FEDERAL COURT OF AUSTRALIA

Honourable Brendan O’Connor v Zentai [2011] FCA 1162

REASONS FOR DECISION

1    On 16 August 2011, the Full Court made orders and published its reasons in O’Connor v Zentai [2011] FCAFC 102. By those orders, the Full Court allowed in part an appeal from orders made by McKerracher J on 10 December 2010. The effect of the orders of the Full Court was to leave in place an order in the nature of mandamus directed to the first appellant, The Honourable Brendan O’Connor, Commonwealth Minister for Home Affairs, but to vary the content of the tasks which he was directed to perform.

2    An aspect of the orders of McKerracher J was to stay the operation of his Honour’s mandamus order for 21 days, and during that period to continue in force orders which had previously been made staying warrants for the arrest of the respondent, Charles Zentai, and admitting him to bail. That state of affairs was subsequently extended and maintained during the period required for the hearing and determination of the appeal.

3    When the Full Court gave judgment on 16 August 2011 the parties, by consent, requested the further extension of the stay orders made to that point, and the continuation of the respondent’s bail. This was said to be necessary to give the parties, particularly the appellants, the opportunity to consider making application to the High Court for special leave to appeal from the judgment of the Full Court.

4    In the result, the orders of 16 August 2011 included the following:

6    For a period of 28 days, or should an application be made to the High Court for special leave to appeal, for a period of 49 days:

6.1    the order set out in paragraph 4 of the orders made by McKerracher J on 10 December 2010 in Federal Court proceeding No. WAD 220 of 2009, as varied by this court, be stayed; and

6.2    the orders made by McKerracher J on 16 December 2009 in Federal Court proceeding No. WAD 220 of 2009, whereby

(a)    the warrant issued by the second respondent, a Magistrate of the State of Western Australia, dated 20 August 2008 pursuant to subsection 19(9) of the Extradition Act 1988 (Cth), committing the first respondent to imprisonment in Hakea Prison, Canning Vale, Western Australia was stayed until further order of the court,

(b)    the first respondent was admitted to bail upon the conditions set out in Schedule 1 to the order,

shall remain in force.

5    The justification for making an order in these terms was given by the Presiding Judge, Besanko J, with whom I handed down the judgment of the Full Court on 16 August 2011. His Honour said:

Provisionally, at least, the only things that need to be attended to are perhaps staying order number 4, as varied, and staying the warrant issued by the second respondent under section 19(9) of the Extradition Act, continuing the order as to bail. So they seem to be the matters that need to be attended to, and we would propose doing that for a period of 21 days, or, should an application be made to the High Court for special leave to appeal, for a period of 42 days, so that if the parties wanted a stay beyond that, they would have to make an application to the High Court. Yes, actually, it’s 28 days you have to make the application, so it would be for a period of 28 days and then we would add a further period of 21 days on top of that.

Counsel for both sides concurred in the course proposed by Besanko J.

6    There was no suggestion that the Full Court should exercise its jurisdiction to grant a stay pending the hearing and determination of any application for special leave to appeal that should be lodged. In due course, an application for special leave to appeal from the judgment of the Full Court was made within the 28 days allowed by the Rules of the High Court of Australia.

7    On 27 September 2011, Associates of the Judges who had constituted the Full Court received an email from the appellants’ solicitor, to which was attached a signed consent order, the effect of which would have been further to extend the stay of the mandamus order and the arrest warrants, and further to extend the respondent’s bail. The extensions were sought pending determination of the appellants’ application to the High Court for special leave to appeal in proceeding number P39/2011, and, if special leave to appeal were granted, pending determination of the appeal. The power to make consent orders on the papers given by rule 39.11 of the Rules of Court was invoked.

8    Despite the assistance which I received from correspondence sent to my Associate by the appellants’ solicitor in the days that followed his email of 27 September 2011, I was not prepared to act under rule 39.11 in the circumstances. I took that course after consulting with another member of the Full Court, the third one then being, and today being, on leave.

9    As I come to hear the parties’ application for extensions of the stays and warrants, and of the respondent’s bail, I am exercising the jurisdiction of a single Judge of the court under s 25(2B)(ab) of the Federal Court of Australia Act 1976 (Cth). I accept that I do have that jurisdiction. The question which arises is whether it should be exercised.

10    I accept that, normally, it is to the intermediate court of appeal that a party intending to seek special leave to appeal should apply for a stay of the operation of that court’s orders: Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681 at 684. In that case, Brennan J said:

When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that court – the court in which the matter is pending and which is familiar with the matter – that an application to stay should first be made. In this case, the Court of Appeal, not wishing to pre-empt the view that may be expressed in this Court, tailored its order accordingly. In future, there should be no inhibition on the court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this court.

Although, with respect, I admit to some difficulty with the concept that, once final judgment has been given by the intermediate court of appeal, the proceeding which was before it might still be regarded as pending in it, I accept that Brennan J’s words have generally informed the practice of the Full Court when a stay, pending the hearing and determination of an application for special leave to appeal, has been sought.

11    However, in the present case, such a stay was not sought. When Besanko J made specific reference to the possibility that one or other of the parties, if seeking special leave to appeal, might apply to the High Court itself for a stay, the parties concurred in the making of orders that were tailored to permit that possibility. The present case does not, therefore, fit the Jennings template. Rather, the matter having been dealt with by the Full Court without any party referring to Jennings, or to the practice therein endorsed, the parties now seek the variation, or at least the extension, of the orders made by the Full Court, and they do so on grounds contrary to those which led to the stay which was, in fact, granted by the Full Court. In short, the Full Court having given the parties 49 days to allow such further steps as were then in contemplation to be taken, the parties now seek a different and longer period for those same purposes. Sitting as a single Judge, although I have jurisdiction to make an order having such an effect, I am reluctant to do so.

12    I should also mention the circumstance that the proceeding out of which the appeal arose was not a conventional one between party and party. The orders originally made, and now maintained as varied by the Full Court, involved public law. An order in the nature of mandamus requiring a Minister of the Crown to act in a certain way is a serious matter which involves weighty public interest considerations. Merely by securing the consent of the respondent, the appellants should not assume that the obligation imposed on the Minister to discharge his duties under the Extradition Act 1988 (Cth) may, as a matter of presumptive entitlement, be put to one side. This is all the more so since that obligation has now, in one form or another, existed since December last year.

13    It has been pressed upon me today that, if the stay and bail orders were not to be extended, the appellants’ application for special leave would be rendered nugatory in the sense that, under s 22 of the Extradition Act, there could be only one decision which the Minister might reach conformably with the reasons of the Full Court. That is not a submission which I find attractive. I am not disposed to approach the obligations which the Minister has under the mandamus ordered by the Full Court as a mere formality. It is true, I suppose, that, once performed, the Minister’s statutory function will be a closed event, but so to state is to go no further than to stress the importance of the Minister’s performing the significant public function which is entrusted to him under the Act. Submissions of this kind might well have been more cogent if made in a timely way to the Full Court, but, as I have said, that was not the course adopted by the parties.

14    Counsel for the respondent has also asked me to take into account what was said to be the likely risks to the respondent’s health if he were to be incarcerated pursuant to the operation of the arrest warrants which have been issued under the Act. No recent affidavit has been read to the court in support of such a submission. Rather, reliance was placed upon two medical reports which were exhibited to affidavits read in the proceeding before McKerracher J.

15    The first medical report was that of Dr Donald Latchem, a practitioner with an organisation, it seems, called Coastal Cardiology, written on 8 May 2009. It said:

Therefore, Mr Zentai’s chief problems are ongoing paroxysmal atrial fibrillation which appears to be a chronic condition and we would have difficulty improving on the control as he’s already had toxic side-effects from the best anti-arrhythmic agent for this that’s currently available (Amiodarone). The atrial fibrillation is likely to get worse with time and is likely to continue to cause Mr Zentai the recurrent symptoms described above but also places him at risk of complications of stroke and heart failure. Whilst the stress of incarceration might exacerbate this condition, I don’t have any conclusive evidence that this would be the case. Mr Zentai is likely to require ongoing medical treatment for his problem and this may include admissions to hospital to settle the rhythm disturbance. If Mr Zentai is incarcerated I imagine he would be able to receive and have access to appropriate medical care provided there was a tertiary hospital within close proximity of his location.

The other report was that of Dr Geoffrey K. Lane, a cardiologist practising at the St John of God Hospital in Murdoch in Western Australia, written on 8 October 2009. The paragraph in his report to which my attention was drawn read as follows:

I am uncertain as to what effect a period of incarceration awaiting trial in Hungary and the stress of prosecution would impact on his health. He is an elderly gentleman with significant but not life-threatening medical problems and it would certainly be possible that such a period of incarceration and the stress of a trial could impact on his health, but to predict as to what extent this could occur is impossible.

From their terms, these passages are self-evidently inadequate, both in content and in timing, to sustain the submission now made on behalf of the respondent.

16    In the circumstances, and for the reasons given, I do not propose to exercise the power given to me under section 25(2B)(ab) of the Federal Court Act in the present case.

Associate:

Dated:    13 October 2011