FEDERAL COURT OF AUSTRALIA

Dutton v The Republic of South Africa [1999] FCA 498

EXTRADITION – Extradition Act 1988 (Cth) (“the Act”) – whether Court may stay extradition proceeding as abuse of process – whether Court may order payment of costs of extradition proceeding – whether abuse of process to initiate second extradition proceeding without paying costs of earlier unsuccessful proceeding – whether s16(1) notice may be withdrawn – whether person entitled to be heard of whether Attorney-General should direct release from remand

ESTOPPEL  - Res judicata – former adjudication – whether party to be excused from failure to bring forward whole case – Anshun estoppel

COSTS – Federal Court of Australia Act 1976 (Cth) – whether Court has jurisdiction to order costs in extradition proceedings before a magistrate

Extradition Act 1988 (Cth), ss 15, 16, 19, 21

Acts Interpretation Act 1901 (Cth), s 33(1)

Federal Court of Australia Act 1976 (Cth), s 43

Federal Court Rules, O20 r 1, O 62, rr 3, 5

Republic of South Africa v Dutton [1999] FCA 2, considered

Republic of South Africa v Dutton (1997) 77 FCR 128, cited

Jackson v Goldsmith (1950) 81 CLR 466, considered

Effem Foods Pty Ltd v Trawl Industries of Australia (recs and mgrs apptd – in liq) (1993) 43 FCR 110, cited

Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287, cited

Trawl Industries of Australia Pty Limited (In Liquidation) v Effem Foods Pty Limited (1992) 36 FCR 406, considered

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, applied

Henderson v Henderson (1843) 3 Hare 100 [67 ER 313], considered

R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26, applied

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, cited

Fancourt v Mercantile Credits Limited (1983) 154 CLR 87, considered

Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386, considered

Australian Capital Equity Pty Ltd v Beale (1993) 41 FCR 242, considered

State of South Australia v O’Shea (1987) 163 CLR 378, considered

Oates v Attorney-General (Cth) (1998) 156 ALR 1, considered

Jackson v Sterling Industries Limited (1987) 162 CLR 612, considered

Papazoglou v Republic of the Philippines (1997) 74 FCR 108, followed

McDade v Attorney- General of the Commonwealth  [1998] FCA 448, cited

Federal Republic of Germany v Parker , [1998] FCA 803, cited

Burns Philip & Co Ltd v Bhagat (1993) 1 VR 203, cited

EDWARD ISAAC DUTTON v THE REPUBLIC OF SOUTH AFRICA, ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA, THE MINISTER FOR JUSTICE AND CUSTOMS OF THE COMMONWEALTH OF AUSTRALIA, THE CHIEF MAGISTRATE OF NEW SOUTH WALES

N 196 of 1999

BRANSON J

SYDNEY

23 APRIL 1999

THE COURT ORDERS THAT:

The application be dismissed.

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

REASONS FOR JUDGMENT

Introduction

1                     This is the third proceeding instituted in this Court in which the applicant has sought orders, in effect, to restrain the conduct of a proceeding by a magistrate under s 19 of the Extradition Act 1988 (Cth) (“the Act”) to determine whether the applicant is eligible for surrender in relation to an extradition offence for which his surrender is sought by the Republic of South Africa.  The other proceedings instituted by the applicant are proceeding NG 137 of 1998 which was heard by Madgwick J (“the first proceeding”) and proceeding NG 263 of 1998 which was determined by Burchett J (Dutton v Republic of South Africa [1999] FCA 2) (“the second proceeding”).

2                     The respondents have moved on notices of motion dated 30 March and 1 April 1999 for orders that the application be struck out or permanently stayed or in the alternative that the application be dismissed.

3                     By his application, which is dated 9 March 1999, the applicant claims the following:

“1.       A declaration that the Notice dated 21^st January 1998 given by the Third Respondent (“the Notice”), purportedly under s 16(1) of the Extradition Act 1988 (“The Act”), in respect of the Applicant is a nullity in that the Second and/or Third Respondents failed to discharge their obligations under s 16 of the Act.

2.                  An order setting aside the Notice.

3.                  A declaration that all proceedings taken upon the Notice to date have been invalid and are a nullity.

4.                  In the alternative to the declaration referred to in paragraph 4, a declaration that all proceedings taken upon the Notice from the time the Third Respondent refused to consider material relating to the extradition objections and lack of dual criminality provided to the Third Respondent, have been invalid and are a nullity.

5.                  An order that the First Respondent pay the costs incurred by the Applicant in successfully defending the previous extradition applications in relation to the same alleged conduct and the same charges, before the Magistrate at Central Local Court.

6.                  An Order that the present application for extradition be stayed as an abuse of process unless and until the First Respondent pays the costs of the Applicant in successfully defending the previous extradition applications made by the First Respondent, in relation to the same alleged conduct and the same charges as the present application, in the Magistrates Court proceedings.

7.                  An order that the extradition hearing before the Fourth Respondent, or any magistrate, pursuant to section 19 of the Act be stayed until the judgment of this Honourable Court on this application is made.

8.                  An order that the Fourth Respondent forthwith release the Applicant from remand and all the bail conditions.

9.                  Such further or other orders as the court in the circumstances deems appropriate.

10.              Costs.”

Background Facts

4                     Burchett J in his reasons for judgment in second proceeding outlined the factual background to the application before him as follows:

“[The applicant] was arrested in South Africa on 28 December 1989, and put upon trial for fraud in the Supreme Court of South Africa on 27 January 1992.  However, that trial was never completed because the applicant left South Africa while it was still proceeding, about two years later.  On 24 November 1995, he was arrested in Australia upon an extradition warrant pursuant to a request for his extradition made by the Republic of South Africa on 3 October 1995.  In the subsequent extradition proceedings under s 19 of the Extradition Act, a magistrate rejected (because of non-compliance with    s 65(6) of the Evidence Act 1995) certain evidence tendered by the Republic to satisfy the “sufficient evidence” test, which was required to be satisfied by virtue of the Extradition (Republic of South Africa) Regulations as they then stood.  (For the meaning and effect of this test, see Ujiie v Republic of Singapore (1996) 66 FCR 323.)  As a result, the magistrate on 29 November 1996 determined, under s 19(10) of the Extradition Act, that the applicant was not eligible for surrender to South Africa in relation to the alleged extradition offences, and ordered that the applicant be released.

…

Being dissatisfied with the magistrate’s rejection of its evidence, the Republic sought a review of her order by the court under s 21(1) of the Act.  The matter came before Hill J, who considered that a determination of certain preliminary questions would be useful, and therefore embarked on a limited hearing.  His decision is reported: Republic of South Africa v Dutton (1997) 77 FCR 128.  That decision was handed down on 1 August 1997.  Although the answers given by Hill J to the preliminary questions debated before him did not dispose of the application for review of the magistrate’s orders, they seem to have been regarded as unfavourable by the applicant, for an application for an extension of the time to apply for leave to appeal was filed on his behalf on 5 September 1997.  Time was extended by order of Tamberlin J on 9 October 1997, but the question whether the case was appropriate for a grant of leave to appeal was left outstanding, presumably on the basis that it would come before a full court.

Before the matter could get to a full court, events occurred to cut short any question of appeal.  These events had their origin in a significant amendment of the Extradition (Republic of South Africa) Regulations, which came into effect on 21 May 1997.  By that amendment, the burden on the Republic to satisfy the “sufficient evidence” test was eliminated.  On 9 January 1998, the South African High Commission in Canberra made a further request (“the second request”) for the extradition of the applicant, and on 21 January 1998 a notice which purported to comply with s 16 of the Act issued in relation to the second request.

…

Following the issue of the notice of 21 January 1998, the applicant was again arrested on 17 February 1998, and a notice of motion was filed on 25 February 1998 in the application for review which had come before Hill J, seeking leave to discontinue that application.  Plainly, if the Republic wished to pursue proceedings before a magistrate under s 19 in respect of the second s 16 notice, this was necessary, since the continued prosecution of both proceedings at the same time would have been oppressive.  Before that motion came on for hearing by Hill J, the applicant, Mr Dutton, had made an application of his own to Madgwick J, on 4 March 1998, in which he sought an injunction to restrain the launching of a fresh extradition proceeding.  This application by Mr Dutton led to the making by Madgwick J on 4 March 1998 of a consent order, as follows:

“By consent and without admissions:

NOTE:

1.                  The First and Third Respondents shall submit to Magistrate Moore as soon as practicable that special circumstances exist justifying the Applicant being remanded on bail pursuant to section 15(6) of the Extradition Act 1988 upon such conditions as bail as the Magistrate may determine but including the following:

a.                  Daily reporting to the Officer-in-Charge Manly Police Station.

b.                  The provision of security in a substantial sum.

c.                   2 sureties to undertake to forfeit a substantial sum of money in the event of breach of bail.

d.                  Applicant to reside at 3 Pavilion Street, Queenscliffe.

e.                   Applicant to notify Office [sic] in Charge Australian Federal Police of any change of address no later than 24 hours before any such change.

f.                    Applicant not to approach any overseas/international points of departure from Australia.

g.                  Applicant to surrender all passports to Officer in Charge, Australian Federal Police, Sydney

h.                  Applicant not to apply for any international travel documents.

2.                  The intention of the parties is that in the event that bail is granted these proceedings shall be dismissed with no order as to costs.

3.                  In the event that bail is either, not granted, or the Magistrate does not make a determination of the Applicant’s pending bail application then the proceedings are to [be] mentioned before this Court as soon as possible.

4.                  Upon such further mention, if any, the First and Third Respondents will agree as follows:

(i)                 Not to challenge the jurisdiction of the Court to make an interim order with respect to the release of the Applicant from custody forthwith upon the conditions referred to in paragraph 1 hereof.

(ii)               To have these proceedings stood over for such period as may be necessary to enable the First Respondent’s application for the extradition of the Applicant to South Africa, made in January 1998, to be heard and determined by a Magistrate pursuant to section 19 of the Extradition Act 1988.

5.                  Should paragraph 3 hereof become applicable then:

(i)                 The Applicant undertakes to this Court not to oppose the hearing and determination by a Magistrate as soon as practicable of the said extradition request pursuant to section 19 of the Act.

(ii)               The Applicant consents to these proceedings being stood over for such period as may be necessary to enable the said extradition request to be heard and determined by a Magistrate.

(iii)             Upon the determination of the said extradition request the Applicant shall as soon as practicable seek (by consent) an order that these proceedings be dismissed with no order as to costs.

ORDER:

6.                  Subject to paragraph 2 hereof, liberty to any party to apply on 7 days notice generally but on 24 hours notice with respect to any matter concerning compliance with the conditions set out in paragraph 4(i) hereof.”

In reading this order made by Madgwick J, the reader should understand that the first respondent was the Republic of South Africa and the third respondent was the Attorney-General of the Commonwealth of Australia.  “Magistrate Moore” was, of course, the magistrate before whom the second s 16 notice had come, and he is now the third respondent (who has, in accordance with the usual practice, simply submitted to the order of the court) in the proceeding before me.

The matter then came back before Hill J on 6 March 1998, on the motion for leave to discontinue filed by the Republic of South Africa, when he dismissed its application for review, ordering that the order of the magistrate of 29 November 1996 “pursuant to s 19(10)(a) of the Extradition Act 1988 as amended that the First Respondent be released is confirmed.”  He ordered the Republic to pay Mr Dutton’s costs of the application for review and of his application for leave to appeal, in respect of which his Honour granted Mr Dutton leave to withdraw.

To complete the outline of events, it is only necessary to add that on 5 March 1998 bail was duly granted to the applicant as contemplated by the consent order made by Madgwick J.”

5                     The proceeding under s 19 of the Act consequent upon the issue on 21 January 1998 of the second s 16 notice (“the second notice”) were adjourned pending the determination of the second proceeding.  The following declarations and orders were sought in the second proceeding:

“1.       A declaration that the First and Second Respondents each of them, their servants and agents are estopped from commencing or continuing with proceedings under section 19 of the Extradition Act 1988 as amended (“the Act”) which are or will be based upon those facts and circumstances comprised in the material that was before Magistrate Syme in the proceedings between the First Respondent and the Applicant wherein she determined on the 28^th day of November 1996 that the Applicant was not eligible for extradition to South Africa.

2.                  A declaration that by reason and as a consequence of the order made by Mr Justice Hill on 6^th March 1998 in the proceedings numbered NG 975 of 1996 and NG 718 of 1997 dismissing the application for review by the First Respondent and the making of the order confirming the order of Magistrate Syme that the Applicant was not eligible for extradition, the First and Second Respondent are estopped from commencing or continuing with the application under section 19 of the Act presently before the Third Respondent.

3.                  A declaration that by reason of the order made by Mr Justice Hill on the 6^th March 1998 where by this Honourable Court confirmed that the Applicant is not eligible for extradition, the certificate dated the 21 January, 1998 issued by the Second Respondent under section 16(1) of the Act (a copy of which is annexure “G” to the affidavit sworn by Robert Williams on 30^th March 1988 herein referred to below as “the said section 16(1) certificate”) cannot be relied upon in the proceedings before the Third Respondent or otherwise for the purposes under section 19(1) of the Act.

4.                  A declaration that the Applicant as from 6^th March 1998 by reason of the determination under section 21(2) of the Act by this Honourable Court as not being eligible for extradition to South Africa, the remand of the Applicant by the Third Respondent whether on bail or otherwise was and remains unlawful.

5.                  An order that the First and Second Respondents their servants and agents be restrained from commencing or continuing with the proceedings for the determination of the eligibility of the Applicant for extradition before the Third Respondent.

7.                  An order that the application under section 19(1) of the Act by the First and Second Respondents before the Third Respondent be stayed as unduly harsh, oppressive and as an abuse of process..

8.                  An order that the Third Respondent forthwith release the Applicant from remand and from all of the bail conditions imposed upon the Applicant by the order made on 5^th day of March 1998.”

9.                  Such further or other orders as the Court in the circumstances deems appropriate.

10.              Costs

[numbering in original]

On 7 January 1999 Burchett J dismissed the application in the second proceeding.

Should the application be struck out or permanently stayed?

6                     The respondents contend that the relief claimed in the present application either was sought, or should have been sought in the first or the second proceeding.  That is, the respondents claim that the present proceeding must fail either because of the principle of res judicata or because the applicant is bound by an issue estoppel.

Res Judicata

7                     The exposition by Fullagar J in his dissenting judgment in Jackson v Goldsmith (1950) 81 CLR 446 at 466 of the rules of law governing the defences of res judicata and similar defences has been regarded by the Full Court of this Court as authoritative  (see for example, Effem Foods Pty Ltd v Trawl Industries of Australia (recs and mgrs apptd – in liq) (1993) 43 FCR 510 per Northrop and Lee JJ at 512 and Burchett J at 533; Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 295).  In Jackson v Goldsmith Fullagar J at 466 said:

“Those rules are not, I think, in doubt, and they are not likely often to give rise to serious difficulty so long as it is recognised that there are two quite distinct and different principles.  The distinction has been sometimes obscured by the absence of a generally accepted terminology.  But it was clearly  understood and appreciated by all the learned judges of the Full Court in the present case.  On the whole I think myself that the two best terms to use are “res judicata” and “issue estoppel.”  The latter term seems to have been first used by Higgins J in Hoysted v Federal Commissioner of Taxation.  It has often been used since, and it was adopted by Dixon J in Blair v Curran.  It has the great advantage of being quite unambiguous.  The term “estoppel by record” is an alternative to “issue estoppel” and it is a term which has been in use for a very long time.  But while it is not open to any prima-facie objection, it has become ancipitis usus, being used sometimes as equivalent to issue estoppel, sometimes as equivalent to “res judicata” and sometimes as describing a supposed common principle from which both the rule as to “res judicata” and the rule as to issue estoppel are derived.

The rule as to “res judicata” can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action.  This rule is not, to my mind, correctly classified under the heading of estoppel at all.  It is a broad rule of public policy based on the principles expressed in the maxims “interest reipublicae ut sit finis litium” and “nemo debet bis vexari pro eadem causa”.

The rule as to issue estoppel is generally stated in the words of Lord Ellenborough in Outram v Morewood.  His Lordship said that parties and privies are “precluded from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them … has been, on such issue joined, solemnly found against them.”  This is, I think, a true case of estoppel, analogous to estoppel by deed and estoppel by representation.  The same rule was concisely stated by Dixon J in Blair v Curran where his Honour said:- “A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.” [citations omitted]

8                     In Trawl Industries of Australia Pty Limited (In liquidation) v Effem Foods Pty Limited (1992) 36 FCR 406 at 418 Gummow J used the terms “cause of action estoppel” and “Anshun estoppel”.  His Honour observed as to res judicata or cause of action estoppel:

“The question is whether Trawl seeks to vex Effem again upon a “cause of action” it lost in the Supreme Court.  It is said that for the estoppel to operate, the cause of action in each proceeding must be the same ….  But as Brennan J pointed out in Anshun (at 610-613) the phrase “cause of action” is used imprecisely and in several senses.  These include:

(i)                 the series of facts which the plaintiff must allege and prove to substantiate a right to judgment;

(ii)               the legal right which has been infringed; and

(iii)             the substance of the action as distinct from its form.

… for the law of Australia it is most suitable to focus upon the substance of the two proceedings as distinct from their form.  This reflects the constitutional basis of federal jurisdiction ….  Also, it allows for the very many controversies which now come before superior courts, federal and State, without pleadings.”

9                     The substance of the applicant’s complaint in the first proceeding, as revealed by the application and points of claim filed by him in that proceeding, was that the second notice had issued whilst the review proceedings being heard by Hill J had not been finally determined and whilst the orders made by Magistrate Syme remained operative.

10                  The substance of the applicant’s complaint in the second proceeding, as revealed by the application and points of claim filed by him in that proceeding, was that by reason, and as a consequence, of the order made by Hill J dismissing the review proceeding, the Republic of South Africa was estopped from commencing or continuing with any further proceeding to determine the eligibility for extradition of the applicant which was wholly or partially based on evidence relied on before Magistrate Syme.

11                  The issues of whether the third respondent properly held the opinions referred to in s 16(2) of the Act at the time that the second notice was issued, whether the second or third respondents ought subsequently to have revoked the second notice, or whether the present application for extradition is an abuse of process by reason of the failure of the first respondent to pay the applicant’s costs of defending the earlier extradition proceeding, were either not raised in the first and second proceedings or were peripheral to the matters really in dispute in those proceedings.

12                  I conclude that the substance of the first and second proceedings respectively were different from the substance of the present proceeding.  I am not satisfied that this is a case of res judicata.  The applicant is not, as it seems to me, here seeking to litigate a cause of action which has merged into judgment in either or both of the first and second proceedings (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 per Gibbs CJ, Mason and Aikin JJ at 597).

Issue Estoppel or Anshun Estoppel

13                  However, it is necessary to consider whether this application falls within the extended principle stated by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare, at p.115 [67 E.R. at p.319] cited by Gibbs CJ, Mason and Aikin JJ in Anshun’s case at 598:

“… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.  The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

14                  The principle of issue estoppel based on the rule identified in Henderson v Henderson will have application in this case if the matters now sought to be raised were so relevant to the subject matter of the earlier proceedings, or one of them, that it was unreasonable for the applicant not to rely on them (Anshun’s case per Gibbs CJ, Mason and Aikin JJ at 602-3).

15                  It appears that the matters now sought to be raised will be so regarded if the application, if successful, will result in a judgment which conflicts with the judgments in the first or second proceeding or either of them (Anshun’s case per Gibbs CJ, Mason and Aikin JJ at 603; R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26 at 34).

16                  In R v Balfour Wilcox J gave consideration to the circumstances in which a judgment concerning the validity of an administrative act may be in conflict with an order sought in later proceedings.  In that case the prosecutor sought to challenge the validity of a certificate issued under s 8(3) of the Petroleum Products Subsidy Act 1965 (NSW) and a supporting certificate issued under Commonwealth legislation.  In an earlier proceeding in the Supreme Court of New South Wales, the court had identified defects in the procedures which led to the issue of the s 8(3) certificate but had declined to hold the s 8(3) certificate to be invalid.  That decision was upheld on appeal with the result that the certificate remained operative at law despite the defects.  Wilcox J pointed out at 34 that, in the circumstances, what the prosecutor was seeking to do was to reverse the effect of the decision made in the Supreme Court.  His Honour observed that the effect of success in the attack upon the validity of the s 8(3) certificate would be to obtain an order inconsistent with the decision of the Supreme Court declining to declare that certificate to be invalid.  Wilcox J dismissed the proceeding in the Federal Court as an abuse of process.

17                  In R v Balfour at 35 Wilcox J recognised the potential harshness of the principle of estoppel which proscribes the bringing of an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.  In R v Balfour the prosecutor had been unable to litigate in the Supreme Court the validity of the certificate issued under Commonwealth legislation which was said to support the s 8(3) certificate; it would have needed to commence a proceeding in a different court and for that purpose to have obtained an adjournment of the Supreme Court proceeding.  Wilcox J noted, however, that the same issues of fact would have been involved in each proceeding so that there appeared to be no injustice in denying the prosecutor the opportunity to make the criticisms a second time.

18                  The present application is not complicated by the involvement of more than one jurisdiction.  In the first proceeding the applicant raised the issue of the validity of the second notice and the lawfulness of the extradition proceeding under s 19 of the Act which was based on the second notice.  The transcript of the hearing before Madgwick J reveals [p 24] that counsel for the applicant adverted to the limitations imposed by s 16(2) of the Act on the power of the Attorney-General to issue a notice under s 16(1).  Similarly in the second proceeding the applicant raised the issue of the validity of the second notice and of the s 19 extradition proceeding.

19                  On 4 March 1998, Madgwick J made the consent orders referred to above.  Such orders are expressed to be made “without admissions”.  For that reason, I consider that only limited weight can be given to these orders on this application.

20                  However, on 7 January 1999, Burchett J dismissed the application in the second proceeding.  Paragraph 21 of his Honour’s reasons for judgment reads as follows:

“As I have made clear, I did not understand counsel, in the argument presented to me, to have attempted to resuscitate the challenge to the Attorney-General’s decision under s 16 which was abandoned before Madgwick J.  However, if that decision, was well as the pursuit of the s 19 proceeding, should be regarded as attacked by the submission that the continued pursuit of the application for extradition is an abuse of process, I would reject this submission for reasons which I have already given.  I do not consider that any abuse of process has been shown.”

21                  In R v Balfour at 33-34 Wilcox J said:

“Although this was not so clear in earlier times, it is now accepted that, however apparent the defect may be, an administrative decision remains good in law unless and until it is declared to be invalid by a court of competent jurisdiction. …The principle is expressed by HWR Wade, Administrative Law (5^th ed 1982), p 314:

             “The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances.  The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff’s lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason.  In any such case the ‘void’ order remains effective and is, in reality, valid.”

In the present case the position is that the validity of the s 8(3) certificate was litigated before Hunt J.  Notwithstanding his Honour’s conclusion regarding the significance of the absence of a prior cl A4(3) certificate, the Supreme Court declined to hold the s 8(3) certificate to be invalid.  That decision was upheld on appeal.  The result, in law, is the same as if Hunt J had perceived no defect in the procedure adopted by Mr Balfour.  He dismissed Parkes Rural Distributions’ challenge to the validity of the certificate, leaving the certificate operative in law.

Under these circumstances I think that it is correct to say that what the prosecutor seeks to do in this proceeding is to reverse the effect of the decision made in the Supreme Court.” [citations omitted]

22                  By analogy of reason, if seems to me that it may be said that what the applicant seeks to do in this proceeding is to reverse the effect of the decision and order of Burchett J in the second proceeding.  For this reason alone it would seem that his application should be dismissed.  I prefer, however, to base my decision in this case principally on other factors.

23                  The applicant, having chosen in the first and second proceedings to challenge the validity of the second notice, and of any extradition proceeding based on such notice, was obliged, except under special circumstances, to bring forward his whole case.  So far as the first proceeding was concerned, special circumstances may well have been constituted by the fact that the applicant had unexpectedly been taken into custody and his release was being sought as a matter of urgency.  However, no relevant special circumstances touching upon the second proceeding have been here identified.  The applicant was no longer in custody when the second proceeding was instituted.  The applicant says that some of the material which gave rise to the present application “was not brought to the attention of the Applicant until a later date”.  However, on the evidence before me I am not able to be satisfied that, with reasonable diligence, such material could not have been brought forward in the second proceeding.  An exception may be the complaint that the second and third respondents denied the applicant natural justice and procedural fairness when they failed to consider whether certain material placed before them by the applicant might warrant the withdrawal of the second notice.  I consider this issue further below.

24                  I conclude that, subject to the issue of the failure of the second and third respondents to consider whether the second notice should be withdrawn, the applicant is estopped from raising in this proceeding the issue of the validity of the second notice and of the validity of the extradition proceeding so far as it is dependent on the validity of the second notice.

25                  The remarks of Hobhouse J in Dallal v Bank Mellat [1986] QB 441 at 452 cited by the High Court in Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 510-511 and again by Wilcox J in Bryant v Commonwealth Bank may aptly be repeated here:

“There must be an end to litigation.  A defendant must be protected against the repeated bringing of actions by the same person in respect of substantially the same subject matter.  Therefore, where this procedural abuse is identified, the court provides the defendant with the procedural remedy of striking out.”

NO REASONABLE CAUSE OF ACTION

26                  The respondents contend that to the extent, if any, that the applicant is not estopped from prosecuting this proceeding, the proceeding should be dismissed as disclosing no reasonable cause of action (O 20 r 2 of the Federal Court Rules).  The power to order summary judgment is one which is to be exercised with great care and should not be exercised unless it is clear that there is no real question to be tried (Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 99).

Denial of Procedural Fairness

27                  As to the applicant’s complaint that the second and third respondents denied the applicant procedural fairness by failing to consider whether the second notice should be withdrawn, I accept the contention of the respondents that the statutory scheme contained in the Act does not allow for the withdrawal of a s 16 notice.

28                  In Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389 the Full Court of this Court observed:

“The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered.  In summary form, the scheme is as follows:  The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1).  Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19.  Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender.  If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.”

29                  Section 16(2) of the Act places restrictions upon the discretion given to the Attorney-General to issue a notice under s 16(1).  Section 16(2) provides that:

“(2)     The Attorney-General shall not give the notice:

(a)        unless the Attorney-General is of the opinion:

(i)         that the person is an extraditable person in relation to the extradition country; and

(ii)        that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or

(b)        if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.”

30                  The fact of the Attorney-General having given a notice under s 16(1) is one of the circumstances necessary to enliven the obligation of a magistrate to conduct an extradition proceeding under s 19(1) of the Act.  It is to be noted that s 19(1) refers to the fact of the Attorney-General having given a notice and not to the fact of there being in existence a          s 16(1) notice which has not been withdrawn.

31                  It is also to be noted that s 17 of the Act provides for the Attorney-General to direct a magistrate to release a person on remand under s 15 of the Act in two circumstances: first, if the Attorney-General decides not to issue a s 16(1) notice in respect of the person, and second, if the Attorney-General considers for any other reason that the remand should cease.  It seems clear that the expression “any other reason” in this context is sufficient to encompass a situation in which the Attorney-General has ceased to hold one of the opinions referred to in s 16(2) of the Act.  That is, the statutory scheme of the Act allows, in such a circumstance, for the Attorney-General to direct the release of the person referred to in a s 16(1) notice.  However, the statutory scheme does not expressly provide for the withdrawal of a s 16(1) notice.  It is reasonable, it seems to me, to conclude that this is because the magistrate to whom an application is made under s 19(1)(c), and the extradition country, have obligations and rights respectively under s 19 which are dependent upon the giving of the notice under    s 16(1).  In my view, a notice under s 16 of the Act, once issued, can not be withdrawn.

32                  The applicant placed reliance on s 33(1) of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”).  Section 33(1) provides as follows:

“Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.”

Section 33(1) does not refer to the withdrawal or cancellation of the exercise of a power.  If it did, I would conclude that Act discloses a contrary intention so far as the power conferred by s 16(1) is concerned.  Section 33(3) of the Acts Interpretation Act, which does include a reference to power to “repeal, rescind [and] revoke”, is limited in its operation to powers concerning instruments of a legislative character (Australian Capital Equity Pty Ltd v Beale (1993) 41 FCR 242).  It has no application in respect of the issue of a notice under s 16(1) of the Act.

33                  Further, in my view, it is a necessary implication from the statutory scheme established by the Act that the Attorney-General is not obliged to accord to a person in the position of the applicant an opportunity to be heard on the question of whether the Attorney-General should form the view that his or her remand under s 15 of the Act should cease - at least to the extent that such person wishes to ventilate issues required to be considered by the magistrate who conducts the extradition proceeding under s 19 of the Act.  It would be disruptive of the scheme established by the Act if a person in the position of the applicant were to have repeated rights to be heard in respect of the same issues.  The statutory scheme viewed in its entirety gives the applicant adequate opportunity to present his case on the issues of extradition objections and “dual criminality”.  It does so by providing in s 19(2) that a person is only eligible for surrender in relation to an extradition offence if the magistrate who conducts the extradition proceeding is appropriately satisfied in respect of these matters (State of South Australia v O’Shea (1987) 163 CLR 378 per Mason CJ at 389; Oates v Attorney-General (Cth) (1998) 156 ALR 1 at 12).

34                  I conclude that the application, to the extent that it seeks a declaration “that all proceedings taken upon the Notice from the time the Third Respondent refused to consider material relating to the extradition objections and lack of dual criminality provided to the Third Respondent, have been invalid and are a nullity”, discloses no reasonable cause of action.

Failure of the first respondent to pay the Applicant’s costs of the failed extradition proceeding

35                  Similarly I conclude that the application, to the extent that it claims an order “that the present application for extradition be stayed as an abuse of process unless and until the First Respondent pays the costs of the Applicant in successfully defending the previous extradition applications made by the First Respondent, in relation to the same alleged conduct and the same charges as the present application, in the Magistrates Court proceedings”, discloses no reasonable cause of action.

36                  The applicant disavowed any suggestion that he has an entitlement to costs under the Act.  It follows that the Court’s jurisdiction in matters arising under the Act is not sought to be invoked by this claim (s 39B(1A)(c) of the Judiciary Act 1901 (Cth)).

37                  The applicant called in aid s 43 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) and O 62 rr 3 and 5 of the Federal Court Rules.  Section 43 of the Federal Court Act vests in the Court or a Judge “jurisdiction to award costs in all proceedings before the Court.”  The extradition proceeding before the magistrate was not a “proceeding before the Court” within the meaning of s 43 of the Federal Court Act.  This situation did not alter when an application was made to this Court, under s 21 of the Act, for review of the order made by the magistrate.  Section 43 of the Federal Court Act does not provide a legislative base for a claim for the costs of the failed extradition proceeding.  Order 62 rr 3 and 5 of the Federal Court Rules do not expand the jurisdiction of the Court to award costs, they merely regulate the exercise of the jurisdiction.

38                  In any event, even if it be accepted, contrary to my view, that an order in respect of the costs of the extradition proceeding before the magistrate could have been made in the review proceedings before Hill J, that would not justify a claim in respect of such costs being made in this proceeding.  O 62 r 3 of the Federal Court Rules, which provides that “[t]he Court may in any proceeding exercise its power and discretions as to costs at any stage of the proceeding or after the conclusion of the proceeding” does not authorise the Court in one proceeding to exercise its powers and discretions as to the costs of another proceeding.

39                  Nor am I able to accept that this Court has an inherent or implied power to alleviate injustice or potential prejudice caused to a successful respondent in an extradition proceeding.  This Court has only such original jurisdiction as is vested in it by laws made by the Parliament (s 19 of the Federal Court Act).  While the vesting of judicial power in the Court in respect of specific matters, as permitted by the Constitution, carries with it such implied power as is necessarily inherent in the nature of the judicial power itself (Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 619) the Court is nonetheless a Court of limited jurisdiction.  It does not have an “inherent jurisdiction” (Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 139).

40                  No law of the Parliament expressly vesting in this Court power to alleviate injustice or potential prejudice arising out of an extradition proceeding was able to be identified by the applicant.  In Papazoglou the Full Court of this Court doubted that this Court has original jurisdiction to terminate proceedings under s 19 of the Act on the ground that they constitute an abuse of power.  As Burchett J pointed out in his reasons for judgment in the second proceeding, this expression of “doubt” really amounts to a denial of that jurisdiction.  His Honour referred to subsequent decisions which have accepted that this is the effect of Papazoglou (see McDade v Attorney- General of the Commonwealth [1998] FCA 448; Federal Republic of Germany v Parker [1998] FCA 803.

41                  I am for the above reasons unable to accept the applicant’s contention that the Court has a general supervisory jurisdiction over magistrates hearing extradition proceedings, and over parties to extradition proceedings, such as to enable to the Court to overcome what the applicant characterises as the “legislative oversight” which has resulted in the Act making no provision in respect of the costs of extradition proceedings.

42                  More importantly, perhaps, the applicant’s submissions were based on an acknowledgment that the Act does not authorise the making of a costs order in respect of an extradition proceeding.  He has not sought to appeal the decision of the magistrate who held that she had no power to award such costs, or the decision of Hill J not to award such costs in the review proceedings before him.  There is every reason to think that he was right not to do so (Burns Philip & Co Ltd v Bhagat (1993) 1VR 203 at 210).  In such circumstances it is hard to see how the bringing of the second application for extradition without the applicant’s costs of the successful defence of the first application having been paid could, of itself, amount to an abuse of process.  As Burchett J pointed out in his reasons for judgment in the second proceeding, the authorities are clear that the failure of one application for extradition raises no bar to the making of another application.

CONCLUSION

43                  I conclude that the applicant is estopped from raising in this proceeding the issues of the validity of the second notice and the validity of the extradition proceeding so far as it is dependent on the validity of the second notice.  To seek to agitate those issues again in this proceeding amounts, in my view, to an abuse of process.  The authorities reflect different views as to whether, in such circumstances, the proceeding should to that extent be permanently stayed or dismissed.  In this Court there seems to me to be nothing inappropriate in such circumstances in an order of dismissal pursuant to O 20 r 2 of the Federal Court Rules.

44                  I further conclude that the application, to the extent that it raises issues other than the issues of the validity of the second notice and the validity of the extradition proceeding so far as it is dependent on the validity of the second notice, discloses no reasonable cause of action and should be dismissed (O 20 r 2).

45                  The application will therefore be dismissed generally.  It is not in the circumstances necessary for me to give consideration to the applicant’s notice of motion whereby he sought orders restraining the respondents from taking any steps towards, or in the conduct of, proceedings under s 19 of the Act in relation to the extradition of the applicant.

Associate:

Dated:              23 April 1999