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

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)

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.
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.
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.
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.
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.
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…

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: [2006] FMCA 1425
Decision Date: 21 September 2006

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Ramzi Jabbour, the applicant, filed an application against Joseph Terrence Thomas, the respondent, concerning an interim control order made under the Criminal Code. The matter, CAG47 of 2006, was presided over by Phipps FM and heard on 21 September 2006. The primary legal issue before the court was whether the Federal Magistrates Court should retain jurisdiction to confirm the interim control order or if the matter should be transferred to the Federal Court of Australia. This issue arose from the interpretation of Section 39 of the Federal Magistrates Act 1999, which grants discretionary power to transfer proceedings to the Federal Court, and the implications of Division 104 of the Criminal Code.

The court examined whether Division 104 of the Criminal Code mandated that the court that issues the interim control order must also be the one to hear the confirmation of that order. The applicant argued that the systematic use of phrases like "the issuing court" and "the court" in Division 104 indicated a legislative intent for the same court to handle both the issuance and confirmation of the control order. Conversely, the respondent contended that the provisions did not preclude the Federal Magistrates Court from exercising its power to transfer proceedings to the Federal Court under Section 39. However, the court found that Division 104 was focused on the conduct of the hearing in the issuing court and did not preserve the transfer process outlined in Section 39 of the Federal Magistrates Act 1999.

Further, the court considered the interests of justice, which necessitated that the application remain in the Federal Magistrates Court to avoid any jurisdictional uncertainty. The court concluded that even if there was some arguable merit to the respondent's position, it was not sufficient to warrant a transfer. Therefore, the application to transfer the proceeding to the Federal Court was dismissed.

The court's decision underscored the importance of jurisdictional clarity and the administration of justice, reinforcing the principle that the issuing court should retain jurisdiction over the confirmation of an interim control order. The final order dismissed the application for transfer, thereby maintaining the case within the Federal Magistrates Court's jurisdiction.

Orders