FEDERAL COURT OF AUSTRALIA

Forsyth v United Kingdom [2003] FCA 1084

CHARLES ALISTAIR FORSYTH v UNITED KINGDOM and

MR BLACK

W169 of 2003

CARR J

19 AUGUST 2003

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed. 

2.         The applicant pay the first respondent's costs.

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

REASONS FOR JUDGMENT

introduction

1                     In this application, filed on 4 August 2003, the applicant seeks orders which include an order that the hearing of certain extradition proceedings listed for 20 August 2003 (i.e. tomorrow) before a Magistrate be vacated.  In those circumstances I propose to give my judgment forthwith. 

2                     The application is made purportedly under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and more appropriately in a jurisdictional sense, under s 39B of the Judiciary Act 1903 (Cth), for review of certain decisions made by Mr R K Black SM on 11 July 2003 in relation to the hearing and determination under s 19 of the Extradition Act 1988 (Cth) of the question whether the applicant is eligible for surrender to the first respondent in relation to certain alleged extradition offences.  I shall refer to those proceedings as “the s 19 proceedings”.  Mr Black is the second respondent to this application.  The applicant seeks to challenge the second respondent’s decisions not to vacate the hearing which is set down for tomorrow, not to re-list it for hearing at a later date on three consecutive days, and to decline to make an order that the first respondent adduce certain documents listed in a schedule dated 6 July 2003 prepared by the applicant. 

factual and procedural background 

3                     The evidence before the Court to date is as follows.  On 25 October 2002 a Magistrate at Perth issued a provisional arrest warrant under s 12(1) of the Extradition Act 1988 (Cth).  The applicant was arrested at Boyup Brook on 3 November 2002 and remanded in custody under s 15 of that Act.  On 4 November 2002, the applicant appeared in the Bunbury Magistrates Court.  He was legally represented, but no bail application was made on his behalf. 

4                     Since then the applicant has been remanded in custody at the Hakea Prison Remand Centre and elsewhere.  On 11 and 12 November 2002 at a hearing before the second respondent in the Perth Court of Petty Sessions in which the applicant was represented by Queen’s Counsel, he applied for bail.  His Worship declined that application indicating that “special circumstances” had not been made out.  The special circumstances referred to, included the applicant’s medical condition.  The applicant’s evidence is that he has been very ill since his arrest, suffering from acute labile hypertension caused by primary aldosteronism.  He says that on 10 February 2003 he underwent an operation at Fremantle Hospital and is now on the “semi-urgent waiting list” for a second operation at Royal Perth Hospital involving major surgery.  [In his affidavit filed on 6 August 2003 he stated that on 28 November 2002 his application for legal aid was refused.  He made no reference to the legal representation which he had previously secured and which, so it appears, he subsequently secured.]  Other matters referred to by the second respondent, when refusing bail on 12 November 2002 were that his Worship considered that there was a real risk of flight by the applicant if released on bail.  His Worship characterised the applicant’s actions as “flight from the UK” and noted that there appeared to have been deception relating to a non-appearance at a police interview in the United Kingdom and a subsequent explanation by his solicitors.  The second respondent further noted that the applicant had been in possession of a false French passport as well as a false French driver’s licence upon arrival in Australia, both containing photographs of him.  The applicant remained in custody. 

5                     On 11 December 2002 the applicant changed solicitors and appointed Mr Robert Mazza, a partner in the legal firm of Messrs Mazza & Mazza, to act for him.

6                     On 13 December 2002 the Minister for Justice and Customs signed a “Notice of Receipt of Extradition Request” under s 16(1) of the Extradition Act.  On 16 December 2002 a copy of that notice together with 14 volumes of supporting documents was filed with the Court of Petty Sessions and served upon Messrs Mazza & Mazza. 

7                     The notice of receipt of extradition request stated that an extradition request had been received from the United Kingdom in relation to two counts of fraudulent trading, contrary to s 458 of the Companies Act 1985 (UK), one count of breach of trademark contrary to s 92 of the Trade Marks Act 1994 (UK), one count of breach of copyright contrary to s 107 of the Copyright Design and Patents Act 1988 (UK), two counts of obtaining a pecuniary advantage, contrary to s 16(1) of the Theft Act 1968 (UK) and three counts of furnishing false information, contrary to s 17(1)(b) of the Theft Act. 

8                     On 8 January 2003, two additional volumes of supporting documents were filed at the Perth Court of Petty Sessions and served on the applicant’s lawyers, Messrs Mazza & Mazza.

9                     On 7 February 2003, through counsel, the applicant asserted in the Perth Court of Petty Sessions that his medical condition had deteriorated in custody.  A renewed bail application was set down for 28 February 2003 and a hearing date for the purposes of determining under s 19 of the Extradition Act whether the applicant was eligible for surrender, was set down for hearing on 3 and 4 April 2003. 

10                  In these extradition proceedings the Commonwealth Director of Public Prosecutions acted for the first respondent.  The Commonwealth Director of Public Prosecutions obtained medical reports from the Ministry of Justice Prison Health Service and from an independent renal specialist and filed and served those reports for the purposes of the renewed bail hearing on 28 February 2003.  On 27 February 2003 Mr Mazza withdrew the application for a renewed bail hearing. 

11                  On 14 March 2003, a further bail application on medical grounds was made on the applicant's behalf in the Perth Court of Petty Sessions.  That application was later discontinued. 

12                  On 24 March 2003, the Commonwealth Director of Public Prosecutions was advised by Mr Mark Gunning, a partner in Messrs Gunning & Young, that his firm had been appointed to act for the applicant.  Mr Gunning successfully applied to have the hearing dates of 3 and 4 April 2003 vacated.  A fresh hearing date of 25 June 2003 was fixed for the s 19 proceedings.  The Magistrate making that order (not the second respondent) ordered that written submissions be filed and served no later than 11 June 2003. 

13                  On 13 May 2003, Messrs Gunning & Young advised the Commonwealth Director of Public Prosecutions that they were no longer acting for the applicant.  Mr Kevin Burgoyne appeared for the applicant in the Perth Court of Petty Sessions that day.  Mr Burgoyne is a barrister and solicitor.  Mr Burgoyne applied unsuccessfully to vacate the hearing date of 25 June 2003. 

14                  On 3 June 2003 a further volume (volume 17) of supporting documents was filed at the Perth Court of Petty Sessions and served on Mr Burgoyne. 

15                  On 5 June 2003, Mr Burgoyne advised the Commonwealth Director of Public Prosecutions that he had briefed Mr Aughterson, a barrister in Darwin, in relation to the case. 

16                  On 11 June 2003, the Commonwealth Director of Public Prosecutions filed the first respondent’s submissions in relation to the s 19 hearing and served a copy of that document on Mr Burgoyne on 12 June 2003.  An annexure to that submission had been omitted in the copy provided to Mr Burgoyne on 12 June 2003, but was served on him on 16 June 2003. 

17                  On 20 June 2003, Mr Burgoyne advised the Commonwealth Director of Public Prosecutions that he no longer acted for the applicant and that the applicant would represent himself at the s 19 hearing on 25 June 2003.  Mr Burgoyne said that the 17 volumes of supporting documents had not been passed to his former client as they were still in Darwin with Mr Aughterson, and he was not in funds to cause them to be returned to Perth. 

18                  At the hearing this afternoon the applicant gave explanations for the history of his changed legal representation and told me that he was now legally unrepresented because he had run out of funds.  I have no means of assessing the correctness or otherwise of those explanations which were given in oral address from the bar table. 

19                  On 24 June 2003, the Commonwealth Director of Public Prosecutions supplied to the applicant another copy of the submissions and annexures and on the next day gave to him the 17 volumes of supporting documents. 

20                  On 25 June 2003 the applicant successfully applied to the second respondent for the hearing date to be vacated on the basis that he had not had reasonable time to prepare for the conduct of the proceedings: s 19(1)(d) of the Extradition Act.  A new hearing date was set down for 20 August 2003. 

21                  On reviewing the documents which the Commonwealth Director of Public Prosecutions had served on him, the applicant apparently formed the view that there was a large number of other documents which were specifically referred to in the documents served on him which should be put before the second respondent.  I shall refer to those further documents as “the Further Documents”.  As the applicant knew, s 19(5) of the Extradition Act relevantly provides that the applicant in this matter is not entitled to adduce, and the Magistrate is not entitled to receive, evidence in the s 19 proceedings to contradict an allegation that he has engaged in conduct constituting an extradition offence for which his surrender is sought. 

22                  The applicant prepared a schedule of the Further Documents, being the schedule dated 6 July 2003 to which I have referred.  On 11 July 2003 he appeared before the second respondent and sought a direction from him that the first respondent should put the Further Documents before the second respondent as part of its case in the s 19 proceedings.  He also sought an order that the proceedings not take place on 20 August 2003, but be adjourned and listed for three days of hearing. 

23                  The applicant told the second respondent that it was impossible for him to give due and fair consideration to the allegations made against him or to respond to certain of those allegations if the Further Documents were not adduced in evidence before the second respondent by the first respondent.  Without the Further Documents, the applicant claimed that he would be prejudiced in arguing that there was not, as he put it, a prima facie case. 

24                  In relation to the adjournment sought, the applicant submitted to the second respondent that in light of the 17 volumes of material, there would not be sufficient time to deal with the matter on one day and that three days should be set aside.  He contended that it would be highly prejudicial to him to have one day of hearing and then have the proceedings adjourned to another day thereby risking “losing the thread”.  At the time of making that submission the applicant (so the transcript reveals) acknowledged the difficulty, some weeks previously, of even getting one day for the hearing of the proceeding before November 2003.  Counsel for the first respondent gave his view that the s 19 hearing might well run for less than one day and that if it did not do so, and had to be adjourned, then this was something which happened all the time.  If possible, a start should be made rather than delay the matter beyond November 2003.  As to production of the Further Documents, counsel informed the second respondent that the first respondent did not intend to rely upon the material in the applicant’s list. 

25                  In ex-tempore reasons, the second respondent refused to make the direction in relation to the Further Documents.  He expressed the view that failure on the first respondent’s part to produce those documents would not work any unfairness.  His Worship said that he was not sure why the documents were said to be necessary.  As he understood it, the applicant (i.e. Mr Forsyth) was arguing that without the Further Documents there could not be sufficient evidence to find that he was eligible for extradition.  His Worship reasoned that, if that were so, any prejudice would flow to the first respondent, not to Mr Forsyth.  It would appear that his Worship may have misunderstood the applicant’s arguments which were, in essence, that in the absence of the Further Documents a false picture would be created in relation to the prima facie case which s 11(5)(b) and the relevant Regulations require the first respondent to establish. 

26                  As to the matter of the adjournment, the second respondent referred to the fact that the matter had been proceeding for some considerable period of time and two previous hearing dates had been adjourned.  He was unable to say whether the s 19 hearing would be completed in one day.  His Worship acknowledged that if it had to be completed on another, non-consecutive, day that would not be the most satisfactory method, but that at least a start should be made.  He declined to vacate the hearing date fixed for tomorrow. 

the grounds of the application

27                  On 4 August 2003 the applicant filed this application.  I summarise it as follows. 

28                  In relation to the second respondent’s refusal to adjourn tomorrow’s hearing and re-list it for three days, the applicant alleges that his Worship erred in law, breached the rules of natural justice and also breached Article 14(3)(b) of the International Convention on Civil and Political Rights which he quotes as stating “A person must have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.”  He says that in view of the 17 volumes of material (said to comprise 5,600 pages) and 26 pages of submissions he will not have had sufficient time to prepare for tomorrow’s hearing.  To adjourn the hearing part-heard would, so the applicant contends, be prejudicial to his arguments “… as the case involves complex alleged fraudulent corporate offences”.  The applicant says further that his medical condition affects his ability to prepare his case. 

29                  In relation to the second respondent’s refusal to make an order that the first respondent adduce the Further Documents, the applicant says that the second respondent breached the rules of natural justice in making that decision.  This, so the applicant submits, was because:

·          those documents are known by him to be in the possession of the first respondent; 

·          it would be highly prejudicial to his arguments before the second respondent if the evidence was not adduced;

·          if presented, that evidence would prove that in five of the alleged offences, there was no prima facie case, that he was innocent and that therefore the offences were not extraditable offences; and

·          those documents were either referred to or listed in the first respondent’s allegations and its statement of conduct, acts and omissions in the 17 volumes already presented. 

30                  The applicant seeks orders from this Court vacating tomorrow’s hearing and re-listing it for the first available three consecutive days “in September 2003”, an order that the first respondent adduce the evidence listed in the schedule dated 6 July 2003, and a further order that the first respondent also adduces depositions of certain five persons said to be former directors or managers of a company which is named in the documents contained within the 17 volumes of evidence. 

31                  The application came on for a directions hearing on 13 August 2003.  At that directions hearing I asked the applicant whether he had served the application on the Commonwealth Director of Public Prosecutions.  He told me that he had requested the authorities at Hakea Prison to forward a copy of the application and his supporting affidavit by post.  That was on or about 6 August 2003. 

32                  There was no appearance at the directions hearing on behalf of either of the respondents.  The applicant invited me to hear and determine his application on an ex parte basis.  

33                  I declined to do so, but adjourned the application until this afternoon for hearing and determination of whether the hearing should be expedited and take place this afternoon or whether it should be treated as an application for an interim injunction to restrain the second respondent from proceeding tomorrow to take evidence and make a determination under s 19 of the Extradition Act, and whether that application for interim relief should be heard and determined forthwith today.   

34                  Shortly before lunchtime today the Commonwealth Director of Public Prosecutions lodged and served an affidavit from Mr A E H Putt, a solicitor employed as a principal legal officer in the Perth office of the Commonwealth Director of Public Prosecutions.  Mr Putt appeared as counsel this afternoon.  Mr Putt’s affidavit set out much of the procedural background to which I have referred and also contained the information that on 8 August 2003 the applicant had again unsuccessfully applied in the Perth Court of Petty Sessions to have tomorrow’s hearing date vacated.  He also annexed a letter from Mr Burgoyne confirming that he (Mr Burgoyne) had represented the applicant in approximately May/June 2003 and had provided him with limited legal advice in relation to the Extradition Act and had briefed Mr Aughterson to provide some initial legal advice, following which some submissions had been filed in the Court of Petty Sessions in June 2003. 

35                  At the same time as lodging that affidavit, the Commonwealth Director of Public Prosecutions forwarded a set of submissions in which it was contended that the application should be dismissed under Order 20 of the Federal Court Rules as there was no reasonable cause of action and it was an abuse of process. 

36                  I asked the applicant what he wished the Court to hear and decide.  It emerged that he wanted the Court to hear all of his application immediately, or alternatively, (if the adjournment application could not be heard) for the portion of the application which related to the direction for production of documents to be heard.  The first respondent, so I understood, was content for the matter to proceed either on that basis or as a strike-out application. 

37                  I have decided to hear the principal application, not on the basis of a strike-out application but as an expedited hearing.  That is, I propose to decide whether, on the materials before the Court the orders which the applicant seeks should be made. 

38                  First I deal with the question of jurisdiction.  I do not think that this Court has jurisdiction in this matter under the Administrative Decisions (Judicial Review) Act 1977 because I think that it is reasonably clear that the decisions challenged were made under the Extradition Act.  Such decisions are not decisions to which the ADJR Act applies – see s 3 and item (r) of Schedule 1.  However, it was common ground that this matter fell within the Court’s jurisdiction under s 39B(3)(d) of the Judiciary Act 1903 (Cth).  I accept that the Court has such jurisdiction. 

39                  In my view, the application is premature and should be dismissed for reasons which follow. 

40                  It is not clear whether the second respondent, when he refused, on 11 July 2003, to adjourn the hearing did so because he considered that the applicant would by tomorrow have had reasonable time in which to prepare for the conduct of the s 19 proceedings.  It would seem that that was the reason why he adjourned the matter on 25 June 2003. 

41                  In any event, when the matter comes before the second respondent tomorrow, that will be something which he is obliged to consider as a jurisdictional fact – see s 19(1)(d) of the Extradition Act.  It will be open to the applicant to submit that he has not, in all the circumstances, had reasonable time in which to prepare for the conduct of the proceedings and that that jurisdictional condition has not been satisfied.  The applicant showed me this afternoon three volumes of submissions which he intends to put before the second respondent, but he said that they were not properly prepared and he will not be ready until another two or three weeks.  If the second respondent errs jurisdictionally in reaching a conclusion that the applicant has had reasonable time in which to prepare for the conduct of the proceedings, or if the second respondent otherwise errs for that matter, that conclusion and any such error may be the subject of an application by the applicant for an order of review under s 21 of the Extradition Act. 

42                  As to the possibility that the section 19 proceedings may extend beyond one day and have to stand further adjourned, I do not consider that any procedural unfairness or other reviewable error is demonstrated in the second respondent allowing such a possibility to occur. 

43                  In my view, the applicant’s reliance upon Article 14(3)(b) of the International Covenant on Civil and Political Rights is misplaced.  In short, that article has no bearing on this matter because it relates only to criminal charges.  This matter; that is, this application, does not relate to criminal charges and nor do the section 19 proceedings.  I do not propose to explore here the extent to which, if at all, that Article has been made part of Australian administrative law. 

44                  I do not think that the applicant has demonstrated reviewable error at this stage in relation to the refusal by the second respondent to make a direction that the first respondent produce the Further Documents. 

45                  As I understand the applicant’s point, it is that if the s 19 proceedings are decided on the basis of the documents which the first respondent intends to submit, a prima facie case may be found notwithstanding the fact (if it be a fact) that if all of the documents in the applicant’s list were also produced, it would be shown that there was no such prima facie case.  The applicant alleges that the first respondent is engaging in an abuse of the processes provided by the Extradition Act. 

46                  Once again, I consider that this part of the application is also premature. 

47                  If the second respondent finds that the applicant is eligible for surrender and if, in that process, it can be shown that by reason of refusing the directions sought by the applicant the second respondent fell into reviewable error, then again that may be made the subject of an application for review under s 21 of the Extradition Act. 

48                  There is another reason why I consider this application should be dismissed.  It is known as the principle against fragmentation.  In Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386, at 413, a Full Court of this Court stated that: 

‘… there are sound reasons of policy why the Court should be reluctant to intervene at an intermediate stage of the extradition process, in the absence of an exceptional situation, for instance the determination of a discrete point of law on uncontested facts.’

49                  See also Peniche v Hannan [1999] FCA 915 and the cases cited at par [29] in that case.

50                  In my view, the present case is not an exceptional situation justifying intervention by this Court at this stage of the extradition process.  It may be that at the end of the s 19 proceedings, the second respondent will decide that the applicant is not a person eligible for extradition, either on the material put before him, or because the applicant satisfies him that there are substantial grounds for believing that there is an extradition objection in relation to the relevant offence or offences.  The applicant has made it clear that he intends to raise the matter of extradition objections.  In those circumstances the making of the orders which the applicant seeks today would be unnecessary. 

51                  If the second respondent makes an order that the applicant is eligible for surrender, he may within 15 days after the day on which such order is made apply to this Court or to the Supreme Court of Western Australia, under s 21 of the Extradition Act, for a review. 

52                  If, once all the facts are known, that decision is made in error of law or in breach of the rules of procedural fairness, in excess of jurisdiction or through some other reviewable error, the applicant will be able to have it set aside. 

53                  In so far as the applicant seeks immediate relief under s 39B of the Judiciary Act, the authorities show that such prerogative relief is generally discretionary.  As Gummow and Callinan JJ (Hayne J agreeing) observed in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at par [33], one often compelling discretionary bar to prerogative relief is the availability of other relief.  In my view, that factor, and the other factors to which I have referred lead inexorably to the dismissal of this application.

Conclusion

54                  For the foregoing reasons the application will be dismissed with costs. 

Associate:

Dated:              13 October 2003