August 2006 this Court made an interim control order under div.104 of the Criminal Code in relation to the respondent. The issue now is whether the Federal Magistrates Court should determine whether the interim control order should be confirmed or whether the matter should be transferred to the Federal Court of Australia. Section 39 of the Federal Magistrates Act 1999 (Cth) gives the court discretionary power to transfer a proceeding to the Federal Court.

2. The issue is whether the provisions of div.104 mean that the Court which makes the interim control order must determine the confirmation issue. If that is correct, the matter cannot be transferred.

3. A senior Australian Federal Police member may request a Court to make an interim control order. Section 104.2 of the Criminal Code requires the senior Australian Federal Police member to first obtain the Attorney General's written consent.

4. Then s.104.3 provides that the senior Australian Federal Police member may give “an issuing court” a request for an interim control order.  Definitions are contained in s.100.1:

   Issuing court means:

   (a) the Federal Court of Australia; or

   (b) the Family Court of Australia; or

   (c) the Federal Magistrates Court.

5. Section 104.4 provides for the making of an interim control order and s.104.5, the terms of an interim control order.  Each section refers to “the issuing court” or “the court”.  In particular, s.104.5(1)(e) provides:

   If the issuing court makes the interim control order, the order must

   (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.

6. Sub-division D of div.104 deals with confirming an interim control order. The sub-division refers to “the issuing court” in s.104.12A(1)(b), s.104.14(1) and s.104.16 and “the court” in s.104.14(5), (6) and (7) and s.104.15. The term “an issuing court” is not in sub-div.D.

7. Sub-division E of div.104 deals with rights in respect of control orders. Under that sub-division, s.104.18 and s.104.19, in sub.s.(1) of each, provide for the revocation of a control order. Both sub-sections provide for application to “an issuing court”. The revocation provisions after sub.s.(1) in each of s.104.18 and s.104.19 then use the phrase "the Court".

8. 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.

9. The respondent's argument refers to s.104.14(1).  Sub-section (1) describes the persons who may call evidence or make submissions in relation to the confirmation of the order.  Section 104.14(2) provides that sub.s.(1) does not otherwise limit the power to control proceedings.

10. The respondent argues that this includes the Federal Magistrates Court power to transfer to the Federal Court under s.39. It does not. 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.

11. Even if I am wrong in finding that div.104 means that the same Court that makes the interim control order must undertake the confirmation hearing, the issue is at least seriously arguable.

12. One of the matters to be taken into account under s.39 in considering a transfer application is the interests of the administration of justice. It would not be in the interests of the administration of justice to have the confirmation hearing transferred to a court where there is doubt about that court’s jurisdiction. There is no doubt about the Federal Magistrates Court’s jurisdiction. The interests of justice, therefore, require that the application remains in the Federal Magistrates Court. The application to transfer the proceeding to the Federal Court is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: 

Date:  25 September 2006