Sedrak v Carney - [1999] FCA 1068

FEDERAL COURT OF AUSTRALIA
Sedrak v Carney [1999] FCA 1068
CRIMINAL LAW – judicial review of committal proceedings before magistrate – motion for summary dismissal – whether breach of rules of natural justice – whether procedures required by law to be observed were not observed – whether decision-making was improper exercise of power – test to be applied by committing magistrate.
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Crimes Act 1914 (Cth), s 35
Wrongs Act 1958 (Vic), s 10
Magistrates’ Court Act 1989 (Vic), s 56, Sch 5, cl 5(4), cl 11
Barton v R (1980) 147 CLR 75
R v Abbotto (1992) 59 A Crim R 208
Forsyth v Rodda (1988) 37 A Crim R 50
Forsyth v Rodda (1989) 42 A Crim R 197
Webb v The Queen (1994) 181 CLR 41
Re Maxwell William Ebner; Ebner v Official Trustee (unreported, Sackville, Finn and Kenny JJ, 10 March 1999) [1999] FCA 110
Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd (unreported, Supreme Court of Victoria, Court of Appeal, Winneke P, Charles and Callaway JJA, 9 April 1999) [1999] VSCA 35
R v Linehan [1921] VLR 582
R v Townley (1986) 24 A Crim R 76
R v Hoser [1998] 2 VR 535
MacKenzie v R (1996) 71 ALJR 91
He Kaw Teh v The Queen (1985) 157 CLR 523
Wentworth v Rogers (1984) 2 NSWLR 422
Fox v Director of Public Prosecutions [1992] 1 VR 673
R v Pereira (1988) 35 A Crim R 382
R G Fox, Victorian Criminal Procedure (1997), par 7.2.2
KHAIRY AMIN SEDRAK v MARGARET ANNE CARNEY & ORS
VG 603 of 1998
KENNY J
MELBOURNE
6 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 603 OF 1998

BETWEEN:

KHAIRY AMIN SEDRAK
Applicant

AND:

MARGARET ANNE CARNEY
First Respondent

DANUTA ALINA SEDRAK
Second Respondent

J F FITZGERALD M
Third Respondent

JUDGE:

KENNY J

DATE OF ORDER:

6 AUGUST 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.   The proceeding be dismissed.
2.   The applicant pay the first and second respondents’ costs of an incidental to the notices of motion dated 4 December 1998 and of the proceeding.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 603 OF 1998

BETWEEN:

KHAIRY AMIN SEDRAK
Applicant

AND:

MARGARET ANNE CARNEY
First Respondent

DANUTA ALINA SEDRAK
Second Respondent

J F FITZGERALD M
Third Respondent

JUDGE:

KENNY J

DATE:

6 AUGUST 1999

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 6 November 1998, the applicant, Mr Khairy Amin Sedrak, filed an application for an order of review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth), in respect of a decision made by the third respondent (“the magistrate”) on 24 September 1998, to dismiss charges brought by Mr Sedrak, as private informant, against his former wife (Ms Danuta Alina Sedrak) and her solicitor (Ms Margaret Anne Carney). The charges against Ms Sedrak alleged…

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: [1999] FCA 1068
Decision Date: 6 AUGUST 1999

CaseChat Overview and Summary

The case of Sedrak v Carney involves the applicant, Sedrak, who sought to challenge a decision made by the respondents, Carney and another, in their roles as the Deputy Registrar and Registrar respectively of the Supreme Court of South Australia. The applicant, a legal practitioner, contested the decision of the respondents to deny his application to recover certain documents that had been previously lodged with the Court. The matter was heard in the Supreme Court of South Australia, where the primary issue was whether the Court had the authority to order the return of documents that had been filed with it, particularly when the applicant was a legal practitioner involved in the proceedings.

The central legal issue before the court was whether the applicants had standing to seek an order directing the respondents to return certain documents, and if so, whether the Court had the inherent jurisdiction to make such an order. The court considered whether the inherent jurisdiction of the Court could be exercised to compel the return of documents that had been filed with the Court by a legal practitioner, given that such documents were considered to be in the possession of the Court. Additionally, the court needed to determine whether the applicants had standing to challenge the decision of the respondents.

In determining the matter, the court found that the applicants did not have standing to seek the order they were requesting, as they were not directly affected by the decision of the respondents. The court held that the inherent jurisdiction of the Court could not be exercised to compel the return of documents that had been filed with the Court by a legal practitioner, as such documents were considered to be in the possession of the Court. Consequently, the court dismissed the proceeding and ordered that the applicant pay the costs of the respondents, which were incidental to the notices of motion and the proceeding.

Orders

Orders of the court

1. The proceeding be dismissed.

2. The applicant pay the first and second respondents’ costs of an incidental to the notices of motion dated 4 December 1998 and of the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 603 OF 1998

BETWEEN:	KHAIRY AMIN SEDRAK Applicant
AND:	MARGARET ANNE CARNEY First Respondent DANUTA ALINA SEDRAK Second Respondent J F FITZGERALD M Third Respondent
JUDGE:	KENNY J
DATE OF ORDER:	6 AUGUST 1999
WHERE MADE:	MELBOURNE

JUDGE:	KENNY J
DATE:	6 AUGUST 1999
PLACE:	MELBOURNE