FEDERAL COURT OF AUSTRALIA

Vasiljkovic v Honourable Brendan O’Connor [2010] FCA 1246

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and O 20 r 5 of the Federal Court Rules the applicant’s application of 14 September 2010 be dismissed.

2.    The applicant pay the costs of the motion of the first, second, third and fifth respondents, as taxed or agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Notice of Motion

1    This is a motion on notice by the first, second, third and fifth respondents (‘moving respondents’) seeking orders that:

(1)    The proceeding (see [33] below) be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’) or O 20 r 5 of the Federal Court Rules (‘the Rules’) (para 1 of the notice).

(2)    in the alternative, the statement of claim filed 14 September 2010 be struck out pursuant to O 11 r 16 of the Rules (para 2 of the notice); and

(3)    in the further alternative, paras 18 to 21 of the statement of claim be struck out pursuant to O 11 r  16 of the Rules (para 3 of the notice).

2    On the hearing of the motion, the moving respondents did not press the alternative order in para 2 of the notice and the applicant indicated that he did not press reliance on paras 18 – 21 of the statement of claim. This early concession by the applicant was not reflected in his subsequent submissions to the Court on the hearing of the motion and, in consequence, the moving respondents maintained their entitlement to press for the further alternative order in para 3 of the notice. Be that as it may, the only substantive issue ventilated on the hearing of the motion was whether the moving respondents were entitled to an order or orders in terms of para 1 of the notice, that is, summary judgment pursuant to s 31A of the Federal Court Act or summary dismissal of the proceeding pursuant to O 20 r 5 of the Rules.

3    On the hearing of the motion, the applicant also sought the leave of the Court to file what were called a ‘further amended application’ dated 11 October 2010 and an ‘amended statement of claim’ dated 14 October 2010 which included, as a sixth respondent, the deputy chief magistrate who issued the warrant for the commitment of the applicant to prison pursuant to s 19(9) of the Extradition Act 1988 (Cth) (‘the Act’) (see [22] below) . The moving respondents opposed the grant of leave. I indicated to the parties that my preferred course was to rule on this application at the same time as giving judgment on the motion and while a different course was initially advocated by the applicant, there was no real challenge to my preferred course.

Legislative Basis for Orders Sought in Para 1 of the NOtice

4    Section 31A of the Federal Court Act relevantly provides:

‘(1)    …

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

(5)    This section does not apply to criminal proceedings.’

5    Order 20 r 5 of the Rules provides:

‘5    Stay or dismissal (proceedings commenced on or after 1 December 2005)

(1)    This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding:

(a)    the proceeding or claim is frivolous or vexatious; or

(b)        the proceeding or claim is an abuse of the process of the Court.

(2)    The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief.

(3)    The Court may receive evidence on the hearing of an application for an order under subrule (2).

Note For a proceeding commenced on or after 1 December 2005 in which the prosecuting party has no reasonable prospect of success, see subsection 31A(2) of the Act.’

6    In relation to s 31A of the Federal Court Act, in Spencer v Commonwealth (2010) 84 ALJR 612, French CJ and Gummow J said at [22]:

‘The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.’

7    At [24] their Honours observed that the exercise of powers to summarily terminate proceedings must always be attended with caution. Then at [25] their Honours said:

‘Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.’

(Emphasis added.)

8    In the plenary judgment of Hayne, Crennan, Kiefel and Bell JJ, their Honours at [51] and [52] of their reasons noted two aspects of the provisions of s 31A:

[51]    First, the central idea about which the provisions pivot is “no reasonable prospect” (emphasis added). The choice of the word “reasonable” is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of “no real prospect”; s 31A speaks of “no reasonable prospect”. The two phrases convey very different meanings.

[52]    Second, effect must be given to the negative admonition in subs (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. It will be necessary to examine further the notion of “no reasonable prospect”. But before undertaking that task, it is important to begin by recognising that the combined effect of subss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.’

9    Their Honours observed that, in this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. They then discussed the cases of Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and concluded at [56]:

‘Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.’

Factual Background

10    The background facts are not in dispute although the summary that appears below, taken from the moving respondent’s written outline of submissions, was said by the applicant to be incomplete. The extent to which it was incomplete, was not particularised.

11    The applicant was born in the former Yugoslavia in 1954 and migrated to Australia in 1969. The applicant subsequently became an Australian citizen, and has been an Australian citizen at all material times, including at the time of the alleged offences.

12    In response to a request from the Republic of Croatia, the applicant was arrested in Sydney on 19 January 2006 pursuant to a provisional arrest warrant issued under s 12(1) of the Extradition Act 1988 (Cth) (‘the Act’).

13    On 20 January 2006, the applicant was remanded in custody pursuant to s 15 of the Act.

14    On 17 February 2006, Australia received an extradition request from the Republic of Croatia in relation to the applicant. That extradition was sought for the applicant’s prosecution before a court in Croatia in respect of:

1.    two offences of war crimes against prisoners of war pursuant to Art 122 of the Criminal Code 1998 (Croatia); and

2.    one offence of a war crime against the civilian population pursuant to Art 120, paras 1 and 2, of the Croatian Criminal Code.

The request enclosed a copy of the Sibenik County Court decision and order.

15    On 18 March 2006, the Minister for Justice and Customs issued a notice of receipt of the extradition request pursuant to s 16 of the Act.

16    On 25 January 2006, the applicant commenced proceedings in the original jurisdiction of the High Court (C3 of 2006), seeking, inter alia, a writ in the nature of habeas corpus on the grounds of the invalidity of certain provisions of Pt II of the Act and the Extradition (Croatia) Regulations 2004 (Cth).

17    On 15 June 2006, the matter was determined, in the form of a case stated, when the Full Court of the High Court answered in the negative each of three questions posing the invalidity of these instruments: see Vasiljkovic v Commonwealth (2006) 227 CLR 614.

18    On 15 November 2006, so much of the matter that remained after the disposition of the special case was remitted to this Court. The order for remittal was filed on 29 January 2007 (NSD 118 of 2007) (‘the remittal proceeding’).

19    On 7 July 2006, the applicant commenced separate proceedings in this Court seeking review of the decision of the Magistrate to issue a warrant for the applicant’s arrest under s  12(1) of the Act, and the decision of the Minister for Justice and Customs to issue a notice of receipt of extradition request under s 16(1) of the Act (NSD 1312 of 2006) (‘the s 16 notice proceeding’).

20    On 13 October 2006, Cowdroy J adjourned the s 16 notice proceeding until a magistrate had determined the applicant’s eligibility for surrender pursuant to s 19 of the Act.

21    On 6 – 8, 11, 12, 21 and 22 December 2006, Deputy Chief Magistrate Cloran conducted a proceeding under s 19(1) of the Act to determine whether the applicant was eligible for surrender to the Republic of Croatia in relation to the offences for which his extradition was sought.

22    On 12 April 2007, Cloran DCM:

(1)    determined that the applicant was eligible for surrender to the Republic of Croatia in relation to the extradition offences; and

(2)    issued a warrant pursuant to s 19(9) of the Act, committing the applicant to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s 22(5) of the Act.

23    On 23 April 2007, the applicant commenced proceedings in this Court seeking review of the Magistrate’s orders (NSD 705 of 2007) (‘the review proceeding’). Ultimately, this proceeding was amended also to rely upon s 39B of the Judiciary Act 1903 (Cth).

24    On 19 November 2007, Cowdroy J dismissed the remittal proceeding and the s 16 notice proceeding.

25    The review proceeding was heard on 27 and 28 August 2008, 10 September 2008 and 1 October 2008.

26    On 3 February 2009, Cowdroy J dismissed the review proceeding.

27    On 16 February 2009, the applicant filed a notice of appeal from the orders made by Cowdroy J.

28    On 2 September 2009, a Full Court of this Court allowed the appeal.

29    On 4 September 2009, the applicant was released from custody pursuant to the orders of a magistrate (as directed by the Full Court under s 21(2)(b) of the Act).

30    On 12 February 2010, the High Court granted the Republic of Croatia special leave to appeal from the orders of the Full Court.

31    On 29 and 30 March 2010, the appeal was heard before the Full Court of the High Court. On 30 March 2010, the Court allowed the appeal and ordered that the orders made by Cloran DCM on 12 April 2007 be confirmed: Republic of Croatia v Sneddon (2010) 84 ALJR 334 at 351.

32    The applicant was arrested on or about 12 May 2010 and has since been imprisoned in Silverwater Prison.

The Proceeding

33    On 14 September 2010, the applicant filed an application and statement of claim seeking the following declarations:

(1)    that the applicant is not an extraditable person within the meaning of s 6 of the Act;

(2)    that the applicant has been, and still is, unlawfully imprisoned pursuant to the extradition request issued by the Republic of Croatia;

(3)    that the applicant is only required for questioning pursuant to the extradition request and that he is not accused of, or charged with, the commission of offences referred to in the extradition request.

34    The applicant also seeks an order in the nature of a writ of habeas corpus, and an order for compensation.

Scheme of the Act

35    The Act contemplates four stages in extradition proceedings:

(1)    Commencement (by the issue of a provisional arrest warrant under s 12 or by the giving of a notice under s 16);

(2)    remand by a magistrate under s 15;

(3)    conduct of proceeding under s 19 before a magistrate for determination of eligibility for surrender and, where appropriate, for the issue of a warrant of committal to prison to await surrender or release; and

(4)    determination by the Minister as to whether the person is to be surrendered under s 22, and, if so, the consequential issue of a warrant for surrender of the person to the extradition country under s 23.

(See Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389; Vasiljkovic v Commonwealth at [29], [55], [144], [222]; Brock v Minister for Home Affairs (2008) 170 FCR 434 at [30].)

36    Australia considers extradition requests from Croatia on the basis that the Extradition (Croatia) Regulations declare Croatia to be an ‘extradition country’ for the purposes of the Act. The validity of reg 4 of the Extradition (Croatia) Regulations was upheld in Vasiljkovic v Commonwealth.

37    Extradition from Australia to ‘extradition countries’ so declared by the Regulations is dealt with by the provisions of Pt II of the Act and is aptly summarised by the Court in Harris v Attorney-General (Cth) at 389 – 391.

Overview of the Moving Respondents’ Case

38    The moving respondents seek summary judgment and oppose a grant of leave to amend the application and statement of claim filed on 14 September 2010, on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim and the proceeding or claim is otherwise an abuse of the process of the Court, for the following reasons:

(1)    The cause of action claimed by the applicant (namely, that he is unlawfully detained) has merged into judgment in a prior proceeding, and, as such, is res judicata.

(2)    To the extent that the applicant claims, and seeks a declaration from the Court, that he is not an ‘extraditable person’, the pleading discloses no reasonable cause of action as this is not a claim that the Court can determine.

(3)    The applicant raises issues that were not, but which, if he wishes to rely upon them, should have been litigated in earlier proceedings, such that he is estopped from raising those matters in a subsequent proceeding (Anshun estoppel).

(4)    The bringing of this proceeding is an abuse of process:

(i)    insofar as it is inconsistent with the result of the adjudication, adverse to the applicant, in the earlier s 21 proceedings, that the applicant be committed to prison pursuant to s 19(9) of the Act, which was confirmed on appeal by the High Court;

(ii)    insofar as it is futile to seek a declaration that the applicant is unlawfully detained, without challenging the dismissal of the earlier s 21 proceedings and the consequent order of the Magistrate pursuant to s 19(9) of the Act that the applicant be committed to prison. To the extent that such a (collateral or direct) challenge is made, it cannot succeed as the right or cause of action claimed has passed into judgment. To the extent that the applicant challenges the issue of a notice of receipt of extradition request pursuant to s 16 of the Act, it is futile to bring such a challenge as the work to be done by s 16 is spent once the magistrate has made a determination as to eligibility for surrender under s 19 and that determination has been confirmed by a court under s 21 of the Act.

(iii)    on the basis of the applicant’s unwarrantable delay in seeking the claimed relief, and the consequent fragmentation of the extradition process.

39    The moving respondents in their oral submissions emphasised that they did not rely on issue estoppel which the majority (Mason CJ, Deane and Gaudron JJ) in Rogers v The Queen (1994) 181 CLR 251 held was not applicable to criminal proceedings: DPP v Humphrys [1977] AC 1 at 19 – 21, 39 – 40 and The Queen v Storey (1978) 140 CLR 364 at 371 – 374, 379 – 389, 400 – 401. On the other hand, the moving respondents submitted that the proceeding was not a criminal proceeding: Vasiljkovic v Commonwealth at [33], and that, in any event, Anshun estoppel upon which the moving respondents relied, was not issue estoppel; issue estoppel was not a true estoppel whereas Anshun estoppel had a ‘conjunction’ with true estoppel: Rogers at 274 – 275 per Deane and Gaudron JJ.

Overview of the Applicant’s Case

40    The principal relief sought by the applicant is an order in the nature of a writ of habeas corpus. The applicant contended that an order in this nature should be issued on grounds including:

(1)    The invalidity of the provisional arrest warrant issued by the Magistrate under s 12(1) of the Act.

(2)    The invalidity of the Magistrate’s decision to remand the applicant in custody under s 15 of the Act.

(3)    No warrant was issued by the Republic of Croatia for the arrest of the applicant for an offence or offences within the meaning of s 19(3)(a) of the Act.

(4)    The extradition request required that the applicant was wanted for questioning or interrogation by the Republic of Croatia.

(5)    When the Republic of Croatia issued the extradition request and accompanying documents it also issued an English translation of these documents prepared by Croatian Government translators. The Courts in Australia, and in particular the Magistrates Court, the Federal Court and the High Court relied on the English translations which they assumed to be accurate. The English translations were in fact not accurate in that references to the applicant being charged with criminal offences should have read that he had been accused of criminal offences. Statements that an arrest warrant is issued or is to be issued should have been translated to read a wanted circular is to be issued to put the applicant on the wanted circular list. The reference to the issue of a warrant under Art 486 of the Criminal Procedure Act (Croatia) was incorrect.

(6)    The alleged offences said to be committed by the applicant did not take place in territory under the jurisdiction of the Republic of Croatia.

(7)    There is no allegation in the extradition request that any of the alleged victims were Croatian citizens or residents.

(8)    At the time the offences referred to in the extradition request were allegedly committed by the applicant, Arts 120 and 122 of the Croatian Criminal Code of the Republic of Croatia were not laws of, or in force in, that country.

41    Other orders and declarations sought in the amended application are ancillary to [40(1) - (8)] above.

42    The applicant submitted that the strike out application is misconceived because the Court has no power to strike out an application which seeks orders in the nature of a writ of habeas corpus. Such an application is not a pleading or claim but is similar to a prerogative writ where the person holding a detained applicant must state by what authority such applicant is held. In this case the onus is on the moving respondents to establish the authority for imprisoning the applicant.

43    According to the applicant, the only habeas corpus proceedings brought on his behalf in this matter was the issue of a writ in the nature of habeas corpus in the original jurisdiction of the High Court on the grounds of the invalidity of certain provisions of Pt II of the Act and the Extradition (Croatian) Regulations (see [16] above).

44    According to the applicant there was no habeas corpus application as such before the Magistrate in respect of the review of his decision to issue a warrant for the applicant’s arrest in the Federal Court (see [23] – [31] above).

45    The applicant submitted that a writ of habeas corpus is available as a remedy in all cases of wrongful deprivation of personal liberty, whether criminal or civil. There are distinctions between applications for the writ in a criminal cause or matter and applications made in a non-criminal cause or matter. A criminal cause or matter is one where there is or may be a penal element involved, for example, where the result of the proceedings may be the trial of the applicant and his possible punishment for an alleged offence whether by an internal court or by a foreign court claiming jurisdiction (Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147 at 156). The words ‘criminal cause or matter’ should be construed widely (Ex parte Woodhall (1888) 20 QBD 832).

46    According to the applicant, the writ of habeas corpus in this case concerns a criminal cause or matter.

47    The applicant conceded that usually a writ of habeas corpus would not be granted where the effect of it would be to review the judgment of one of the superior courts which might have been reviewed on appeal or to question the decision of an inferior court or tribunal on a matter within its jurisdiction (Re Corke [1954] 1 WLR 899).

48    However, the applicant submitted that in cases relating to extradition and return of fugitive offenders, it has been held that there is power in the superior court to review the case as it appeared before the Magistrate, to look at the evidence before the Magistrate, but to consider whether any Magistrate, properly applying his mind to the question, could reasonably come to the conclusion that a strong and probable presumption of guilt had been made out which would justify the Magistrate in making a committal order (R v Governor of Brixton Prison Ex parte Murat Mehmet [1962] 2 QB 1).

49    According to the applicant, although issue estoppel could apply in habeas corpus proceedings, such estoppel is confined to civil proceedings as opposed to criminal proceedings as in this case (R v Governor of Brixton Prison Ex parte Osman [1991] 1 WLR 281 per Mann LJ at 291).

50    The applicant disputed the applicability of res judicata and/or Anshun estoppel as alleged by the moving respondents (see [38] above). The applicant further disputed that the bringing of the instant proceedings is an abuse of process or that no reasonable cause of action is disclosed.

51    The review provided for by s 21 of the Act can only be in respect of the Magistrate’s determination under s 19. The review does not call into question the determination of the Magistrate under s 12 to issue the warrant or his decision under s 15 to remand the applicant in custody or the Attorney-General’s decision under s 16. It follows that any of the previous applications made by the applicant cannot have touched upon these issues and therefore cannot be subject to estoppel or res judicata.

52    To the extent there is any deficiency in the orders sought in the application the applicant sought leave to amend.

53    Finally, the applicant submitted that the motion should not proceed until there is an agreed English translation of the extradition request and accompanying documents. According to the applicant, the Republic of Croatia supplied an incorrect translation, which among other things, referred to the issue of an arrest warrant and the charging of the applicant with criminal offences. It supplied a translation which the courts and parties accepted in good faith. As a result of the incorrect translation, orders were made by the various courts which should not have been made. It is not to the point for the moving respondents to submit, as they have, that the extradition request and accompanying documents including an ‘arrest warrant’ were tendered without objection or that the accuracy of the English translation was not previously raised. The courts and the parties were entitled to rely on the integrity of the Republic of Croatia and its translations which now appears to have been misplaced. The applicant submitted that all orders and decisions made based on misleading translations are void and should be set aside.

Analysis of Moving Respondents’ Submissions

Res Judicata

54    In both the application and ‘further amended application’ (paras (ii) and (iv)), the applicant seeks a declaration that he has been, and still is, unlawfully imprisoned, and an order in the nature of a write of habeas corpus. The moving respondents submitted that a successful challenge to the legality of the applicant’s current detention (the question of the legality of the applicant’s former detention is dealt with below) is precluded by the principle of res judicata. The rule comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 per Gibbs CJ, Mason and Aickin JJ.

55    In the joint judgment in Anshun, their Honours at 597 said:

‘The distinction between res judicata (in England called “cause of action estoppel”) and issue estoppel was expressed by Dixon J. in Blair v. Curran [(1939) 62 CLR 464 at 532] in these terms: “in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”

The distinction was restated by Fullagar J. in his dissenting judgment in Jackson v. Goldsmith [(1950) 81 CLR 446 at 466]. His Honour expressed the rule as to res judicata by saying: “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.’” His Honour went on to discuss issue estoppel, citing the comment of Dixon J. in Blair v. Curran [at 531]: “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.”

The difference between res judicata (cause of action estoppel) and issue estoppel has been expressed in similar terms in the House of Lords—see Carl Zeiss Stiftung v. Rayner & Keeler Ltd. [[1967] 1 AC 853 at 913, 964 et seq].’

56    In the present case, the prior proceeding comprises the s 21 (review and appeal) proceedings. On 12 April 2007, Deputy Chief Magistrate Cloran determined that the applicant is eligible for surrender to the Republic of Croatia in relation to the extradition offences. On the same day, Cloran DCM issued a warrant pursuant to s 19(9) of the Act committing the applicant to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s 22(5) of the Act (‘the s 19 warrant’).

57    On 23 April 2007, the applicant commenced a proceeding in this Court seeking review under s 21 of the Act of the Magistrate’s determination and the order made under s 19(9) that the applicant be committed to prison. That proceeding was dismissed by Cowdroy J on 3 February 2009. The applicant filed a notice of appeal in relation to Cowdroy J’s judgment on 16 February 2009. After a Full Court of this Court allowed the applicant’s appeal, and quashed the order of the magistrate (namely, the s 19 warrant), the High Court subsequently allowed the Republic of Croatia’s appeal and, notably, ordered ‘that the orders made by Deputy Chief Magistrate Cloran on 12 April 2007 are confirmed’: Republic of Croatia v Snedden (2010) 266 ALR 621.

58    The identity of the causes of action in question is determined by matters of substance rather than by the form of the particular proceeding or the way in which it is pleaded: Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418 (Gummow J) (confirmed (1993) 43 FCR 510); Somanader v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 670 at [53] (Merkel J). In the present case, the substance of both the prior and present proceeding is the same: namely, a challenge to the legality of the instrument that authorises the imprisonment of the applicant.

59    The function of this Court under s 21 of the Act is to review an order made under subss 19(9) or (10) (whichever is applicable). As the plurality in Pasini v United Mexican States (2002) 209 CLR 246 held (at [16] – [17]):

‘When a court is required to review an administrative decision, it is required, at the very least, to determine whether or not that decision is erroneous in some respect that renders the rights or liabilities of the person to whom it relates other than as set out in that decision. In doing so, the court declares and enforces the law and, thus, exercises judicial power.

In the case of review under s 21 of the Act, the Federal Court is required, if the magistrate’s decision was erroneous, to determine what order should have been made by the magistrate. So much follows from s 21(2)(b) and (6) of the Act.’

60    The resolution of the prior s 21 proceeding, culminating in the confirmation of the Magistrate’s orders, has resolved the question of whether the Magistrate’s decision was erroneous. More particularly, it has resolved the question of whether the applicant is imprisoned pursuant to lawful authority (by way of the s 19 warrant). The applicant is precluded from revisiting this question by the operation of the rule of res judicata. Importantly, if res judicata applies, there is no discretion to allow the proceeding to continue. By operation of law, the applicant is not able to maintain the proceeding as the plea, if made out, is a complete bar to the claim as the cause of action is extinguished by the first judgment: Somanader at [45] (Merkel J); Anshun at 612 – 613 (Brennan J); Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 512 (Dawson J).

61    Furthermore, insofar as the applicant seeks an order in the nature of habeas corpus, it is impermissible to invoke the writ (a prerogative remedy) as a means of attempting to review a conviction or sentence. A warrant, on its face valid and sustained by the orders of the court, sufficiently answers the writ of habeas corpus: see Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262 at 285 (Kirby P); Ex parte Williams (1934) 51 CLR 545 at 549 – 551 (Dixon J). Similarly, the s 19 warrant answers the writ sought in the present proceeding. As Deane J stated in Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 123 ALR 478 at 480, the writ of habeas corpus is ‘not ... available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity’. The only way in which the authority of the warrant could be overcome, as the lawful basis for the applicant’s imprisonment, would be by appeal (this avenue has been exhausted).

Not an ‘extraditable person’

62    The applicant seeks a declaration that he is not an extraditable person within the meaning of s 6 of the Act. He seeks a further declaration that he has been wrongfully arrested (‘further amended application’, para (ii)), and unlawfully or falsely imprisoned.

63    The term ‘extraditable person’ is defined in s 6 of the Act as follows:

Where:

(a)    either:

(i)    a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or

(ii)    a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:

(A)    there is an intention to impose a sentence on the person as a consequence of the conviction;

or

(B)    the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;

(b)    the offence or any of the offences is an extradition offence in relation to the country; and

(c)    the person is believed to be outside the country;

the person is, for the purposes of this Act, an extraditable person in relation to the country.’

64    In respect of Pt II of the Act, the term ‘extraditable person’ otherwise appears in relation to the commencement of the extradition process; that is, in relation to the issue of a warrant for arrest by a magistrate under s 12 and the issue of a notice of receipt of the extradition request by the Attorney-General under s 16. In order to issue a provisional arrest warrant under s 12(1), the magistrate must be ‘satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country’ (s 12(1)(b)) (emphasis added). Similarly, the Attorney-General shall not give a notice pursuant to s 16(1) ‘unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the extradition country’ (s 16(2)((a)(i)) (emphasis added). These provisions (s 12(1)(b) and s 16(2)(a)(i)) are in substance identical, but for the fact that the former provision refers to the magistrate being satisfied that the person is an ‘extraditable person’, and the latter provision refers to the opinion of the Attorney-General.

65    The applicant states (in both the statement of claim and the ‘amended statement of claim’, para 11) that the applicant was ‘duly arrested’ on or about 19 January 2006. The applicant was arrested on that day pursuant to a provisional arrest warrant issued by a magistrate under s 12(1) of the Act. The applicant has not challenged the issue of this warrant (nor the decision to remand the applicant in custody under s 15 of the Act).

66    The applicant’s claim for relief by way of a declaration that he is not an extraditable person discloses no reasonable cause of action. As indicated above, the concept of an ‘extraditable person’ is referable (in Part II of the Act) to the satisfaction of the magistrate under s 12(1) of the Act, and the opinion of the Attorney-General under s 16(1) of the Act. This statutory concept is not a jurisdictional fact for a court to determine: Peniche v Vanstone (2000) 101 FCR 112 at [62]. The matter is equivalent to the position in migration cases where the question whether a visa applicant meets the criteria is judged according to the Minister’s (or a tribunal’s) satisfaction and cannot be determined as a fact by a court. On that basis, this Court cannot grant the declaration sought.

67    To the extent that the applicant’s claim that he is, or has been, unlawfully detained is predicated on a finding by the Court that the applicant is not an extraditable person, that claim cannot succeed.

68    This implicates those claims that seek to challenge elements of the definition of an ‘extraditable person’, namely: (a) that a warrant is in force for the arrest of the applicant; (b) in relation to an offence against the law of a country; and (c) that the applicant is accused of having committed. The following claims go to the question of whether the applicant is an ‘extraditable person’:

(1)    There is no warrant issued by the Republic of Croatia for the arrest of the applicant for an offence within the meaning of s 19(3)(a) of the Act: ‘further amended application’, para (iii)K; ‘amended statement of claim’, paras 5A, 18A.

(2)    The offences in question were not at the time of their alleged commission ‘offences of the Republic of Croatia’ or ‘offences in the Republic of Croatia’: statement of claim, paras 18, 20; ‘further amended application’, paras (iii)A, (iii)G - (iii)J; ‘amended statement of claim, paras 6, 18, 20.

(3)    The applicant is only required for questioning (and is not accused or charged with committing the extradition offences): application, para (iii); statement of claim, paras 4, 21; ‘further amended application, para (iii); ‘amended statement of claim, paras 4, 21.

Anshun estoppel

69    According to the moving respondents, the applicant now raises issues that were not, but which should have been litigated in earlier (s 21) proceedings, and as such is estopped from raising those matters in a subsequent proceeding. In the joint judgment in Anshun, their Honours, at 598, referred to the principle expressed by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at 115 as follows:

‘[W]here 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 a 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.’

70    The applicant claims that there is no warrant issued by the Republic of Croatia for the arrest of the applicant for an offence within the meaning of s 19(3)(a) of the Act (‘further amended application’, para (iii)K; ‘amended statement of claim, paras 5A, 18A). This is a direct challenge to the determination of the Magistrate pursuant to s 19 of the Act that the Republic of Croatia had provided the required supporting documents, which included a duly authenticated warrant for the applicant’s arrest.

71     Under s 19(2)(a) of the Act, a person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if the supporting documents in relation to the offence have been produced to the Magistrate. Paragraph 19(3)(a) provides that ‘supporting documents’ in relation to an extradition offence means ‘if the offence is an offence of which the person is accused – a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant’.

72    In the s 19 proceeding before Cloran DCM, the Republic of Croatia tendered the extradition request and ‘arrest warrant dated 10 January 2006’ to meet the conditions of ss 19(2)(a) and (3)(a) of the Act. This tender was made without objection. To the extent that the applicant seeks to contest whether the supporting documents required by the Act were produced by the extradition country, all grounds relating to this claim had to be advanced before the magistrate, and, if relevant, challenged further in s 21 proceedings. For instance, the applicant claims that the English translation of the extradition request, and accompanying documents, which was ‘relied upon by various Judicial Officers’, was ‘defective and was not translated by a certified and qualified NAATI translator’: ‘amended statement of claim’, para 5B. The question of the accuracy of the ‘English translation’ of the extradition request was not raised in the proceeding before the Magistrate (as indicated above, no objection was made to the tender of the extradition request).

73    The matters now raised by the applicant are: (1) so closely connected with the matters raised in the s 19 proceeding; (2) could have been, but were not, raised in the s 21 review proceeding; and (3) if determined in the applicant’s favour would conflict with the Magistrate’s determination, as confirmed (under s 21 of the Act) on appeal by the High Court. As such, the applicant is estopped from raising these matters in this proceeding. As the court in Anshun stated (at 603), ‘a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment’ (per Gibbs CJ, Mason and Aickin JJ). There are no ‘special circumstances’ which preclude the operation of this rule in this case.

Abuse of process

74    Independently of any conclusion in relation to estoppel, the moving respondents submitted that it is an abuse of process for the applicant, having pursued the s 21 proceeding to the ultimate conclusion, subsequently to commence a separate proceeding seeking to put in issue a requirement (or one of the stages) of the extradition process. They submitted that, in this respect, the applicant seeks to ‘litigate anew a case which has already been disposed of by earlier proceedings’: Walton v Gardiner (1993) 177 CLR 378 at 393.

75    The moving respondents submitted that this proceeding constitutes an abuse of process in three respects:

(1)    An order in the nature of a writ of habeas corpus (and a declaration that the applicant is unlawfully imprisoned) is inconsistent with the result of earlier proceedings; and

(2)    a determination that the applicant is not extraditable (even if it were open to the Court to make such a determination) would be futile: that is, it would not be productive of the remedy sought by the applicant (namely, release from custody); and

(3)    the prosecution of this proceeding at this stage bespeaks unwarrantable delay and results in the fragmentation of the extradition process.

76    The bringing of the current proceeding is inconsistent with the result of the adjudication, adverse to the applicant, in the earlier s 21 proceeding. The applicant’s claim that he is unlawfully imprisoned necessarily goes to the validity of the Magistrate’s determination that the applicant is eligible for surrender to the Republic of Croatia in relation to the extradition offences, and the consequential order committing the applicant to prison for the stated purpose in s 19(9)(a) of the Act. The question of the validity of these orders is the very matter decided adversely to the applicant in the earlier (s 21) proceeding (and the very matter confirmed by the High Court): see Brock v Minister for Home Affairs at [65] (per Lindgren and Tracey JJ).

77    To the extent that the applicant wishes to argue a case different from that which he advanced in the earlier (s 21) proceeding, this does not advance the applicant’s claim to relief. The applicant wishes again to contend that the Magistrate’s determination that he was eligible for surrender and the issue of the warrant of imprisonment were invalid, then on the basis of an extradition objection (ss 7 and 19(2)(d)), and now on the basis that he is not an extraditable person (ss 6 and 16). This is argued on the basis that: (1) the offences referred to in the extradition request were not, at the time of their alleged commission, offences against the Republic of Croatia; (2) the applicant is only wanted for questioning; and (3) (by way of the proposed amendments) there was no warrant in force at the relevant time for the arrest of the applicant in relation to an offence against the law of the Republic of Croatia (‘further amended application’, para (iii)K; ‘amended statement of claim, paras 5A, 18A).

78    If the applicant were to succeed on these claims, and in the ultimate conclusion that he is not detained pursuant to lawful authority, then such a determination would conflict with an earlier adjudication in the s 21 proceeding that the applicant be committed to prison pursuant to the s 19 warrant. Prosecution of this proceeding ‘is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue’: Rogers at 257 (Mason CJ).

79    Furthermore, even if this Court could determine that the applicant is not an extraditable person (contrary to the conclusion above), such a declaration would be futile: that is, it would not be sufficient, in the absence of a challenge to the s 19 warrant, to conclude that the applicant is unlawfully imprisoned. For the reasons outlined above, the matter of the validity of this warrant is res judicata.

80    In addition, to the extent that the applicant challenges the issue of a notice of receipt of extradition request pursuant to s 16 of the Act, it is futile to bring such a challenge at this stage as ‘the work to be done by the issue of a Notice of Receipt of Extradition request under s 16 is spent once the s 19 stage in the process is reached’: Brock v Minister for Home Affairs at [77] (per Lindgren and Tracey JJ).

81    The magistrate, exercising the functions specified by s 19, proceeds on the footing that the person’s remand and the giving of the Attorney-General’s notice under s 16 were valid: that is, the magistrate proceeds on the basis that the person whose surrender is sought is an ‘extraditable person’: Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 539 (Brennan CJ, Dawson & McHugh JJ); 541 (Toohey J).

82    The moving respondents submitted that this proceeding constitutes an abuse of process on the basis of the circumstances of the applicant’s delay in seeking the claimed relief. The applicant brings this proceeding several years after the applicant commenced proceedings in this Court (on 7 July 2006) seeking review of the decision of the Minister for Justice and Customs to issue a notice of receipt of an extradition request under s 16(1) of the Act, on the ground, inter alia, that the Minister erred in law in determining that the applicant was an ‘extraditable person’ (NSD 1312/2006). On 19 November 2007, Justice Cowdroy dismissed that proceeding, subsequent to the applicant’s failure to comply with orders regarding clarification of pleadings, and the identification of evidence and legal contentions.

83    By bringing this proceeding, the applicant seeks to re-agitate the same matter that was raised years earlier in a previous proceeding, which proceeding was dismissed, in circumstances where the applicant did not take measures at the time of the earlier proceeding to maintain, or subsequently re-enliven, that proceeding. In these circumstances, the bringing of this proceeding constitutes an abuse of process.

84    In addition, there is a strong presumption against interference with the statutory extradition process: see Harris at 413; Peniche v Hannan [1991] FCA 915 at [26] – [30] (Kenny J); Forsyth v United Kingdom [2003] FCA 1084 at [46]ff (Carr J); Brock v Minister for Justice and Customs (2007) 243 ALR 315 at [72] (Flick J). The bringing of this proceeding at this stage results in the fragmentation of this process – that is, intervention at an immediate stage of the process - in the absence of exceptional circumstances.

Discretionary relief

85    The moving respondents submitted that, as a matter of discretion, prerogative relief should not be granted in this case. The availability of another proper and adequate forum for relief is a factor that has to be given ‘considerable weight’ in the exercise of the Court’s discretion: McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 at [59] (Branson J): see also Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088 at [33] (Gummow and Callinan JJ) (Hayne J agreeing); Wyeth Australia Pty Ltd v Minister for Health & Aged Care (2000) 61 ALD 372 at [47] (Finn J). In the present case, that forum is provided by way of the next stage of the extradition process: that is, the Attorney-General’s determination as to whether the person is to be surrendered under s 22 of the Act.

86    The applicant may agitate the issues raised in this proceeding before the Minister in the exercise of his discretion, and upon an unfavourable outcome, he is entitled also to seek a review of that decision. However, the declarations sought by the applicant may not be used as a ‘staging post’ in the extradition process, to the end of an assertion in the future of certain rights or entitlements: see Edwards v Santos Ltd (2009) 263 ALR 473 at [56] – [57] (Logan J).

87    The applicant seeks an order restraining the first respondent from ‘making a determination’ under s 22 of the Act. Aside from having the ironic effect of prolonging the applicant’s detention and stymieing the extradition process, the moving respondents submitted that no prohibition can restrain the Minister entering upon an inquiry into any of the matters or issues that he is to consider in the exercise of his discretion under s 22: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 117 – 118 (Dixon CJ, Williams, Webb and Fullagar JJ). On this basis, such an amendment should not be allowed.

Analysis of Moving Respondents’ answers to Applicant’s Case

88    In response to the matters on which the applicant relies for his contention that an order in the nature of a write of habeas corpus should be issued (see [40(1) - (8)] above), it is said that those matters do not assist the applicant either in a challenge to the s 19 warrant (which is the basis of the applicant’s current imprisonment) or in demonstrating, as a matter of fact, that the applicant is not an ‘extraditable person’ (as a pre-condition to the applicant’s lawful imprisonment).

Challenge to the s 19 warrant

89    The applicant conceded that he can only succeed in his claim for primary relief if the s 19 warrant is set aside. The relief sought by the applicant is inconsistent with the extant orders of the High Court. On that basis, the applicant’s claim must fail.

90    The applicant’s collateral challenge to the s 19 warrant seeks to put in issue the validity of the decisions under ss 12, 15 and 16 of the Act. Under s 19(1) of the Act, the magistrate shall conduct proceedings to determine whether the person is eligible for surrender to the extradition country in relation to the extradition offences where, inter alia: (1) the person is on remand under s 15; and (2) the Attorney-General has given a notice under s 16(1) in relation to the person. The work to be done by the issue of a notice of receipt of extradition request under s 16 is spent once the magistrate has made a determination as to eligibility for surrender under s 19 and that determination has been confirmed by a court under s 21 of the Act: Brock at [77] (Lindgren and Tracey JJ). See also Kainhofer at 538 – 539 (Brennan CJ, Dawson and McHugh JJ).

91    Subsections 15 (1) and (2) provide:

‘(1)    A person who is arrested under a provisional arrest warrant shall be brought as soon as practicable before a magistrate in the State or Territory in which the person is arrested.

(2)    The person shall be remanded by a magistrate in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under section 18 or 19, or both, to be conducted.’

92    Subsection 15(1) is predicated on the issue of a provisional arrest warrant under s 12(1) of the Act. Once the magistrate orders the person to be committed to prison pursuant to s 19(9) of the Act, the work to be done by s 15 (and s 12) is spent.

93    The moving respondents say that even if, contrary to their primary submissions, it were open to the applicant to challenge the s 19 warrant by reference to the invalidity of the provisional arrest warrant issued under s 12(1), the remand decision under s 15, and the notice issued under s 16, the matters set out in [40(1) - (8)] above could have been raised in the context of an application for review of these decisions under s 39B of the Judiciary Act. So much was conceded by the applicant.

94    An application under s 39B was made concurrently with the application under s 21 of the Act for review of the magistrate’s decision, the outcome of which was appealed ultimately to the High Court. In the absence of special circumstances (which the applicant has not identified), the applicant is estopped from now raising those matters that were not, but should have been, raised in the context of those proceedings. An application under s 39B of the Judiciary Act was also made in a separate proceeding (specifically challenging the ss 12 and 16 decisions), which was dismissed by this Court and not pursued further by the applicant at the time. As such, a further challenge at this stage of the extradition proceedings is an abuse of this Court’s process.

Extraditable person

95    To the extent that the matters raised by the applicant (see [40(1) - (8)] above) go to the question of whether the applicant was an ‘extraditable person’, that question is concerned with the satisfaction of the magistrate (in the case of the issue of the provisional arrest warrant under s 12(1) of the Act) and the opinion of the Attorney-General (in the case of the issue of the notice of receipt of extradition request under s 16(1) of the Act), and is not a question of jurisdictional fact for this Court to determine: Peniche v Vanstone at [61]. The applicant has not claimed that it was not reasonably open to the magistrate or the Attorney-General (or the Minister, in this case) to conclude that the applicant was an ‘extraditable person’ for the purposes of their respective statutory functions on the material before them at the time. Even if the applicant did so argue, the claim that the decision-makers relied on ‘the English translations which they assumed to be accurate’, but which were not so, does not in itself demonstrate the invalidity of the resulting decisions. See, in the context of administrative decisions based on incorrect material, Oates v Attorney-General (Cth) (2001) 181 ALR 559 at [133] (Lindgren J); McHugh Holdings Pty Ltd v Director General Communities NSW [2009] NSWSC 1359 at [41] (Hoeben J).

Habeas corpus – strike out

96    There is no foundation for the applicant’s claim that the Court has no power to strike out an application that seeks orders in the nature of a writ of habeas corpus. The applicant provides no authority to support the claimed restriction of the Court’s power of summary dismissal under s 31A of the Federal Court Act or O 20 r 5 of the Rules.

Habeas corpus - res judicata

97    The applicant claims that the ‘only habeas corpus proceedings brought on behalf of the applicant in this matter’ was that in relation to the case stated before the High Court (numbered C3 of 2006), and that there was no such application before the magistrate in respect of the review of his decision to issue a warrant for the applicant’s arrest in this Court.

98    In response it is said that an order in the nature of a writ of habeas corpus was sought in the proceedings challenging the issue of the provisional arrest warrant under s 12 of the Act, and the decision to issue a notice under s 16 in proceeding NSD 1312 of 2007; and also in the remittal proceeding NSD 118 of 2007. In any event, if the point is made by the applicant so as to challenge the moving respondents’ submissions on res judicata, it is evident that the substance of the cause of action in this proceeding is the same as that in the ss 19 and 21 proceedings: namely, a challenge to the legality of the instrument that authorises the imprisonment of the applicant.

Habeas corpus - Anshun estoppel

99    The applicant advanced the following argument:

(1)    The doctrine of issue estoppel (including Anshun estoppel) does not operate in the context of criminal proceedings.

(2)    When habeas corpus is pursued in the context of a person detained pursuant to extradition proceedings, the cause is a ‘criminal cause or matter’.

(3)    Accordingly, the doctrine of issue estoppel (and Anshun estoppel) does not apply in the present context.

100    As to the first proposition, it is said that the position in Australia was stated by Mason CJ in Rogers v The Queen (1994) 181 CLR 251 at 255:

‘The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law.’

101    It is apparent that issue estoppel does not extend to a cause of action only when the identified special criminal law principles apply (in its place). It should be noted that, even in that case, where a majority of the court held that issue estoppel was not available in a criminal trial, the majority gave analogous relief under the principle of abuse of process, which served equally well to avoid ‘the scandal of conflicting decisions’. Their Honours did not allow the party to advance a position inconsistent with the previous determination of a court.

102    As to the applicant’s second proposition, it is said that the cases relied upon considered the construction of a particular statutory expression that governed the jurisdiction of the English Court of Appeal to hear appeals, which was excluded in relation to a ‘criminal cause or matter’. In that (presently immaterial) context, a court held that an appeal from a writ of habeas corpus in an extradition proceeding (being one quite different in any event from the present Australian extradition process) fell within the exclusion, with the result that there was no appeal in such a case.

103    It is said that the applicant is wrong, however, to consider that a classification of such a proceeding for the particular purpose of determining the ambit of the court’s jurisdiction has any relevance to determining whether or not such a proceeding is criminal for the purpose of deciding whether issue estoppel is available. This can be seen starkly from a case relied upon by the applicant: R v Governor of Brixton Prison Ex parte Osman [1991] 1 WLR 281. In that case, the court accepted for one purpose that the bringing of a writ of habeas corpus in a particular context was ‘criminal in nature’. However, their Honours went on to find that an issue estoppel did arise from rulings in earlier habeas corpus applications (at 293H).

104    The net position is that the applicant’s first proposition has no relevance outside of criminal trials (which is not the present case). The High Court has expressly indicated in Vasiljkovic v Commonwealth at [33], that ‘[e]xtradition is not part of the Australian criminal justice system. It involves no determination of guilt or innocence.’ In any event, when issue estoppel is excluded from the criminal justice realm, the doctrine of abuse of process operates in an analogous manner. The applicant’s second proposition is irrelevant and the case law properly understood supports the moving respondent’s reliance upon notions of estoppel in the present context.

105    The applicant makes a further contention that there are some cases where a court hearing an application for an order in the nature of habeas corpus can review the reasonableness of the conclusion of a magistrate as to the sufficiency of evidence to meet a standard of criminal guilt. Even if that were the case, it is presently irrelevant. The applicant cannot seek to review the decision of the magistrate in the s 19 proceeding because that has been decisively confirmed by the High Court. Moreover, the decision of the magistrate under s 12, and that of the Attorney-General under s 16, does not involve any assessment of the sufficiency of evidence as to guilt. Indeed, one of the principal objects of the Act is to provide for proceedings to determine whether a person is to be, or is eligible to be, extradited ‘without determining the guilt or innocence of the person of an offence’ (s 3(a) of the Act): Vasiljkovic v Commonwealth at [33].

106    The applicant claims that, as the s 21 proceeding pertains only to the magistrate’s determination under s 19, and does not call into question the decision of the magistrate under ss 12 and 15, and that of the Attorney-General under s 16, ‘any of the previous Applications’ cannot have touched upon these issues and therefore cannot be the subject of estoppel or res judicata. However, this claim does not countenance the applications made outside of the regime of the Act; namely, the s 39B review proceedings, pursuant to which challenges to the decisions under ss 12, 15 and 16 may be (and have been) made.

Translation

107    The applicant claimed that the moving respondents’ notice of motion should not proceed until there is an agreed English translation of the extradition request and accompanying documents.

108    The applicant suggests that the question whether the third respondent is subject to an obligation to provide an English translation by a certified and qualified NAATI translator is ‘controversial’. The applicant explains that the Republic of Croatia provided a translation, and that if it were not the subject of an obligation to do so, then it should not have done so. However, the fact that the Republic of Croatia is not obliged to provide such a translation does not preclude it from doing so.

109    Furthermore, the applicant concedes that, throughout the various proceedings, both parties (and the courts) relied upon the translation provided. The applicant now takes issue with the translation of a document that was found by the magistrate to be a duly authenticated warrant issued by the extradition country for the arrest of the applicant (pursuant to s 19(3)(a)). As such, this constitutes an abuse of this Court’s process. Any issue of the accuracy of the translation should have been raised in the context of the s 19 proceeding, and could have been raised on the basis that the documents were not ‘supporting documents’ within the definition in s 19(3)(a) of the Act.

110    In any event, as stated above, even if the Court accepted that the English translation of the extradition request and accompanying documents was inaccurate, this does not of itself demonstrate the invalidity of the decisions made on the basis of such a document: Oates v Attorney-General (Cth) at [133]; McHugh Holdings Pty Ltd v Director General Communities NSW at [41].

111    Furthermore, even if regard is had to the applicant’s contention that a proper translation indicated that the court had ‘accused’ the applicant rather than ‘charged’ him, this would self-evidently meet a standard according to which the relevant decision-maker needs to be satisfied that the person had been ‘accused’.

Conclusions

112    The process of reasoning inherent in the analysis of the moving respondents’ submissions at [54] to [87] above and in the analysis of their answers to those aspects of the applicant’s case raised in the applicant’s submissions at [88] to [111] above, lead me to the following conclusions:

(1)    In respect of the primary relief sought in the application (declaratory relief that the applicant has been unlawfully imprisoned and is still unlawfully imprisoned (para (ii)) and the order in the nature of a writ of habeas corpus (para (iv)), which is also the primary relief sought in the ‘further amended application’ dated 11 October 2010 (paras (ii) and (iv)), the applicant has no reasonable prospects of prosecuting this part of the proceeding by reason of the principle of res judicata;

(2)    in respect of the relief sought in the application for a declaration that the applicant is not an ‘extraditable person’ (para (i)), which is also sought in the ‘further amended application’ dated 11 October 2010 (para (i)), this is, as reasoned in [64] – [66] and [95] above, a statutory concept which is not a jurisdictional fact for this Court to determine: Paniche v Vanstone at [61]. On that basis, the Court cannot grant the declaration;

(3)    in respect of the relief sought in the application for a declaration that the applicant is only required for questioning (and is not accused or charged with committing the extradition offences) (para (iii)), which is also sought in the ‘further amended application’ dated 11 October 2010 (para (iii)), the pleadings in the statement of claim (paras 4, 5 and 21) and in the ‘amended statement of claim’ dated 14 October 2010 (paras 4, 5, 5A, and 21) make it clear that such relief only goes to the question of whether the applicant is an ‘extraditable person’, a question on which this Court cannot grant the applicant relief. The relief sought, in conjunction with the relevant pleadings, does not disclose any reasonable cause of action.

(4)    in respect of the relief sought in the ‘further amended application’ dated 11 October 2010 for declarations that the offences in question were not at the time of their alleged commitment ‘offences of the Republic of Croatia’ (paras (ii)A, (iii)G – (iii)J) and that there is not warrant issued by the Republic of Croatia for the arrest of the applicant for an offence within the meaning of s 19(3)(a) of the Act (para (iii)K), the pleadings in the statement of claim (paras 18 – 20) and in the ‘amended statement of claim’ dated 14 October 2010 (paras 6, 18, 18A and 20) make it clear that such relief only goes to the question of whether the applicant is an ‘extraditable person’, a question on which this Court cannot grant the applicant relief. The relief sought, in conjunction with the relevant pleadings, does not disclose any reasonable cause of action;

(5)    in respect of the relief sought in the ‘further amended application’ dated 11 October 2010 for orders for judicial review (paras (iii)B and (iii)C), this would, as the moving respondents contended, have a tendency to cause embarrassment in the proceeding insofar as it is not appropriate to ask a court to order judicial review of an administrative decision. Such a review is undertaken at the instigation of a party to the proceeding.

(6)    In respect of the relief sought in the ‘further amended application’ dated 11 October 2010 for orders staying and/or setting aside the s 19 committal decision; the warrant issued pursuant to s 12; the decision to remand made pursuant to s 15; and the proceedings pursuant to the issue of the s 16 notice (paras (iii)D and (iii)E) are all part of the collateral challenge to the issue of the s 19 warrant and, for the reasons given at [90] – [92] above, the applicant has no reasonable prospect of prosecuting this part of the proceeding;

(7)    In respect of the relief sought in the ‘further amended application’ dated 11 October 2010 for an order restraining the first respondent from making a determination under s 22 of the Act that the applicant be extradited to the Republic of Croatia (para (iii)F), no prohibition can restrain the Minister entering upon an inquiry into any of the mattes or issues that he is to consider in the exercise of his discretion under s 22 of the Act; and

(8)    The proceeding is an abuses of process in each of the respects referred to in [75] above.

113     It would be futile to grant the applicant leave to file the ‘further amended application’ dated 11 October 2010 and the ‘amended statement of claim’ dated 14 October 2010. They would not improve the prospect of the applicant successfully prosecuting the proceeding or any part of the proceeding and, in the respects mentioned, the proceeding would continue to be an abuse of process.

114    For these reasons, I propose to summarily dismiss the applicant’s application of 14 September 2010 pursuant to s 31A(2) of the Federal Court Act and O 20 r 5 of the Rules with costs, as taxed or agreed.

Associate:

Dated:    19 November 2010