FEDERAL COURT OF AUSTRALIA

Rahman v Dayeh [2006] FCA 1362

PRACTICE AND PROCEDURE – transfer of proceedings to Federal Magistrates Court – power of Court to transfer proceedings on own motion under s 32AB of the Federal Court of Australia Act 1976 (Cth) (the Act) – jurisdiction of Federal Magistrates Court to hear transferred matter brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth)

Federal Court of Australia Act 1976 (Cth), s 32AB

Federal Court Rules, O 82  r 7

MOHAMMAD TABIBAR RAHMAN v VANESSA DAYEH AND RICARDO ABUSAIL

NSD 1608 OF 2006

GYLES J

11 OCTOBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The proceedings be transferred to the Federal Magistrates Court.

2.                  The matter be listed for directions before Federal Magistrate Smith on Friday 10 November 2006 at 9.30 am at the John Maddison Tower.

3.                  Costs to date are costs in the cause.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     I have raised with the parties whether this matter should be transferred to the Federal Magistrates Court. Upon consideration of the factors set out in s 32AB (6) of the Federal Court of Australia Act 1976 (Cth) (the Act) and O 82 r 7 of the Federal Court Rules, I deem that it is an appropriate matter to be transferred, assuming that there is jurisdiction to do so. I also need to take into account the opposition of the applicant, which has been put very forcefully, if I may say so, this afternoon.

2                     First of all, there would have been a good deal to be said for the applicant’s submissions prior to the enactment of s 32AB of the Act which now, it seems to me, makes quite clear that there is first of all, jurisdiction to transfer the proceeding, and secondly, if it is transferred, then the Federal Magistrates Court has the same jurisdiction as does this Court to resolve the matter.

3                     It seems to me that an application of this kind under the Administrative Decisions (Judicial Review) Act 1977 (Cth), and any pendant jurisdiction which will be involved in it, is appropriate to be heard by the Federal Magistrates Court. It has been put that the Federal Magistrates Court is an inferior court and that, even if it has jurisdiction, it is best exercised by the Federal Court as a superior court. Federal Magistrates are Federal judicial officers governed by Ch III of the Constitution although, in a sense, judges of an inferior court. Both the qualifications for appointment and the characteristics of those individuals who have been appointed, fit them to undertake jurisdiction which might not previously have been thought appropriate. Even though I must pay regard to the opposition of the applicant, in one sense the applicant may be gaining another level of appeal to this Court.

4                     Taking all those things into account, I propose to transfer the proceedings to the Federal Magistrates Court. I can indicate that my associate has been in touch with the Registry. The matter will be called on before Smith FM who, I may say, has well recognised qualifications in Administrative law, on Friday 10 November next at 9.30 am at the John Maddison Tower. The costs to date are costs in the cause. I should indicate that the solicitor for the respondents has indicated a problem with parties, which needs to be resolved. It seems to me that that, and other procedural aspects, should be dealt with by the learned Federal Magistrate when the matter comes on before him.

Associate:

Dated: 18 October 2006