Masu Financial Management P/L v FICS and Julie Wong (No 1) [2004] NSWSC 826

Reported Decision : 50 ACSR 554 (2005) 23 ACLC 84

New South Wales Supreme Court

CITATION : Masu Financial Management P/L v FICS and Julie Wong (No 1) [2004] NSWSC 826 HEARING DATE(S) : 15/06/04, 16/06/04 JUDGMENT DATE : 15 September 2004

JUDGMENT OF : Shaw J DECISION : In all of these circumstances, it is my view that there is no infringement of the separation of judicial and administrative powers in the way FICS has been constituted and operates and that, fundamentally, the protective jurisdiction of FICS should be characterised as administrative or arbitral rather than judicial. I am influenced also by the concept that the character of the power (that is, judicial or administrative) is, at least in part, indicated by the nature of the body in which that power is vested. Accordingly, I reject the constitutional challenge mounted by the plaintiff in this case and uphold the submissions of the Commonwealth and the first defendant.

CATCHWORDS : Whether the Financial Industry Complaints Service (FICS) scheme intrudes in an impermissible way upon the exercise of judicial power - Whether such powers of adjudication can only be exercised by a court constituted in conformity with Chapter III of the Australian Constitution LEGISLATION CITED : Commonwealth of Australia Constitution Act, Chapter III Attorney General (Cth) v Breckler (1999) 197 CLR 83 CASES CITED : Attorney General (Cth) v The Queen (1957) 95 CLR 529 (Privy Council) Australian Communications Authority v Viper Communications Pty Ltd (2001) 110 FCR 380; (2001) 183 ALR 735 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Masu Financial Management Pty Ltd (Plaintiff) PARTIES : Financial Industry Complaints Service Ltd (First Defendant) Julie Wong (Second Defendant) FILE NUMBER(S) : SC 30107 of 2002 N Perram (Plaintiff) COUNSEL : J Sexton SC (First Defendant) H Burmester QC (Intervenor Cth A-G) J Higgisson (Intervenor Cth A-G) McLachlan Chilton (Plaintiff) SOLICITORS : R Giles (First Defendant) T Griffith (Second Defendant) A Buckland (Intervenor Cth A-G)