Re Bryant; Ex parte Guarino

[2001] HCA 5

HIGH COURT OF AUSTRALIA

HAYNE J

IN THE MATTER OF AN APPLICATION FOR WRITS
OF CERTIORARI AND PROHIBITION AGAINST
DIANA BRYANT (IN HER CAPACITY AS
CHIEF FEDERAL MAGISTRATE) AND ANOR        RESPONDENTS

EX PARTE PAUL SILVIO GUARINO  APPLICANT

Re Bryant; Ex parte Guarino
[2001] HCA 5
Date of Order: 31 January 2001
Date of Publication of Reasons: 14 February 2001
M9/2001

ORDER

Application dismissed.

Representation:

The applicant represented himself.

No appearance for the respondents.

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re Bryant; Ex parte Guarino

Federal Magistrates Court – Federal Magistrates Act 1999 (Cth) – Validity.

Constitution, ss 71, 72, 73, 79, 80.
Federal Magistrates Act 1999 (Cth), ss 11, 17, 20, 37(2).
Federal Magistrates (Consequential Amendments) Act 1999 (Cth), Scheds 11, 12.

Name of Case

Begin catchwords here.

Words and phrases – .

Legislation.

1. HAYNE J.   The applicant, Paul Silvio Guarino, seeks an order nisi for prohibition and certiorari directed to the Chief Federal Magistrate.  He seeks prohibition prohibiting the Chief Federal Magistrate (and presumably any other Federal Magistrate) from proceeding further with a matter identified as No ZM 4951 of 2000 in which his wife, Andrea Katherine Guarino, seeks dissolution of their marriage.  This proceeding was filed on 28 November 2000 and, as I was told, is fixed for hearing tomorrow, 1 February 2001.

2. Section 78B notices have been sent to the Attorneys‑General of the Commonwealth and the States but the probability is that some, at least, of those notices have not yet been received.  Given, however, that Mr Guarino seeks an order nisi and that he seeks, in effect, to postpone, if not stop, tomorrow's hearing, I concluded that it was desirable to proceed to hear and determine the application for order nisi without waiting for a reasonable time to elapse between service of the s 78B notices and proceeding further.

3. Apart from seeking prohibition, Mr Guarino also seeks certiorari to quash what is said to have been a decision of the Chief Federal Magistrate made on 28 November 2000 to accept for filing the wife's application for dissolution of marriage.

4. The draft order nisi, which has been filed, gives as the sole ground of the application:

   "The Chief Magistrate and others delegated by her have no jurisdiction to act upon matters of divorce pertaining to section 51 of the Constitution … and that the appointment of a Federal Magistrate is unconstitutional pertaining to Section 71, 72 and 79 of the said Constitution."

5. That ground is amplified a little in the applicant's affidavit in support of his application, it being said that:

   first, "appoint[ing] and/or recognis[ing] Federal Judicial power of 'Federal Magistrates' in a Federal Court … is to be seen as offending … section 79 of the 'Constitution'";

   secondly, s 20 of the Federal Magistrates Act 1999 (Cth) ("the Act") offends s 79 because "it … gives right to the said Federal Magistrates to be recognised as appointed Judges…