Sedrak v Carney [2001] FCA 92

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 1st and 2nd 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."