Sedrak v Carney [2001] FCA 92 (15 February 2001)

Last Updated: 16 February 2001

FEDERAL COURT OF AUSTRALIA

Sedrak v Carney [2001] FCA 92

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Crimes Act 1914 (Cth) ss5(1), 35(1)

Sedrak v Carney [1999] FCA 1644 referred to

KHAIRY AMIN SEDRAK v MARGARET ANNE CARNEY, DANUTA ALINA SEDRAK and MELBOURNE MAGISTRATE R L CRISP

V633 OF 2000

SPENDER, MARSHALL AND WEINBERG JJ

MELBOURNE

15 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 633 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	KHAIRY AMIN SEDRAK APPELLANT
AND:	MARGARET ANNE CARNEY FIRST RESPONDENT DANUTA ALINA SEDRAK SECOND RESPONDENT MELBOURNE MAGISTRATE R L CRISP THIRD RESPONDENT
JUDGES:	SPENDER, MARSHALL AND WEINBERG JJ
DATE OF ORDER:	15 FEBRUARY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of each of the 1^st and 2^nd respondents, of the appeal, to be taxed if not agreed.

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	V 633 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	KHAIRY AMIN SEDRAK APPELLANT
AND:	MARGARET ANNE CARNEY FIRST RESPONDENT DANUTA ALINA SEDRAK SECOND RESPONDENT MELBOURNE MAGISTRATE R L CRISP THIRD RESPONDENT

JUDGES:	SPENDER, MARSHALL AND WEINBERG JJ
DATE:	15 FEBRUARY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

SPENDER J:

1 I agree that the appeal should be dismissed, for the reasons given by Marshall J. There is one matter that I wish to say something about, in addition to expressing my concurrence with the reasons for the dismissal of the appeal.

2 When this appeal was called on this afternoon, Mr Sedrak applied to Weinberg J that he disqualify himself from sitting on this appeal. Weinberg J declined to so disqualify himself. The basis for Mr Sedrak's application lies in the circumstance that Weinberg J was a member of the Full Court of the Federal Court, whose other members were Branson J and Dowsett J, which dismissed an appeal by Mr Sedrak from a decision of Kenny J: see Sedrak v Carney [1999] FCA 1644. The decision by Kenny J was given on 6 August 1999 and the dismissal by the Full Court of the appeal from her Honour's decision was given on 26 November 1999.

3 The nature of those proceedings, which is relevant to the application which Mr Sedrak made concerning Weinberg J today, appears from the reasons for judgment of Kenny J at first instance on the earlier application. Her Honour said:

"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 that she had knowingly given false testimony, contrary to s 35 of the Crimes Act 1914 (Cth), in two affidavits sworn by her in proceedings in the Family Court of Australia between her and Mr Sedrak. Ms Sedrak swore the affidavits in question on 2 January 1997 and on 24 March 1997 respectively. The charges against Ms Carney included that she too had knowingly given false testimony, contrary to s 35 of the Crimes Act 1914 (Cth), in affidavits sworn by her on 22 July 1997 and 15 October 1997 (and in exhibits thereto) in the same proceedings. There was a further charge against Ms Carney that, contrary to s 10 of the Wrongs Act 1958 (Vic), she had maliciously published a defamatory libel in a letter written by her to the Director of Victoria Legal Aid on 15 October 1997 (and which was exhibited to her affidavit of 15 October 1997). After a committal hearing over two days, the learned magistrate found that the evidence was not of sufficient weight to support a conviction on any of the charges against either Ms Sedrak or Ms Carney. Accordingly, his Worship discharged both defendants on all charges brought against them. His Worship also awarded costs against Mr Sedrak, in the sum of $1,550 in the proceeding against Ms Sedrak and in the sum of $2,500 in the proceeding against Ms Carney.

By two notices of motion dated 4 December 1998, the first and second respondents seek an order that the proceeding in this Court be dismissed upon the grounds that (1) there is no reasonable cause of action; or (2) the proceeding is frivolous or vexatious ... At the hearing of the motion, Mr Sedrak appeared in person, and Ms Carney and Ms Sedrak appeared by counsel. The magistrate informed the Court that he did not wish to take an active part in the proceeding and would abide the decision of the Court."

4 This appeal therefore is similar to the earlier appeal (which was dismissed by the Full Court) from the judgment dismissing the application of Mr Sedrak by Kenny J. There are differences, however. The magistrate was different. The affidavits which were said to be the source of various allegations of perjury were different. But the respondents, in the private informations, were the same, that is to say the former wife of Mr Sedrak and her solicitor.

5 It is in that context that the application for disqualification was made. The High Court has made it plain that a judge ought not disqualify himself or herself unless proper grounds exist which make it wrong for the judge to continue to hear a matter. A judge's primary duty is to discharge his or her obligations as a judge.

6 Weinberg J expressed the view, on the application by Mr Sedrak that he disqualify himself, that he felt that there was no basis shown why he should not continue to sit as a Judge of this appeal Court and that neither the circumstance of his being a member of the earlier appeal Court, nor the circumstance that an application for special leave is pending in the High Court from the judgment of that earlier Full Court, were circumstances calling for his declining to sit as a member of this Court, and that neither of those circumstances meant that he would be unable to bring an open and unprejudiced mind to the determination of this current appeal. So the Court was constituted, as it is at the moment, for the hearing of Mr Sedrak's appeal.

7 I earlier indicated my agreement with the reasons for judgment of Marshall J that the appeal should be dismissed.

MARSHALL J:

8 This is an appeal from a judgment of a single Judge of the Court, Sundberg J ("the primary Judge") given on 26 July 2000.

9 The primary Judge dismissed an application by the appellant for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of a Magistrate's decision to discharge the first and second respondents in committal proceedings. The committal proceedings followed the institution of a private prosecution by the appellant against the first and second respondents in respect of alleged perjury committed in connection with proceedings in the Family Court of Australia.

10 The charges filed against the second respondent (the appellant's former wife) claimed that she had breached s35(1) of the Crimes Act 1914 (Cth) by "knowingly (giving) false testimony touching any matter" in the Family Court proceedings. The charges filed against the first respondent, (the second respondent's solicitor) alleged that she had "assisted" or "encouraged" the second respondent's perjury contrary to s5(1) of the Crimes Act 1914 (Cth).

11 The grounds of review relied upon by the appellant before the primary Judge were as follows:

* the Magistrate took into account an irrelevant consideration;

* the Magistrate ignored thirteen relevant considerations;

* the Magistrate exercised a discretionary power without regard to the nature of the offences;

* the Magistrate committed errors of law;

* the Magistrate denied the appellant natural justice; and

* the Magistrate was biased.

12 The primary Judge dealt comprehensively with each of the above allegations and did not find any of them to be made out.

13 The appellant, in his written submissions filed with respect to the appeal, appears to take issue with most, if not all of the primary Judge's conclusions on the topics referred to at [11] above. In addition, the submissions before the primary Judge and before this Court, essentially consist of an argumentative revisiting of the factual merits of the Magistrate's decision.

14 No useful purpose is served by repeating the conclusions of the primary Judge on each alleged error made by the Magistrate. I have carefully considered the appellant's submissions made both in writing and orally before the Court today and have formed the view that the primary Judge was correct for the reasons he gave in dismissing the application before him. Nothing has been advanced by the appellant to convince me to the contrary. I would dismiss the appeal.

WEINBERG J:

15 I agree, for the reasons given by Marshall J, that the appeal should be dismissed.

SPENDER J:

16 The order of the Court is that the appeal be dismissed. The only other matter is the question of costs of the appeal. The Court is of the opinion that there has been no reason shown why the ordinary order as to costs ought not be made. The further order of the Court is that the appellant pay the costs of each of the first and second respondents, of the appeal, to be taxed if not agreed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Marshall and Weinberg.

Associate:

Dated: 16 February 2001

The appellant appeared in person.

Counsel for the 1st Respondent:	Mr A Rodbard - Bean
Solicitor for the 1st Respondent:	Moores Legal
Counsel for the 2nd Respondent:	Mr R D Shepherd
Solicitor for the 2nd Respondnet:	Victoria Legal Aid
Date of Hearing:	15 February 2001
Date of Judgment:	15 February 2001 (ex - tempore, as revised from the transcript)