Totev v Sfar [2006] FCA 586

FEDERAL COURT OF AUSTRALIA

Totev v Sfar [2006] FCA 586 VASIL TOTEV v MICHAEL SFAR & ANOR NSD 1246 OF 2005 ALLSOP J 19 MAY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1246 of 2005

BETWEEN: VASIL TOTEV

APPELLANT

AND: MICHAEL SFAR

FIRST RESPONDENT

ENAYET SFAR

SECOND RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 19 MAY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The matter be remitted to the Federal Magistrates Court for rehearing. 2. The costs of the hearing before the Federal Magistrate on 5 July 2005 follow the event upon the rehearing of the matter before the Federal Magistrates Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1246 of 2005

BETWEEN: VASIL TOTEV

APPELLANT

AND: MICHAEL SFAR

FIRST RESPONDENT

ENAYET SFAR

SECOND RESPONDENT

JUDGE: ALLSOP J

DATE: 19 MAY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In this matter I made orders and delivered reasons on 5 May 2006. I indicated that I would provide the parties with an opportunity to put submissions as to the further conduct of the matter and in particular why the matter should not be remitted to the Federal Magistrates Court for rehearing and the terms of such remitter and as to any necessary further orders. 2 By letter dated 11 May 2006 the solicitors for the respondent have indicated to me that their clients do not wish to make submissions as to whether I should exercise the discretion. I have not had any submissions from Mr Totev. 3 I do not think it is appropriate in the circumstances that have arisen for me to exercise the discretion. There will be an issue as to further evidence in relation to the operation of s 52(2)(b) that will be a matter for the Federal Magistrate. That is better dealt with in an exercise of original jurisdiction. 4 I have in substance dealt with all matters other than the question of other sufficient cause for the purposes of s 52(2)(b). The remitter should not be viewed as an opportunity to begin again on all fronts. Whilst I do not propose to place express limitations on the powers of the Magistrate on the remitter, the only basis legitimately remaining open after the appeal is the operation of s 52(2). 5 Thus, in the circumstances, I remit the matter to the Federal Magistrates Court for rehearing. 6 I have not made any order for costs replacing that made by the Magistrate on 5 July 2005. I think the appropriate order is that the costs of the hearing on 5 July 2005 follow the event on the rehearing. 7 Therefore the orders of the Court are: 1. The matter be remitted to the Federal Magistrates Court for rehearing. 2. The costs of the hearing before the Federal Magistrate on 5 July 2005 follow the event upon the rehearing of the matter before the Federal Magistrates Court. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.