FEDERAL COURT OF AUSTRALIA

O’Donoghue v Attorney-General for the Commonwealth of Australia [2013] FCA 382

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal is dismissed.

2.    The applicant is to pay the respondents’ costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an urgent application for leave to appeal against the decision of the primary judge dismissing the applicant, Mr O’Donoghue’s, application for an interlocutory injunction (O’Donoghue v Attorney-General for the Commonwealth of Australia [2013] FCA 319).

2    The application is urgent because the Commonwealth seeks to remove Mr O’Donoghue from Australia pursuant to a surrender warrant issued by the Minister for Justice for the extradition of Mr O’Donoghue to the Republic of Ireland. By his application before the primary judge, Mr O’Donoghue sought an interlocutory injunction preventing the Commonwealth from removing him from Australia. Mr O’Donoghue’s main contention is that he will be deprived of the opportunity to pursue a number of Australian legal proceedings to which he is a party if he was removed from Australia. Yesterday, the primary judge dismissed the application for the interlocutory injunction. The Commonwealth has said that it would be prepared to delay the execution of the warrant until this afternoon, so as to give Mr O’Donoghue an opportunity to argue this case before me today for leave to appeal.

3    For Mr O’Donoghue to succeed in obtaining leave to appeal, he needs to demonstrate that the decision is attended with sufficient doubt to warrant the grant of leave; and that if the decision was erroneously made and not overturned, he would suffer a serious injustice.

4    There is no doubt that Mr O’Donoghue satisfies the second of the two limbs. It was the first limb that was argued before me today.

5    Mr O’Donoghue commenced this proceeding by filing an originating application which sought a permanent injunction. Mr O’Donoghue also referred me to an application to amend the originating application which had been filed at very short notice but he says was brought to the attention of the primary judge. I will discuss an aspect of this amendment application later in the judgment because it formed the basis of a claim by Mr O’Donoghue that the primary judge had fallen into error.

6    Mr O’Donoghue identified four respects in which the primary judge had erred.

error in respect of the evidence

7    First, said Mr O’Donoghue, the primary judge erred in making the findings that he made at [38] of his judgment. These findings were in the following terms:

Finally (and as identified by Sackville J in Li v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 667 (at [21]-[25]) and Emmett J in Li v Minister for Immigration & Multicultural Affairs [2001] FCA 1414 (at [44]-[47])), there is an absence of evidence of inability to conduct proceedings from Ireland. There is merely assertion as to the inability to do so. While it may be difficult, I am far from satisfied that the inconvenience of pursuing the proceedings from Ireland, if they are to be pursued, outweighs the high public interest in Australia finally being able to meet its obligations under the Treaty with Ireland for extradition.

8    The evidence before the primary judge on this question is to be found in the affidavit of Mr O’Donoghue dated 28 March 2013, where Mr O’Donoghue swears:

I say and believe that if I am extradited to Ireland before the determination of the above matters, it will not be possible to prosecute these matters properly, adequately or in accordance with the laws of Australia or the International Covenant on Civil and Political Rights.

9    Mr O’Donoghue’s reference in his affidavit to “the above matters” is a reference to a number of legal proceedings currently on foot in Australia to which Mr O’Donoghue is a party. There are two proceedings in the Family Court of Australia, a proceeding which was started in the District Court of Western Australia but has since been transferred to the Supreme Court of Western Australia and also a proceeding in this Court founded upon a discrimination complaint of the Australian Human Rights Commission Act 1986 (Cth).

10    Mr O’Donoghue submitted that it was implicit in the statement in his affidavit that he would be taken into custody in Ireland and the fact that he was in prison in Ireland would present particular difficulties for him in prosecuting his Australian legal proceedings. Mr O’Donoghue argued that the primary judge had, therefore, erred in finding that there was an absence of evidence of an inability to conduct the proceedings from Ireland.

11    I do not accept this argument. In my view, the primary judge was aware that on being extradited from Australia, Mr O’Donoghue would be placed into custody in Ireland. In referring to the absence of evidence of an inability to conduct the proceedings from Ireland, the primary judge was referring to the absence of evidence of any specific circumstances which would prevent Mr O’Donoghue from pursuing the litigation from Ireland. The primary judge recognised, as do I, that it would be difficult for Mr O’Donoghue to pursue proceedings from Ireland whilst he was in prison. However, the primary judge took this circumstance into account and found that this did not outweigh “the high public interest in Australia finally being able to meet its obligations under the Treaty with Ireland for extradition.”

12    In my view, therefore, the primary judge’s finding is not attended by sufficient doubt to warrant the grant of leave to appeal.

misinterpretation of case law

13    Mr O’Donoghue then submitted that the primary judge had erred in his interpretation of the decision in Rivera v Minister Administering the Extradition Act 1988 (Cth) (2007) 164 FCR 116 (Rivera). In that case, Mr Rivera failed to obtain an injunction enjoining his removal from Australia, on the basis of his argument that he had litigation pending in Australia.

14    The primary judge relied on Rivera in deciding not to grant an injunction preventing the removal of Mr O’Donoghue.

15    The primary judge relied particularly on the following observations of Gyles J in Rivera at [10]:

I am also not persuaded that the existence of collateral proceedings in Australia would amount to any proper basis for qualifying the obligation under section 23. It may be that a person who is extradited would find great difficulty in pursuing litigation in Australia for practical reasons. However, extradition does not in itself lead to impossibility of presentation of such a case. In any event, the filing of a proceeding by a person can hardly be seen as a basis for intervening in relation to the operation of s 23.

16    Mr O’Donoghue argued that Rivera was distinguishable because the litigation in that case was directly related to the extradition of Mr Rivera, whereas, said Mr O’Donoghue, his litigation which is pending in Australia was not at all related to his extradition.

17    I do not accept the submission of Mr O’Donoghue. In my view, the observations of Gyles J go wider than referring only to extradition related litigation and refer to litigation generally.

18    I also accept Mr Macliver’s contention that Mr O’Donoghue’s submission was flawed because if Mr Rivera had failed to obtain an injunction preventing his removal from Australia, where the pending litigation was litigation directly challenging the validity of the extradition, the position would be a fortiori if the pending litigation had nothing to do with the validity of that person’s extradition.

19    Accordingly, I am of the view that there is not sufficient doubt surrounding the primary judge’s interpretation of the Rivera case to grant leave to appeal.

the extradition act 1988 (Cth)

20    The third error alleged by Mr O’Donoghue was that the primary judge misconstrued the operation of s 26 of the Extradition Act.

21    The relevant provisions of s 26 of the Extradition Act reads as follows:

…

(5)    Where:

(a)    a surrender warrant or a temporary surrender warrant is issued in relation to a person;

(b)    the person is in custody in Australia under the warrant, or otherwise under this Act, more than 2 months after the day on which the warrant was first liable to be executed;

(c)    the person applies to the Federal Court or the Supreme Court of the State or Territory in which the person is in custody; and

(d)    reasonable notice of the intention to make the application has been given to the Attorney-General;

the Court shall, subject to subsection (6), order that the person be released from that custody.

(6)    Where the Court is satisfied that the person has not been conveyed out of Australia under the warrant within the period of 2 months or since the person last made an application under subsection (5), as the case may be:

(a)    because to do so would have been dangerous to the life or prejudicial to the health of the person; or

(b)    for any other reasonable cause;

the Court shall not order that the person be released from custody.

22    Mr O’Donoghue argued that s 26(6) of the Extradition Act gives the Court an independent power to order that a person not be released from custody for any reasonable cause. Mr O’Donoghue contended that such a reasonable cause was his desire to pursue his ongoing litigation in Australia. Thus, said Mr O’Donoghue, the primary judge erred in failing to find that the Court had the power to order that he remain in custody whilst he pursued that litigation.

23    The primary judge found that s 26(6) was to read with s 26(5) of the Extradition Act. The primary judge went on to find that the provisions were intended to protect a person from being held for an undue period of time in custody pending extradition. The primary judge found that this did not apply to Mr O’Donoghue.

24    I agree with the manner in which the primary judge construed s 26 of the Extradition Act. The statutory scheme operates on the basis that a person who has been in custody for more than two months after the issue of a surrender warrant has a right to make an application to the Court for release from custody, on giving notice to the Attorney-General. Subsection 26(6) imposes a restraint upon the circumstances when the Court will release that person from custody. In my view, s 26(5) and s 26(6) cannot be read as conferring a power on the Court simply to order that someone remain in custody indefinitely so that that person can continue to conduct litigation in Australia.

25    It follows that I find the primary judge’s construction of s 26 of the Extradition Act is not attended with sufficient doubt to grant leave to appeal.

the migration act 1958 (cth)

26    Mr O’Donoghue then contended that the primary judge erred in failing to deal with his application for a criminal justice stay warrant under ss 150, 151, 155 and 157 of the Migration Act, which said Mr O’Donoghue, he had raised in his application to amend his originating application.

27    It is true that the primary judge did not deal with that claim. However, the failure to deal with that claim demonstrated no error on the part of the primary judge. This is because first, the claim formed part of an application to amend the originating application which had not yet been heard, let alone granted; and, secondly, in any event, those sections of the Migration Act have nothing to do with Mr O’Donoghue’s position. Those sections have relevance in relation to persons who are charged under the criminal justice process. Mr O’Donoghue is not in that position.

28    In these circumstances, I have come to the view that the primary judge’s decision is not attended with sufficient doubt to warrant the grant of leave to appeal. The application for leave to appeal is, therefore, dismissed.

Associate:

Dated:    26 April 2013