Jasen v D.F.C.S.

[2005] FMCA 1758

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JASEN v D.F.C.S. [2005] FMCA 1758

PRACTICE AND PROCEDURE – ADMINISTRATIVE LAW – Transfer to Federal Court – whether application properly made under s.44 of the Administrative Appeals Tribunal Act – no jurisdiction vested in Federal Magistrates Court.

Administrative Decisions (Judicial Review) Act 1977
Administrative Appeals Tribunal Act 1975, s.44
Federal Magistrates Act 1999, s.39(1)

Duncan v Hotop & Anor [2002] FMCA 56

Applicant: CAROL DIANE JASEN

Respondent: DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

File Number: MLG1271 of 2005

Judgment of: McInnis FM

Hearing date: 18 November 2005

Delivered at: Melbourne

Delivered on: 18 November 2005

REPRESENTATION

Solicitor for the Applicant: Ms S Fisher

Solicitors for the Applicant: Ryan Carlisle Thomas

Solicitor for the Respondent: Ms P Heffernan

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed 13 October 2005 be transferred pursuant to s.39(1) of the Federal Magistrates Act 1999 to the Federal Court of Australia.

2. Costs be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG1271 of 2005

CAROL DIANE JASEN

Applicant

And

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application filed on 13 October 2005 which I am satisfied, although reference is made to the application being made under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act), effectively seeks to appeal from a decision of a Senior Member of the Administrative Appeals Tribunal. That decision dated 27 September 2005 is the decision where from the applicant seeks to appeal. The matter is listed before this Court as a first hearing date and it is evident that both parties understand and appreciate that in fact the matter should properly be issued in the Federal Court of Australia.

2. The Federal Court shares concurrent jurisdiction with this Court for review of decisions pursuant to the ADJR Act. The Federal Court currently have the power to hear applications where an appeal is raised pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and it may then, if the decision is made by a non-Presidential member of the Tribunal, transfer the application to this Court.

3. In the present case, in my view, as a matter of practicality, given that theoretically the application under the ADJR Act may survive, it is my concluded view that it would be in the interests of justice to transfer the application pursuant to s.39 of the Federal Magistrates Act 1999 to the Federal Court. If the matter remained in this Court then it would be my view that the appropriate remedy in any event would be for an appeal to be lodged in the Federal Court pursuant to s.44 of the AAT Act for reasons given by this Court in its decision of Duncan v Hotop & Anor [2002] FMCA 56.

4. Although it would be inappropriate and presumptuous of this Court to make any further comments or in any way seek to direct the Federal Court in relation to the further conduct of this matter it may be that upon transfer of this application that the Federal Court, in the event that there is no objection, deems the application filed in this Court to be an appeal pursuant to s.44 of the AAT Act and then considers whether or not the application should then be transferred back to this Court. If that course were followed then from a practical point of view it would seem to save the parties significant cost and expense or indeed even if the matter continued to be heard and determined in the Federal Court likewise the material currently filed may be of some use and costs saved.

5. It is for that practical reason and for the reasons otherwise referred to in this brief decision that in my view it is a proper exercise of the Court’s discretion to transfer the proceeding to the Federal Court.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  18 November 2005