FEDERAL COURT OF AUSTRALIA

Matson v Attorney-General (Cth) [2021] FCA 161

ORDERS

THE COURT ORDERS THAT:

(1)    The interlocutory application of the applicant sent to the Court on 6 January 2021 and filed on 11 January 2021 seeking to reopen the hearing is refused.

(2)    The application of 19 February 2021 for leave to reopen the interlocutory application filed on 11 January 2021 is refused.

(3)    Each of the interlocutory applications of the applicant filed on 25 and 29 September 2020 is refused.

(4)    Pursuant to s 31A of the FCA Act, the originating application filed on 4 August 2020 is dismissed.

(5)    Subject to the following orders, the applicant is to pay the costs of the first and second respondents of and incidental to the proceedings to be taxed in default of agreement.

(6)    If either the applicant or the first and second respondents wish to contend for some different order as to costs, he or they are by 4 pm on 10 March 2021, to file and serve an outline of submissions setting out the different order for which they contend and the submissions in support of the making of that order, with those submissions not to exceed five pages.

(7)    In the event that the applicant or the first and second respondents do file submissions in accordance with the preceding order, the other party is, by 4 pm on 17 March 2021, to file responsive submissions, not exceeding five pages.

(8)    Subject to any further order, the Court will then determine the outstanding issues as to costs on the papers.

(9)    The parties do not have leave to file and serve any documents other than those referred to in Orders 6 and 7.

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

REASONS FOR JUDGMENT

WHITE J:

Introduction

1    This judgment concerns five interlocutory applications in proceedings arising from the proposed extradition of the applicant to the United State of America (the USA).

2    The underlying proceedings were commenced by the applicant on 4 August 2020 and name five respondents. They are the fourth proceedings commenced by the applicant in the original jurisdiction of this Court in respect of his extradition. Each of his previous actions has failed. In the current proceedings, the applicant seeks relief of diverse kinds directed to avoiding the extradition. As will be seen, there is considerable overlap between the relief now claimed by the applicant and that claimed by him in his previous actions.

3    The first four interlocutory applications are:

(a)    the applicant’s application for bail in [5] of the claim for interlocutory relief contained in the Originating Application filed on 4 August 2020;

(b)    the application of the first and second respondents filed on 11 September 2020 seeking summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) in respect of the whole of the applicant’s underlying proceedings or, alternatively, a stay on the basis that the proceedings are an abuse of the process of the Court;

(c)    the interlocutory application of the applicant filed on 25 September 2020 by which he seeks leave retrospectively to file the amended originating application (the proposed AOA) filed without leave on 3 September 2020 and the “temporary stay” of the interlocutory application of the first and second respondents until the remaining respondents have been served; and

(d)    the interlocutory application of the applicant filed on 29 September 2020 by which he seeks leave to file a further amended originating application (the proposed FAOA).

4    These four applications were heard on 30 September 2020. The applicant said that, if he was granted leave to file the FAOA, he would not press the application for the “temporary stay” of the first and second respondents’ application.

5    When reserving judgment on 30 September 2020, the Court ordered that, without the leave of the Court, no further interlocutory applications should be filed while judgment was reserved. Without seeking leave, the applicant caused to be sent to the Court on 6 January 2021 two interlocutory applications and another interlocutory application on 7 January 2021. The second and third of these applications seemed to be later (and updated) iterations of the first. Each sought, in effect, leave to reopen the proceedings, leave to amend the originating application still further, certain other relief, and leave to make further submissions. Although the form of the proposed further amended originating application which the applicant provided was not so entitled, I will refer to it as the “Second Proposed Further Amended Originating Application” (the 2PFAOA).

6    The second interlocutory application provided on 6 January 2021 was, subject to the grant of leave, accepted for filing on 11 January 2021 and was heard on 4 February 2021. The applicant confirmed that it was that particular interlocutory application which he wished to press. The Court granted leave retrospectively for the filing of that interlocutory application and reserved judgment on the remaining aspects. It is the fifth of the interlocutory applications with which this judgment is concerned. I will refer to it as “the fifth interlocutory application”.

The procedural and litigious background

7    The background which follows should be understood against the scheme for extradition of persons contained in the Extradition Act 1998 (Cth) (the Act). That scheme was explained in a judgment of the Full Court concerning the present applicant: Matson v United States of America [2018] FCAFC 57; (2018) 260 FCR 187 (Matson Full Court), at [9]-[22] and by a previous Full Court in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389. In summary, the Act contemplates four stages:

(a)    either an application to a specified court by the country seeking the extradition (the extradition country) under s 12 of the Act or the receipt by the Attorney-General of an extradition request from an extradition country (s 16);

(b)    the arrest of the person and consideration under s 15 of whether the person should be remanded in custody or granted bail for such periods as be necessary for proceedings under s 15A (waiver of extradition), s 18 (consent to surrender) or s 19 (proceedings before a Magistrate or eligible Federal Circuit Court judge to determine whether the person is eligible for surrender);

(c)    relevantly to this case, the determination by a court pursuant to s 19 of whether the person is eligible for surrender; and

(d)    the decision by the Attorney-General under s 22 to surrender the person to the extradition country.

8    In the applicant’s case, all four stages in the process have been completed. As will be seen, the course of events has been protracted, principally because of challenges made by the applicant to decisions made, and actions taken, at various stages of the process.

9    On 21 May 2014, the USA (the fifth respondent) requested the extradition of the applicant from Australia. The basis on which the USA seeks the applicant’s extradition is contained in the judgment of Rangiah J (Matson v United State of America [2016] FCA 1245 (Matson 2016)) at [4]-[6]:

[4]    On 26 October 2005, a grand jury in the USA returned an indictment charging Mr Matson and two others with the following offences, carrying the following maximum periods of imprisonment:

•    one count of conspiracy to commit mail fraud and wire fraud – 5 years;

•    five counts of mail fraud – 20 years;

•    nine counts of wire fraud – 20 years.

[5]    On 21 December 2005, another grand jury returned a superseding indictment charging Mr Matson and the two others with the original offences and an additional count of conspiracy to commit money laundering, which carries a maximum penalty of 20 years imprisonment.

[6]    The allegations made by the USA are to the effect that between 1997 and 2000, Mr Matson, his father, Roger Matson and Gordon Robert Grant made false promises and representations to induce investors to invest in fraudulent schemes related to gambling on horse and greyhound racing. The schemes are alleged to have initially involved investors paying money for computer hardware and software known as the Professional Race Organizer Program (“the PRO Program”), which would allow investors to “generate a consistent cash income” and “successfully back every runner in every race”. It is alleged that after receiving large amounts of money from the investors for the PRO Program, investors were invited by the conspirators to invest in a new program, a Managed Accounts Program, which would “increase their opportunity for return”. Under this program the investors’ funds were to be pooled and the conspirators were to manage the wagering process. In 2000, investors were presented with an opportunity to invest up to $75,000 each to be used for wagering on the Melbourne Cup. The USA alleges that the conspirators then “vanished along with substantially all of the investors’ money”.

10    The notice of receipt of the USA’s extradition request contemplated by s 16(1) of the Act was signed by the former Minister for Justice (Mr Keenan) on 4 September 2015 (the s 16 Decision) and, on 17 September 2015, a Magistrate (Mr Morrison), acting under s 12 of the Act, issued an extradition warrant (the s 12 Warrant).

11    The applicant (then 38 years old) was arrested and brought before a Magistrate on 26 October 2015. The evidence does not disclose whether he made an application for bail at that time but it does indicate that he was, under s 15(2) of the Act, remanded in custody.

12    On 15 January 2016, a Magistrate (Mr Cosgrove) determined under s 19 of the Act that the applicant was eligible for surrender to the United States (the s 19 Decision) and ordered, under s 19(9) of the Act, that he be committed to prison to await the surrender.

13    The applicant applied to this Court under s 21 of the Act for review of the s 19 Decision. That application (Action QUD89/2016 in which the respondents were the USA and, in effect, Mr Cosgrove) was dismissed by Rangiah J on 21 October 2016 in the Matson 2016 judgment. The applicant then appealed against Matson 2016 to the Full Court.

14    Earlier, on 26 July 2016, the applicant had filed in this Court an application for review of the ss 12 and 16 Decisions (Action QUD569/2016 in which the respondents were the USA, Mr Keenan and Mr Morrison). The hearing of Action QUD569/2016 was initially listed for 12 December 2016 but was adjourned to 10 February 2017. Then, on 21 February 2017, Action QUD569/2016 was referred to the Full Court to be heard jointly with the applicant’s appeal against Matson 2016. That hearing took place on 25 May 2017. The Full Court delivered judgment on 13 April 2018, dismissing both the appeal and Action QUD569/2016. This is the Matson Full Court judgment.

15    The effect of Matson Full Court was to uphold the s 16 Decision and to confirm that the applicant was eligible for surrender under s 19 of the Act.

16    Nine months later, on 1 February 2019, the Acting Attorney-General (Mr Hunt) determined, under s 22(2) of the Act, that the applicant be surrendered to the United States (the s 22 Decision) and issued a warrant under s 23 of the Act for his surrender (the Surrender Warrant).

17    Then, on 11 February 2019, the applicant filed an originating application under s 39B of the Judiciary Act 1903 (Cth) seeking review of the s 22 Decision and of the decision under s 23 to issue the Surrender Warrant for his surrender. That application (Action QUD107/2019 in which the Attorney-General of the Commonwealth of Australia was the sole respondent) was listed for hearing before Rangiah J on 22 July 2019 but, at the applicant’s request, the hearing was adjourned to 30 September 2019, and then to 18 November 2019.

18    The hearing before Rangiah J commenced on 18 November 2019 with the applicant represented by Mr Morris QC. However, shortly after its commencement, Mr Morris QC sought and was granted leave to withdraw as counsel for the applicant. The applicant then proceeded as an unrepresented litigant and judgment was reserved. However, on 5 February and 11 March 2020, the applicant filed interlocutory applications seeking to have the hearing reopened, as well as orders for discovery and production of documents. Those applications were heard on 25 June 2020 and were dismissed. The applicant was represented by Mr J Burnside QC and Mr D Freedman in that hearing.

19    Eleven days later, on 6 July 2020, the applicant filed another interlocutory application seeking the reopening of the hearing in Action QUD107/2019 and, shortly afterwards, lodged an application seeking an order that Rangiah J recuse himself from the proceedings. Then on 16 July 2020, the applicant filed an interlocutory application seeking leave to reopen the amended interlocutory application filed on 11 March 2020. The applicant filed yet further interlocutory applications on 5 and 19 August 2020 in the proceedings in which Rangiah J had reserved judgment.

20    Justice Rangiah heard the various interlocutory applications filed after 25 June 2020 on 28 August 2020. At the time of the hearing of the four interlocutory judgments in this action on 30 September 2020, judgment in Action QUD107/2019 was reserved. It was, however, delivered on 28 October 2020 (Matson v Attorney-General [2020] FCA 1558 (Matson 2020)). The parties were given the opportunity to make further submissions in the light of Matson 2020. It will be necessary to return to that judgment later in these reasons.

The judgment in Matson 2016

21    Given the issues raised by the respondents’ interlocutory application and the application by the applicant to amend his originating application, it is appropriate to refer in more detail to the reasons in Matson 2016 and in Matson Full Court.

22    In Matson 2016, Rangiah J identified the application for review then before him as raising two broad issues (at [44]):

(a)    Whether the Magistrate erred in finding that Mr Matson is an eligible person for surrender – this involves consideration of whether the Magistrate correctly decided that the eligibility criteria under s 19(2) are met (“eligibility issues”).

(b)    Whether Mr Matson can adduce additional evidence which was not before the Magistrate at first instance in order to support allegations of undue delay, false and fraudulent statements and conspiracy by the USA (“impropriety issues”).

23    In relation to the eligibility issues, the applicant raised seven sub-issues which Rangiah J addressed under the following headings:

    Whether warrant is duly authenticated;

    Whether warrant and charging document insufficient and time-barred;

    Whether extradition request made through diplomatic channel;

    Whether probable location identified;

    Whether statement of the law describing punishment for offences and limitation given;

    Whether insufficient description of facts and conduct; and

    Whether dual criminality requirement satisfied;

24    Justice Rangiah addressed the impropriety issues by identifying three sub-issues, namely:

    Adducing evidence not before the Magistrate – allegations of delay, fraud and falsity;

    Section 7 extradition objection; and

    Other matters – humans rights considerations.

25    Justice Rangiah dismissed each of the applicant’s contentions on these issues and sub-issues and, accordingly, dismissed the application for review made under s 21 of the Act.

The judgment in Matson Full Court

26    It will be recalled that the judgment in Matson Full Court determined, first, the appeal against Matson 2016 and, secondly, the application under s 39B of the Judiciary Act for judicial review of the s 16 Decision of Minister Keenan and of the s 12 Decision of Magistrate Morrison.

27    The Full Court noted that, in the appeal against Matson 2016, the applicant (then represented by senior counsel) pressed only one of the 19 grounds of appeal, being Ground 11:

11.    The primary Judge erred in concluding that there is no error in the conclusion of the second respondent that Mr Trezevant’s affidavit provides sufficient facts to satisfy section 19(3)(c)(ii) of the Extradition Act and articles XI(2)(b) and 3(c) of the Treaty.

28    That is to say, the sole matter which the applicant pursued on the appeal against Matson 2016 was whether the extradition request had been properly supported by an affidavit, statement or declaration “setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it”, as required by s 19(2)(b) of the Act and by [3(c)] of Art XI in the Treaty on Extradition between Australia and the United States of America (the Treaty).

29    The Full Court found that Ground 11 was not made out and that Mr Trezevant’s affidavit satisfied the requirements in s 19(3)(c)(ii) of the Act and [2(b)] and [3(c)] of Art XI of the Treaty, at [79].

30    The Full Court described the applicant’s application under s 39B as a collateral challenge to his extradition, at [3]. Their Honours noted that the issues on the s 39B application concerned what the applicant described as “the egregious delay” on the part of the USA in seeking his extradition and his contention that that circumstance (together with matters said to indicate a lack of candour and obfuscation) amounted to a compelling case of abuse of process or power, at [6] and [90].

31    The Full Court also noted that the applicant’s submissions on the judicial review application were directed almost entirely to the s 16 Decision rather than to the Magistrate’s issue of the warrant under s 12, at [13].

32    In dismissing the s 39B application, the Full Court said:

[89]    While it may be accepted that Mr Trezevant’s explanation of the delay is by no means a detailed or direct explanation, it is nonetheless difficult to accept Mr Matson’s contention that the delays apparent on the face of the extradition request were egregious and unexplained. The alleged offences were no doubt complex and the investigation extensive. The whereabouts of the defendants was unknown, itself a factor necessarily contributing to delay.

[90]    There is also no basis for Mr Matson’s contention that there was a lack of candour, or obfuscation, on the part of the United States in explaining the delay. As has been said, while it might perhaps be accepted that Mr Trezevant’s affidavit did not provide much detail in relation to the reasons or explanation for the delay, there was no relevant lack of candour or obfuscation.

[91]    Mr Matson’s submission that there was a “compelling case” of abuse of process or fraud on the extradition power must also be rejected. The basis for that submission was the delay and obfuscation. Given the delay was not egregious and not entirely unexplained, and there was no lack of candour or obfuscation, it must follow that there was no abuse of process.

33    The Full Court also held that issues concerning delay have little, if any, role to play at the s 16 stage in the extradition process, at [92]; that the applicant’s challenge to his extradition on the basis of delay was premature, because the appropriate course was for him to make submissions to the Minister at the s 22 stage, at [97], [100]; and that the weight of the authorities suggested that neither the Magistrate nor this Court on review had the power under the Act to stay an extradition proceeding on the basis of abuse of process, at [99]-[100].

34    Finally, the Full Court noted that there were sound reasons of policy why the Court should be reluctant to intervene at an intermediate stage of the extradition process, in the absence of an exceptional situation, citing Harris v A-G at 413C.

The present action

35    By the originating application in the present proceedings (Action QUD254/2020) filed on 4 August 2020, the applicant seeks relief as follows:

(a)    a declaration that any attempt to surrender him to the USA pursuant to the surrender warrant issued by the Acting Attorney General under s 23 of the Act on 1 February 2019 would be invalid by reason that it is:

(i)    unlawful;

(ii)    in breach of his fundamental human rights under the International Covenant on Civil and Political Rights (the ICCPR);

(iii)    in breach of his implied constitutional right to protection from cruel and unusual punishment (Proposed Order 1).

The three particulars which the applicant provides in support of this claim all relate to the COVID-19 pandemic, namely, claims that it would pose an unacceptably high risk to his health and well-being to be surrendered to the USA; exposure to COVID-19 would breach his fundamental human rights; and such exposure would breach his implied constitutional right to protection from cruel and inhuman punishment.

(b)    an injunction to restrain that surrender from taking place (Proposed Order 2). For this claim, the applicant relies on the same particulars as he does for Proposed Orders 1, 5 and 6;

(c)    a declaration as to the invalidity of his present detention in custody, a writ of habeas corpus, and an order in the nature of mandamus to compel his release from custody (Proposed Orders 3 and 4). Again, the applicant relies on the same particulars as he does for Proposed Orders 1, 5 and 6 and, in addition, on assertions that his detention is indefinite, arbitrary, in breach of ICCPR Art 9 and constitutes cruel and unusual punishment;

(d)    an award of exemplary damages in respect of the entire period he has been in custody since 26 October 2015, at the rate of $2,500 per day (Proposed Order 5). In support of this claim, the applicant gives particulars concerning the alleged conduct of the USA, asserting non-compliance by it with treaty obligations, “lack of candour”, “deliberate obfuscation” and withholding of documents as well as claims against the Attorney-General’s Department (including allegations of complicity in the impugned conduct of the USA and the withholding of documents); and

(e)    declarations as to the invalidity of the decisions made and actions taken under ss 12, 16(1), 19, 22 and 23 of the Act (Proposed Order 6). This proposed order is supported by particulars alleging abuse of process, executive unlawfulness, incomplete disclosure of documents, conflicts of interest by the Attorney-General’s Department officers, absence of regard to the applicant’s Aboriginal ancestry, incomplete disclosure of material to the Acting Attorney-General, unreasonableness, and irrationality and illogicality.

36    In addition, the applicant seeks various forms of interlocutory relief, one of which is bail so that he may reside at his mother’s address with bail conditions fixed by the Court. By other interlocutory relief, the applicant seeks orders with respect to the conduct of Action QUD107/2019 (being the proceedings on which Rangiah J was at the time of the hearing reserved) and orders for discovery and/or production of documents.

37    There are five named respondents to the proceedings commenced on 4 August 2020. They are the Attorney-General for the Commonwealth of Australia (first respondent), the Commonwealth of Australia (second respondent), the President of the United States of America, the Honourable Donald J Trump (third respondent), the Attorney-General of the United States of America, the Honourable William P Barr (fourth respondent) and the United States of America (fifth respondent).

38    On 3 September 2020, the applicant filed a document entitled “Amended Originating Application” (the AOA). The AOA names seven respondents. These include the original five respondents, although named in different order.

39    The filing of the AOA was irregular. Not only did the applicant not have leave to file an amended originating application (as required by r 8.21 of the Federal Court Rules 2011 (Cth) (the FCR)), he did not have leave to join additional respondents (r 9.05 of the FCR) nor leave to alter the order in which the existing respondents are named.

40    At this stage, only the first and second respondents named in the proceedings commenced on 4 August 2020, namely, the Attorney-General of the Commonwealth of Australia and the Commonwealth of Australia have been served with the proceedings. The applicant has lodged a request under r 10.51(d) of the FCR for transmission of a document to a foreign government for service on the remaining respondents but that request has not yet been determined.

41    On 11 September 2020, the first and second respondents (to whom I will, unless otherwise indicated, refer to as “the respondents”) filed an interlocutory application seeking an order under s 31A of the FCA Act and r 26.01(1) of the FCR for summary judgment on the grounds that the applicant has no reasonable prospect of successfully prosecuting the proceeding, the proceeding is frivolous or vexatious, and the proceeding is an abuse of process of the Court. They rely principally on the principles of res judicata, Anshun estoppel, and abuse of process.

42    On 25 September 2020, the applicant filed an interlocutory application seeking two forms of relief: the grant of retrospective leave to file the proposed AOA on 3 September 2020 and a “temporary stay” of the respondents’ interlocutory application until the remaining respondents have been served.

43    On 29 September 2020, that is, the day before the hearing, the applicant lodged for filing a further interlocutory application. By this application, the applicant seeks leave to file the proposed FAOA. It is evident that the proposed FAOA is intended to supersede the proposed AOA.

44    The applicant did not mark up the proposed amendments in the proposed FAOA. On my understanding, it differs from the Originating Application filed on 4 August 2020 in the following material respects:

(a)    the applicant adds a further basis to his claim for a declaration (Proposed Order 1) that any attempt to surrender him to the USA would be unlawful, namely, that it would be “in breach of [his] constitutional implied right under s 116 of the Constitution to live and die in Australia together with his ancestral spirits, as First Nations people have done so for over 60,000 years”. He also adds an additional particular, namely, that such a surrender would deny him his “special connection” to Australia.

The applicant had claimed “Aboriginal ancestry” in the Originating Application but these particulars are an elaboration of his claims relying on that ancestry;

(b)    the applicant adds a further particular to his claim for exemplary damages (Proposed Order 5) by asserting that the Attorney-General’s Department had located two additional documents not previously disclosed to him, as well as other claimed inaccuracies in the Department’s response to Freedom of Information Act 1982 (Cth) requests;

(c)    the applicant revises and elaborates of some of the particulars supporting Proposed Order 6; and

(d)    the applicant now seeks an additional order (Proposed Order 7), being a declaration that the Treaty on Extradition between Australia and the USA, and the Act itself, “are invalid under the Constitution”.

45    The parties agreed that the Court should receive submissions first on the summary judgment application of the first and second respondents, with the submissions on the applicant’s second and third interlocutory applications being part of those submissions, and then submissions on the applicant’s application for bail. The hearing proceeded in that way. In the way the hearing developed, the applicant did not pursue that part of his second interlocutory application which concerns the AOA, as the form of the originating application he wished then to pursue was the proposed FAOA. The parties’ submissions were for the most part directed to the proposed FAOA, this containing the articulation of the claims which the applicant wishes to pursue.

46    The applicant’s fifth interlocutory application was prompted by his receipt in December 2020 of an undated letter from the Attorney-General (the December Letter). By that Letter, the Attorney-General informed the applicant that he did not have the power “to remake or reconsider a surrender decision made under section 22 of [the Act]” and thereby implicitly rejected the applicant’s request that he do so.

47    As noted previously, the fifth interlocutory application seeks in effect a reopening of the hearing. By the 2PFAOA, the applicant seeks to revise some of his existing claims and to raise additional claims. The fifth interlocutory application also seeks other relief to which I will refer later.

48    The respondents opposed the grant of leave to reopen, the grant of leave to amend the application in the form of the 2PFAOA, and the grant of leave to the applicant to make further submissions.

49    I indicate now that I have decided that leave to reopen the hearing should be refused but will defer providing reasons for that conclusion until later. I do, however, note that the 2PFAOA, the fifth interlocutory application and the supporting affidavit named only the five original respondents and did so in the sequence in which they were named in the originating application filed on 4 August 2020. This seemed to amount to an implicit abandonment by the applicant of his attempt to bring in additional respondents and to alter the sequence in which the existing respondents are named.

Summary judgment – relevant principles

50    Section 31A of the FCA Act provides (relevantly):

31A Summary judgment

…

(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.

…

51    Rule 26.01(1) of the FCR permits the Court to order that judgment be given against another party in circumstances which are, in substance, the same as those contained in s 31A(2). It provides (relevantly):

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    …

52    The application of s 31A has now been discussed in a number of authorities, including Spencer v The Commonwealth of Australia [2010] HCA 28, (2010) 241 CLR 118 and Eliezer v University of Sydney [2015] FCA 1045, (2015) 239 FCR 381 which was approved in Kimber v Owners of Strata Plan No 48216 [2017] FCAFC 226, (2017) 258 FCR 575 at [62]. Given the basis of the respondents’ application in the present case, it is sufficient to note the following principles:

(a)    section 31A lowers the threshold applicable to applications for summary judgment which had been stated in authorities such as Dey v Victorian Railways Commissioners [1949] HCA 1, (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, (1964) 112 CLR 125 at [53];

(b)    as s 31A(3) makes plain, a proceeding need not be “hopeless” or “bound to fail” before it can be found to have no reasonable prospect of success;

(c)    nevertheless, a proceeding should not be terminated summarily unless there is a “high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”: see Spencer at [24] and [60]. This means that s 31A is to be applied with caution;

(d)    the Court is concerned with the substance of the matter and not with matters of form: Schumack v Commonwealth of Australia [2009] FCA 775 at [14]. It makes a practical judgment having regard to the circumstances of the particular case: Kimber at [62]. Amongst other things, this generally means that the Court is not concerned with mere pleading points; and

(e)    it is the party seeking summary judgment who has the onus of persuading the Court that the proceeding has no reasonable prospects of being prosecuted successfully: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641, (2013) 220 FCR 256 at [45]; Kimber at [62].

53    As already noted, the respondents rely principally on the principles of res judicata, Anshun estoppel and abuse of process. Plainly enough, claims which can be seen now to be the subject of those doctrines may be held to have no reasonable prospects of success for the purposes of s 31A of the FCA Act and r 26.01 of the FCR.

Res judicata: principles

54    The principle of res judicata operates to preclude a party from litigating in a second proceeding a cause of action which has merged into judgment in a prior proceeding: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 per Gibbs CJ, Mason and Aickin JJ at 597. Issue estoppel is a narrower principle which has the effect that once there has been a judicial determination of an issue, it is to be treated as final with the consequence that it cannot be raised again between the same parties or their privies.

55    The relationship between the doctrines of res judicata and issue estoppel was explained by Gibbs CJ, Mason and Aickin JJ in Anshun at 597:

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] HCA 23; (1939) 62 CLR 464, at p 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] HCA 22; (1950) 81 CLR 446, at p 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 (1939) 62 CLR 464, at p 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."

56    The cases have recognised some imprecision in the term “cause of action” as it is capable of referring to the facts which support a right to judgment, a right which has been infringed, or the substance of an action as distinct from its form – see Anshun per Brennan J at 610 and Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418. As was noted by Gummow J in Trawl Industries at 418, the focus is on the substance of the two proceedings as distinct from their form, so that it is pertinent to consider “whether the same sort of evidence would prove the plaintiff’s case in the two actions”, citing Brundsen v Humphrey (1884) 14 QBD 141 at 146.

57    Contrary to the apparent belief of the applicant, a claim for relief is subject to the doctrine of res judicata even if the relief be sought in the later proceedings on new or additional grounds or information. It is the cause of action which merges into the judgment.

Anshun estoppel: principles

58    An Anshun estoppel operates to preclude a person from raising a claim or issue in later litigation which, although not litigated in earlier litigation, was so closely connected with it that it was unreasonable for the party not to have raised it then.

59    The estoppel has its origins in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 in which Sir James Wigram VC said, at 319:

Where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.

60    This principle was applied in Anshun. Gibbs CJ, Mason and Aickin JJ held, at 602, that, in the context of that case, “there will be no estoppel unless it appeared that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”.

61    In Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 at [56], the plurality said of the Anshun estoppel:

An Anshun estoppel is not based upon degrees of similarity, which may be a matter of impression. It was made clear in Anshun that there could be no estoppel “unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it” …

(Emphasis in the original and citation omitted)

62    As was noted by Sloss J in Amcor Ltd v Barnes [2016] VSC 707 at [1593], the rationales for the Anshun estoppel include the avoidance of inconsistent judgments and multiplicity of proceedings, and the promotion of the efficient use of court resources and time.

63    In the determination of whether a matter is “so relevant” that it would have been “unreasonable” for it not to have been raised previously, the Court should not reason simplistically that because a matter could have been raised in the first proceeding, it should have been: Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33: (2010) 75 NSWLR 245 at [4]. Allsop P also noted that “the assessment is not to be made mechanistically, but rather there is a judgment to be made referrable to the proper conduct of modern litigation”.

64    The Anshun estoppel has been held applicable in judicial review proceedings: Kong v Minister for Immigration and Citizenship [2011] FCA 1345; (2011) 199 FCR 375 at [35]-[36] and see the authorities cited therein.

65    The inter-relationship between res judicata (cause of action estoppel), issue estoppel and Anshun estoppel was discussed by French CJ, Bell, Gageler and Keane JJ in Tomlinson v Ramsey Food Processing Ltd [2015] HCA 28; (2015) 256 CLR 507 at [22]:

Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that 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 third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

(Citations omitted)

Abuse of process: principles

66    The categories of abuse of process which may be encompassed by r 26.01(d) of the FCR are not closed. However, as noted by McHugh J in Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 286, “abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the Court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the Court’s procedures would bring the administration of justice into disrepute”. Earlier, at 256, Mason CJ noted that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other parties to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.

67    In the circumstances of this case, the respondents rely upon the circumstances stated by Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393, namely:

[P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and are oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock ... as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.

68    The respondents also referred to Tomlinson v Ramsey Food in which French CJ, Bell, Gageler and Keane JJ said:

[25]    Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

[26]    Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel …

(Citations omitted)

69    The Court exercises the power to dismiss proceedings as an abuse of process with caution.

Rule 26.01 – matters of approach

70    It is not necessary to elaborate on the expressions “frivolous” and “vexatious” appearing r 26.01(1) in any detail. It is sufficient to refer to Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 in which McKerracher J said:

[35]    The expressions ‘scandalous’, ‘vexatious’ and ‘frivolous’ can be used either separately, or in conjunction, or interchangeably, with the expression ‘abuse of process of the court’ …

[36]    A matter is ‘frivolous and vexatious’ where the ‘cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court’ …

[37]    In relation to the term ‘frivolous’:

(a)    a matter that is ‘frivolous’ may be described as one that is ‘without substance or groundless or fanciful’ …;

(b)    a proceeding will be ‘frivolous’ where, despite whatever attempts are made to discern a cause of action in the case, it is still not arguable …; and

(c)    ‘frivolous’ may also describe a situation where a party is trifling with the Court or wasting the Court’s time …

[38]    In relation to the term ‘vexatious’:

(a)    a ‘vexatious’ proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. ‘Vexatious’ might also describe proceedings that are seriously and unfairly burdensome, prejudicial or damaging …;

(b)    proceedings may also be described as ‘vexatious’ where they impose on a respondent party an unnecessary injustice in the form of a burden other than, and additional to, the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy …;

(c)    a proceeding is to be regarded as ‘vexatious’ where:

(i)    it is instituted with the intention of annoying or embarrassing the person against whom the proceeding is brought; or

(ii)    it is brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which it gives rise; or

(iii)    irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless …; and

(d)    ‘vexatiousness’ is a quality of the proceeding rather than a litigant’s intention, so that the question is not whether the proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious …

(Citations omitted)

The first and second respondents’ submissions

71    The submissions which I summarise below were those made at the hearing on 30 September 2020. I will defer for the time being consideration of the parties’ submissions on the application of the applicant to reopen.

72    The respondents submitted, first, that the applicant’s challenge to the lawfulness of his detention is foreclosed by the judgments in Matson Full Court and in Matson 2016. That is because:

(a)    the applicant’s challenge to the validity of the decision made by Minister Keenan under s 16 to issue a notice of acknowledgement of receipt of the extradition request by the USA was part of the subject matter of the s 39B application in Action QUD569/2016 which had been rejected in Matson Full Court, at [80]-[102];

(b)    the applicant had challenged the decision of Magistrate Cosgrove made under s 19 of the Act that he was eligible for surrender to the USA in Action QUD89/2016 by disputing that the eligibility criteria contained in s 19(2) had been satisfied. For this purpose the applicant had raised alleged deficiencies in the documents supporting the extradition request. Justice Rangiah rejected that challenge in Matson 2016 and the applicant’s appeal against Matson 2016 had been dismissed in Matson Full Court; and

(c)    likewise, the applicant’s challenge to the issue by Magistrate Morrison of the warrant for his arrest under s 12 of the Act had been determined in Matson Full Court.

73    Next, the respondents submitted that the application for the issue of a writ of habeas corpus and an order for the applicant’s release from custody could be seen now to have no reasonable prospects of success. That is because the applicant is being held in custody pursuant to the order of Magistrate Cosgrove of 15 January 2016, made pursuant to s 19 of the Act. So long as the order made by Magistrate Cosgrove under s 19(9) of the Act stands, there is no basis for habeas corpus or for the challenge to lawfulness of the applicant’s detention: Rahardja v The Governor, Long Bay Gaol [2002] NSWSC 1253 at [8] and Marku v Minister for Justice [2015] FCA 831; (2015) 237 FCR 580 at [37]. The respondents also submitted that the matters concerning the lawfulness of his detention are so closely connected with the issues agitated before the Full Court culminating in Matson Full Court, that the applicant should not be permitted to agitate them in these proceedings.

74    The respondents submitted that the applicant’s challenges to the lawfulness of his surrender to the USA (the challenges to the decisions under ss 22 and 23 of the Act) are the subject of Action QUD107/2020 on which, at the time of hearing on 30 September 2020, Rangiah J had reserved judgment. They contended, in effect, that the applicant should not be permitted to agitate the same issues before two different Judges.

75    In relation to the applicant’s claims of contraventions of the ICCPR and the breach of the asserted constitutional right to freedom from cruel or inhuman punishment, the respondents submitted that these matters had been agitated before Rangiah J in Action QUD107/2020 and, in any event, had no reasonable prospect of success. With respect to the latter objection, counsel noted that the ICCPR, like any other treaty, does not, without more, become part of Australian domestic law: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-7; Tajjour v New South Wales [2014] HCA 35, (2014) 254 CLR 508 at [96]. Counsel also submitted that the surrender of the applicant to the USA would not amount to “punishment” in a constitutional sense, referring to Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614 at [34] (Gleeson CJ), at [105], [115] (Gummow and Hayne JJ).

76    Counsel also referred to other indicia which he contended were inconsistent with the kind of implied constitutional prohibitions for which the applicant contends.

77    Next, the respondents submitted that the applicant’s attempt in the Proposed FAOA to invoke the protection of freedom of religion contained in s 116 of the Constitution should be seen now as having no reasonable prospects of success. Counsel referred to Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 in which Brennan CJ said, at 40:

To attract invalidity under s 116, a law must have the purpose of achieving an object which s 116 forbids.

See also Gummow J at 160. Although Toohey and Gaudron JJ were in dissent in Kruger, it is evident that their Honours considered that, in order for a law of the Commonwealth to infringe s 116, it must have as at least one of its purposes the prevention of free exercise of religion (at 86 and 133).

78    Counsel submitted that, on any reasonable view of the Act, it could not be regarded as having a purpose prohibited by s 116. I indicate now my acceptance of this submission.

79    The respondents’ final submission was directed to Proposed Order 7 in the Proposed FAOA, namely, the claim that the Treaty and the Act itself are invalid “under the Constitution”. The first three particulars which the applicant gave in support of that claim are that the “current form and practice” of the Treaty and the Act contravene implied constitutional rights, are inconsistent with fundamental human rights under the ICCPR, and are not for the peace, order or good government of the Commonwealth with respect to the “external affairs power” contained in s 51(xxix) of the Constitution. The fourth is that both the Treaty and the Act are invalid as they infringe the “religious freedom” of Indigenous Australians for which s 116 of the Constitution provides by failing to recognise their “special connection” with Australia. Counsel submitted that this claim should be seen now as being untenable and made the following points:

(a)    the validity of the Act does not depend upon the validity of the Treaty: Horta v Commonwealth of Australia [1994] HCA 32; (1994) 181 CLR 183;

(b)    the assertion that the Act is not authorised by s 51(xxix) of the Constitution cannot be sustained having regard to Vasiljkovic at [36] (Gleeson CJ), [87]-[88] (Gummow and Hayne JJ); and

(c)    the remaining matters on which the applicant relies are untenable for the reasons put forward in the respondents’ earlier submissions.

The applicant’s submissions

80    The applicant commenced on 30 September 2020 with submissions that:

(i)    he should be granted leave to file and serve the Proposed FAOA (this submission was initially directed to the proposed AOA, but I understood it to be pressed in relation to the later filed Proposed FAOA);

(ii)    the Court should not determine the summary judgment/strike out application before determining whether or not the applicant should have leave to amend the Originating Application; and

(iii)    the Court should not determine the summary judgment/strike out application until all of the seven respondents named in the Proposed FAOA have been served with the proceedings.

81    The applicant framed the second and third of these matters as issues going to the Court’s power. As the Court plainly has the power to take each of these steps, I took the applicant to be raising matters going to the exercise the Court’s discretion. Account will be taken of them in relation to the other issues raised by the interlocutory applications.

82    The second matter raised by the applicant was that the respondents should not be permitted to rely on res judicata and Anshun estoppel because they had failed to “plead” these matters properly in their interlocutory application. The applicant is correct in submitting that the respondents’ interlocutory application of 11 September 2020 does not refer expressly to the doctrines of res judicata and Anshun estoppel. However, the respondents’ reliance on these doctrines was first foreshadowed at the case management hearing (CMH) on 2 September 2020 (the applicant was not present at that CMH but the Court organised a copy of the transcript of that hearing to be provided to him). Moreover, the respondents’ reliance on these doctrines was stated in the affidavit which accompanied the interlocutory application of 11 September 2020 and was confirmed in the respondents’ outline of submissions filed the same day.

83    The critical matter is not whether these doctrines had been “pleaded” properly as the respondents’ interlocutory application is not a pleading. The issue instead is whether the applicant had been on sufficient notice of the respondents’ reliance of them. It is plain that, by reason of the matters just mentioned, the applicant had had such notice. He did not claim that he had not been able to prepare adequately for the hearing on the basis that res judicata and Anshun estoppel would be in issue. On the contrary, he made a detailed submission by way of response.

84    I also note the incongruity in the applicant taking a “pleading point” against the respondents in the circumstance that he had provided the respondents with his Proposed FAOA only late on the day immediately preceding the hearing of the interlocutory applications.

85    Accordingly, I conclude now that there is no merit in the applicant’s “pleading” point.

86    The applicant’s principal submissions by way of resistance to the summary judgment/strike out application were first that there is a prima facie case of “third party fraud”, “collusion” and “executive lawlessness” on the part of senior Departmental officers at AGD and on the part of officials of the USA which affected the decisions of Ministers Keenan and Hunt, Magistrates Morrison and Cosgrove and Rangiah J. He then contends that “the entire extradition process has been tainted by the collusion and lawless conduct of both the USA and Commonwealth government officials, that the “third party fraud”, “collusion” and “executive lawlessness” on the part of the USA and Commonwealth government officials had “both subverted and stultified” all stages and decisions made under the Act throughout the extradition process with much of the evidence coming to light only recently. I will refer to this submission as the “Decision Invalidity Ground”.

87    In support of these submissions, the applicant referred to the strict view which the courts take of fraud, in particular, fraud affecting administrative decisions. He referred to the statement of Denning LJ in Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-3:

No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to fund fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever …

88    The applicant also referred to SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, (2007) 232 CLR 189 at [11]-[22] (specifically at [15]) and to SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158, (2013) 308 ALR 266 at [41]. He noted the conclusion of the High Court in SZFDE that the “fraud” of a rogue which had resulted in the applicants not attending a hearing before the Refugee Review Tribunal had the effect that the decision made by the Tribunal should be regarded in law as no decision at all, at [52], and by implication, contended for a similar view of the relevant decisions in this case. The applicant also noted the Court’s statement, at [38], that the assessment of the existence of fraud could take account of any relevant material before the Court.

89    Secondly, the applicant relied for several of his claims in these proceedings on the circumstances created by the COVID-19 pandemic, describing the pandemic as being “front and centre” of each of his grounds. He submitted:

[I]t’s my submission, your Honour, that, for example, with Order 1, the declaration, that any surrender to the United States would be unlawful. If we refer to particulars there’s three grounds that are outlined and they are due to the ongoing escalation of COVID-19 and the unacceptably high risk to health and well-being of the applicant, that by exposing the applicant [to] COVID-19 that would be in breach of fundamental human rights, including under Article 7, Protection from Cruel and Unusual Punishment, and by exposing the applicant to COVID-19 that could potentially separate him permanently from his community, culture and country. Now, your Honour, no court has had that, those matters, agitated before them and it’s my submission that therefore the doctrines of Anshun estoppel, res judicata and abuse of process simply don’t apply.

90    Although the applicant did not express it this way, the submission seemed to be that, even if the s 22 Decision and the issue of the Surrender Warrant were valid at the time they were made, the execution of the Surrender Warrant in the circumstances of the COVID-19 pandemic would be unlawful.

91    Next, the applicant submitted that Anshun estoppel does not operate in an absolute way as it recognises that there may be circumstances in which a party may be permitted to agitate an issue in later proceedings even though one may have expected, ordinarily, that issue to have been agitated in the earlier proceedings. He referred to Anshun at 602-3 in which Gibbs CJ, Mason and Aickin JJ said:

In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings, e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.

See also Timbercorp Finance Pty Ltd (in liq) v Collins [2016] VSCA 128 at [207] which was affirmed by the High Court in Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212.

Consideration of the first and second respondents’ application

92    It is plain that some of the issues which the applicant wishes to agitate in these proceedings have been agitated in his previous proceedings and have been the subject of decisions of this Court. This includes the Decision Invalidity Ground.

Proposed Order 6 – the validity of the previous extradition decisions

93    It is convenient to consider first the various claims which the applicant makes to support Proposed Order 6. There were minor differences in the drafting of some of the particulars to Proposed Order 6 in the Proposed FAOA, compared with the originating application when filed, but in the view I take of the matter, it is not necessary to note them presently.

Review of the s 16 decision

94    The applicant seeks to impugn the s 16 Decision as part of Proposed Order 6 (and relies on the same particulars in Proposed Orders 2, 3 and 4). He had impugned unsuccessfully the validity of that decision in the judicial review proceedings Action QUD569/2016 determined in Matson Full Court. It is true that the Full Court rejected the applicant’s claim by reference to his claim that there was a “compelling case” of abuse of process or fraud on the extradition power “by reason of egregious delay on the part of the prosecution authorities, a lack of candour or obfuscation in explaining that delay and prejudice to Mr Matson flowing from that delay”, at [81]. See also [89]-[90] of the reasons of the Full Court set out earlier in these reasons.

95    However, the applicant’s amended application for judicial review in Action QUD569/2016 had impugned the validity of the s 16 Decision on multiple grounds (23 in all). These included grounds alleging lawless conduct, denial of natural justice, bad faith and lack of good faith, non-disclosure of relevant documents, legal unreasonableness, irrationality, acting under dictation, bias, infringement of implied Constitutional rights, deliberate delay, errors of law, improper purpose, abuse of process, and failure to have regard to Australia’s obligations under international treaties (including the ICCPR and the Universal Declaration of Human Rights). At the hearing before the Full Court, the applicant (then represented by senior counsel) did not pursue all those grounds, relying instead on the alleged “egregious delay” and “lack of candour or obfuscation”.

96    An orthodox application of the principles of res judicata precludes the applicant from agitating the claim that the s 16 Decision was invalid for a second time. That is so even though some of the grounds in the Proposed FAOA and in the originating application as filed on 4 August 2020 are different from those contained in the amended application in Action QUD569/2016. The cause of action has merged into the judgment of the Full Court. It would moreover be oppressive for the respondents to be vexed with it again, it not being material that the respondents to the present application differ in some respects from the respondents to Action QUD569/2016.

Review of the s 19 decision

97    The respondents are correct in submitting that there has been a judicial determination of the applicant’s challenge to the decision of Magistrate Cosgrove under s 19 of the Act that he was eligible for surrender to the USA. That challenge was rejected by Rangiah J in Matson 2016 and the appeal against that decision was dismissed in Matson Full Court. The doctrine of res judicata applies also to those decisions and precludes the applicant seeking to agitate the same matters in relation to Proposed Order 6. To the extent that Proposed Orders 2, 3 and 4 raise the same issues, they too are precluded by the principles of res judicata.

Review of the s 12 decision

98    The applicant is correct in contending that neither of the decisions in Matson 2016 nor Matson Full Court addressed the validity of the decision of Magistrate Morrison under s 12 to issue the warrant for his arrest. But that is because the applicant expressly abandoned his challenge to the decision of Magistrate Morrison – see page 2 of the transcript before the Full Court and [3] of the Outline of Submissions of the respondents filed on 23 May 2017.

99    Moreover, the applicant’s challenge to the decision of Magistrate Cosgrove under s 19 did not raise any challenge to the anterior decision of Magistrate Morrison under s 12 to issue a warrant for his arrest, or to the arrest itself. On the contrary, the applicant had accepted that he was a person on remand so as to satisfy the requirements of s 19(1)(a). Rangiah J had noted the absence of any issue about this circumstance in Matson 2016, at [15].

100    Accordingly, it should be held that an Anshun estoppel precludes the applicant from now raising any issue about the action taken under s 12. Alternatively, his attempt to pursue such a claim now is an abuse of the Court’s process. That is so despite the difference in the identity of the respondents.

Review of the s 22 Decision and the issue of the surrender warrant

101    It is plain that Action QUD107/2019 involved a challenge by the applicant to the s 22 Decision and to the issue of the Surrender Warrant. To indicate why that is so, it is necessary to say a little more about those proceedings.

102    As noted earlier, on 11 February 2019, the applicant commenced Action QUD107/2019 seeking judicial review of the s 22 Decision and of the issue of the Surrender Warrant. The sole respondent to that proceeding was the Commonwealth of Australia. The application showed on its face that it had been prepared by the applicant’s then senior counsel, Mr Morris QC, who continued to represent the applicant until shortly after the commencement of the substantive hearing of the application on 18 November 2019.

103    In the originating application in Action QUD107/2019 as filed, the applicant sought the following substantive relief under s 39B of the Judiciary Act:

1.    A Writ of Prohibition to quash, and to prohibit further enforcement of, the decisions made on 1 February 2019 by the Honourable Greg Hunt MP, as acting Attorney-General of the Commonwealth:

(a)    that the Applicant be surrendered to [the USA] in purported pursuance of section 22 of [the Act]; and

(b)    to issue a warrant for the Applicant’s surrender in purported pursuance of section 23 of [the Act].

2.    An injunction to restrain the Attorney-General of the Commonwealth from:

(a)    giving effect to the said decision; or

(b)    making or purporting to make further decisions to like effect otherwise than in accordance with sections 22 and 23 of [the Act].

(Emphasis added)

104    The attached grounds indicated that the applicant asserted that the s 22 Decision was invalid because it had not been made as soon as reasonably practicable after the applicant became “an eligible person” for the purposes of s 22, and was not made, or not made exclusively, in relation to a “qualifying extradition offence” or “qualifying extradition offences”.

105    By 21 October 2019, the applicant had foreshadowed seeking leave to amend the originating application in Action QUD107/2019. On that day, Rangiah J made an order that the proposed amended application be filed by 28 October 2019 and directed that, in the absence of a proposed amended application being filed, the matter would proceed to hearing on 18 November 2019 on the basis of the originating application filed on 11 February 2019.

106    The applicant did not comply with the order of 21 October 2019. He did, however, file a document entitled “Amended originating application for relief under section 39B of the Judiciary Act 1903 (Cth)” on 7 November 2019 (the Draft Amended Originating Application). This document had been prepared by the applicant himself and sought to expand significantly the relief which had been sought in the originating application, by claiming:

1.    An order in the nature of certiorari quashing the Respondent's decision to surrender the Applicant to the US, made on 1 February 2019 under s 22 of the Extradition Act 1988 (Cth) (Surrender Decision).

2.    An order in the nature of injunction preventing the Respondent from making any further decision or taking any further action in relation to the Surrender Decision.

3.    An order in the nature of prohibition preventing the Respondent from executing the surrender warrant issued in relation to the Applicant under s 23 of the Extradition Act 1988 (Cth) on 1 February 2019 (Surrender Warrant).

4.    An order in the nature of a declaration that the Surrender Decision made by the Respondent and the Surrender Warrant are invalid and of no effect.

5.    An order in the nature of a declaration that the Surrender Decision was not authorised by the Extradition Act 1988 (Cth).

6.    An order in the nature of a declaration that the Surrender Decision was unlawful and violates the Applicant's fundamental human rights under the ICCPR, the ICERD, the UDHR and the CAT, and further violates the Applicant's constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment under the Constitution.

7.    An order in the nature of a declaration that the Respondent is required to direct the Applicant's release.

8.    An order in the nature of a declaration that the warrant of imprisonment issued under s 19(9) of the Extradition Act 1988 (Cth) in relation to the Applicant be permanently stayed.

9.    An order in the nature of a declaration that the Applicant's present and ongoing detention since 26 October 2015 is unlawful and violates the Applicant's fundamental human rights under the ICCPR, the ICERD, the UDHR and the CAT and violates the Applicant's constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment under the Constitution.

10.    An order in the nature of a declaration that Part II of the Extradition Act I 988 (Cth) and the Extradition (United States of America) Regulations are invalid under the Constitution.

11.    Costs.

(Emphasis added)

107    As is apparent, these claims put in issue the validity of the s 22 Decision and the issue of the Surrender Warrant, the validity of the applicant’s continued detention having regard to the asserted constitutional implied rights, and the validity of the Act and the Regulations made under it (the Regulations). The applicant also sought to restrain action being taken to execute the Surrender Warrant. The grounds in the Draft Amended Originating Application relied upon to support the extended claims to relief extended over some 33 pages.

108    The judgment in Action QUD107/2019 (Matson 2020) is substantial and addressed the various claims of the applicant contained in the Draft Amended Originating Application.

109    The applicant has commenced an appeal against Matson 2020. He submitted that this circumstance meant that the judgment in Matson 2020 could have no bearing on the outcome of the present applications. I do not accept that submission. The orders of the Court are valid until set aside: New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 at [32] and see the authorities cited therein. The mere filing of an appeal against the Court’s orders does not mean that the orders, and the reasons supporting them, are of no consequence. The judgment stands and is not to be regarded as provisional or subject to confirmation on appeal.

110    One of the central issues raised by the Draft Amended Originating Application and addressed in Matson 2020 was the applicant’s claim that the s 22 Decision made on 1 February 2019 be quashed and the Attorney-General be prohibited from giving effect to that decision – see [21]. Rangiah J identified, at [85], the overarching grounds on which the applicant impugned the s 22 Decision as:

A.    The procedures that were required by law to be observed in connection with the making of the Surrender Decision and issuing of the Surrender Warrant were not observed;

B.    That the Surrender Decision and issuing of the Surrender Warrant were not authorised by the enactment in pursuance of which they were purported to be made;

C.    That the Surrender Decision and issuing of the Surrender Warrant involved an error of law; and

D.    That the Surrender Decision and issuing of the Surrender Warrant were otherwise contrary to law.

111    These principal grounds were supported by no less than 60 particulars, each of which was in effect a separate claim of jurisdictional error. They are too numerous to summarise easily but included allegations that the s 22 Decision was affected by jurisdictional error by reason of delay, failure to address substantial clearly articulated arguments, denials of procedural fairness, bad faith, improper purpose, actual and apprehended bias, unreasonableness, illogicality and irrationality, failure to have regard to relevant considerations (including the applicant’s Aboriginality), the prospect of the applicant being exposed to cruel and unusual punishment in violation of his rights under international treaties and the Constitution, contraventions of Australia’s non-refoulement obligations, misconstruction of the statutory language, abuse of process, discrimination and the invalidity of the Act and the Extradition (United State of America) Regulations 1988 (Cth) (the Regulations) Sch 1 made under the Act.

112    Rangiah J considered these grounds in some detail and rejected each. Nevertheless his Honour granted the applicant leave to file the Amended Originating Application subject to the deletion of seven particulars (being Particulars (k), (l), (m), (n), (bb), (dd) and (rr)) which his Honour considered were “without merit” or as not having been proved, at [295]-[296].

113    In these circumstances, there is no difficulty in accepting the respondents’ submission that the applicant is seeking to re-agitate in this proceeding the validity of the s 22 Decision and the issue of the Surrender Warrant. This is vexatious and oppressive, and an abuse of the Court’s process. Since the delivery of Matson 2020, it also means that the doctrine of res judicata is applicable. Differences in the grounds on which the applicant now seeks to challenge the decision are immaterial. I also note that the applicant’s claims with respect to “withheld documents” including his FOI requests FOI18/023 and FOI18/082, occupied a not insignificant portion of Matson 2020 – see [188] which extends over nine pages.

Proposed Order 6 in the 2PFAOA

114    It is convenient to advert presently to the particulars supporting Proposed Order 6 in the 2PFAOA. The expression of these particulars in the earlier iterations of the originating application were revised in some respects in the 2PFAOA, including by the addition and removal of some particulars and the relocation of some particulars into a new subpara (g). They do not require separate consideration. I note also that none of the revisions appear to have anything to do with the Attorney-General’s decision communicated in the December Letter.

Conclusion on Proposed Order 6

115    For these reasons, the whole of the claim for Proposed Order 6 should be struck out, in the application of the principles of res judicata, Anshun estoppel and abuse of process. As will be seen, this also affects the applicant’s reliance on the particulars to Proposed Order 6 in support of other claims of relief.

Proposed Order 1 - the surrender of the applicant to the USA

116    As already noted, by this Order the applicant seeks a declaration that any attempt by the Commonwealth to surrender him to the USA pursuant to the Surrender Warrant would be unlawful, in breach of his fundamental rights under the ICCPR and in breach of his “Constitutional implied rights to due process, equality before the law, fairness and protection from cruel and unusual punishment derived from the Constitution”. The applicant relies for this claim on the circumstances of the COVID-19 pandemic, contending that his extradition would pose an unacceptably high risk to his health and well-being.

117    In the FAOA, the applicant adds a further basis for his claim to this declaration, namely, that any such surrender would be in breach of his “Constitutional implied right under section 116 of the Constitution to live and die in Australia together with his ancestral spirits, as First Nations people have done … for over 60,000 years”. He supports this part of the claim by contending:

By exposing the applicant to COVID-19 and a potential 305 year prison sentence (which would permanently separate him from his family, community, culture and country, and deny him his “special connection” to Australia) the Commonwealth Government would be breaching the applicant’s Constitutional implied rights to due process, equality before the law, fairness and protection from cruel and unusual punishment derived from the Constitution.

118    As is apparent, the applicant asserts three implied constitutional rights.

The COVID-19 pandemic

119    While there was no evidence in the hearing of the four interlocutory applications on 30 September 2020 about the nature and circumstances of the COVID-19 pandemic, knowledge about it and its effects is notorious. Rangiah J made findings about aspects of the pandemic in Palmer v State of Western Australia (No 4) [2020] FCA 1221. I proceed on the basis that COVID-19 is highly infectious and capable of causing serious respiratory illness and death. It had a rapid onset and spread across the globe from early 2020. It is well known that the virus (for which vaccines are still being developed and/or distributed) constitutes a major threat to human health on a global scale. In Australia, it is the subject of the Biosecurity (Human Biosecurity Emergency) Human Coronavirus with Pandemic Potential Declaration 2020 (Cth) made by the Governor-General on 18 March 2020, and has been the subject of Declarations and Directions by each of the States and Territories. One of the steps taken by many countries is the restriction of movement of persons in and out of their countries, with a view to limiting the opportunities for the spreading of the virus.

120    It is not reasonably arguable that the COVID-19 pandemic could have the effect of rendering invalid any of the steps in relation to the applicant’s extradition taken before its onset. That is to say, it could not have had the effect of rendering invalid the steps taken in 2015, 2016 and 2019 in relation to the applicant’s extradition, before the pandemic had even arisen. However, the applicant sought to rely on it as a changed circumstance which would make the enforcement of the Surrender Warrant unlawful.

The applicant’s previous reliance on the pandemic

121    Such is the notoriety of the pandemic, the risks to health which it imposes and of the actions taken by governments in Australia to prevent its spread that the applicant can be taken to have been aware of them since March-April 2020. In fact, as the reasons which follow indicate, from time to time in Action QUD107/2019, he sought to rely on those very matters.

122    At the hearing on 25 June 2020, Mr Burnside QC sought to mitigate the prospect of delay resulting from the applicant’s application for an order for discovery by saying:

Even in the event that there is ultimately an order for Mr Matson to be sent to America, the question is whether, with the COVID-19 problem at the moment it is going to be possible for him to leave Australia right now. It may be that the delays associated with proper discovery being given raises the real question of whether or not it’s possible for a person to leave Australia at present given the circumstances here and in America”.

123    One of the grounds on which the applicant relied in support of the interlocutory application filed on 5 August 2020 seeking a stay of further consideration of Action QUD107/2019 (as recorded in Matson 2020 at [432]) was:

COVID-19 is rampant in the USA, so that Mr Matson’s surrender would be prima facie unlawful, in breach of fundamental human rights and would violate the constitutional implied right to protection from cruel and usual punishment.

124    At the hearing before Rangiah J on 28 August 2020, the applicant sought an adjournment for reasons which included his wish to receive a response from the Attorney-General to a letter of 11 August 2020 requesting that the surrender decision be reconsidered in light of the COVID-19 pandemic in the USA. His submissions included:

[I]n the circumstances of the COVID-19 pandemic where any surrender would be inconsistent with fundamental human rights and our constitutional implied right to protection from cruel and unusual punishment which, if I was to be surrendered to the US in these circumstances where there is such a high prevalence of COVID-19 in the US, that would contravene that implied constitutional right.

125    Thus, it is evident that, at least by 25 June 2020 and continuing to 28 August 2020, the applicant was seeking to deploy the circumstances created by the COVID-19 pandemic in Action QUD107/209. By 5 August 2020, he was articulating in Action QUD107/2019, claims concerning COVID-19 which are very similar to those he wishes to articulate in these proceedings. That may not be coincidence as the present proceedings were filed on 4 August 2020.

The applicant’s previous reliance on the ICCPR

126    The applicant relies on Art 7 of the ICCPR which provides relevantly:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

127    Assertions of unlawfulness by reason of non-compliance with Art 7 of the ICCPR were a significant part of the applicant’s claims for judicial review in Action QUD107/2019. In Matson 2020, Rangiah J addressed the effect of Art 7 in the ICCPR in relation to the contention of the applicant that the s 22 Decision and the issue of the Surrender Warrant were affected by jurisdictional error because:

(i)    “the decision was tainted by a “failure to accord natural justice” on the basis that the Acting Attorney-General overlooked as substantial clearly articulated argument relying upon established facts, namely the applicant’s argument that there was the potential of “torture, cruel and unusual punishment” in violation of the Applicant’s fundamental human rights protected under Article 7 of the [ICCPR] which was clearly raised in the Applicant’s affidavit filed in QUD 89/2016 as raised in the Applicant’s further amended originating application filed in QUD 569/2016” (emphasis in the original) (Matson 2020 at [85(d)]);

(ii)    “the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) erred when assessing the consequences and likely hardship faced by the Applicant including the “relative risk” of the Applicant receiving a custodial sentence in the US that was grossly disproportionate, amounting to cruel and unusual punishment in violation of the Applicant’s fundamental human rights under Article 7 of the ICCPR and in violation of the Applicant’s constitutional implied right to be protected from cruel and unusual punishment under the Constitution” (emphasis in the original) (Matson 2020 at [85(jj)]);

(iii)    “the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) constructively failed to exercise jurisdiction by failing to take account of relevant/mandatory considerations …” including “implied mandatory considerations derived from the scope, subject matter and purpose of the Extradition Act 1988 (Cth), including Australia’s non-refoulment obligations under the ICCPR and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) which the Respondent was ‘bound’ to consider in circumstances where the Applicant had specifically raised evidence, arguments and contentions of torture, cruel and unusual punishment under Article 7 of the ICCPR on the basis of the potential 305 years prison sentence in the US, and the likelihood of “solitary confinement” in the US which has been found to constitute “torture” and “cruel and unusual punishment” in the US” (emphasis in the original) (Matson 2020 at [85(kk)(v)]);

(iv)    the Acting Attorney-General’s decision was affected by irrationality and illogicality by reason of his failure to consider and give weight to Australia’s non-refoulment obligations under the ICCPR and the CAT in “circumstances in which the Applicant had specifically raised evidence, arguments and contentions of torture, cruel and unusual punishment under Article 7 of the ICCPR and the CAT” (Matson 2020 at [85(nn)(vi)]);

(v)    “the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) violated the Applicant’s constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years …”, again denying the applicant his “constitutional implied rights, and fundamental human rights protected under Article 14 of the [ICCPR]” (Matson 2020 at [85(rr)(x)]); and

(vi)    the Acting Attorney-General had erred in the exercise of discretion under s 22 in failing to observe the international obligations of Australia as a member of the United Nations and under numerous international treaties including the ICCPR (Matson 2020 at [85(ss)]).

128    In addition to these specific matters, there were other aspects of the applicant’s claims considered in Matson 2020 which relied on the ICCPR. However, the above are sufficient to indicate that the applicant agitated the effect of the ICCPR, and in particular Art 7 in the judicial review grounds in Action QUD107/2019.

129    In Matson 2020, Rangiah J rejected these claims of the applicant. It is not necessary for present purposes to record his Honour’s reasons for each rejection. In relation to the claim that the Attorney-General had erred in failing to observe Australia’s international obligations, his Honour said:

[333]    Ground (ss) alleges that the Surrender Decision was affected by jurisdictional error on the basis that the Attorney-General, “failed to observe the Commonwealth of Australia’s international obligations as a United Nations member and under international treaties Australia has ratified, and the “legitimate influence” they have on Australia’s common law and on Australia’s modern interpretation of the Constitution”.

[334]    There is no express requirement under s 22 of the Extradition Act to consider Australia’s “international obligations”. However, a number of provisions in the Extradition Act are designed to implement Australia’s international obligations.

[335]    Section 22(3)(b) of the Extradition Act implements Australia’s non-refoulement obligations with respect to torture under the CAT. As discussed in relation to Ground (nn)(vi), the Departmental Advice which formed the Attorney-General’s reasons specifically addressed Australia’s obligations under the CAT.

[336]    Section 22(3)(f) provides the Attorney-General with a discretion as to whether a person should be surrendered. A number of international obligations were raised by Mr Matson and addressed in the Departmental Advice in respect of the discretion. These included Arts 2, 7, 9, 14 and 26 of the ICCPR. As discussed in relation to Ground (nn)(iv), the Departmental Advice addressed the rights protected under the ICCPR, and concluded that they would not be breached by the surrender of Mr Matson. Therefore, the Attorney-General considered Australia’s international obligations. While Mr Matson raised a number of other international instruments in Ground (ss), the Attorney-General was otherwise not required under s 22 of the Extradition Act to consider them. Ground (ss) has not been established.

130    It is appropriate to note that the applicant is not seeking to re-agitate the judicial review grounds in these proceedings. However, his reliance in Action QUD107/2019 on the circumstances of the COVID-19 pandemic and on the ICCPR supports the conclusion that the proper place for the claims based on COVID-19 to have been agitated was in that Action, and not in separate proceedings. That was so because, as already noted, the relief which the applicant sought in Action QUD107/2019 included orders preventing the Commonwealth from taking any further action in relation to the s 22 Decision and in particular, from executing the Surrender Warrant. The applicant seeks the same relief by Proposed Order 1 and, in effect, in Proposed Orders 2 and 3 in the Proposed FAOA. The grounds upon which he seeks that relief are closely connected to his challenge to the validity of the Surrender Warrant and to the claims which he made in Action QUD107/2019. The closeness of the connection suggests that it was unreasonable for the applicant not to have sought to pursue his present claims in Action QUD107/2019.

131    True it is that this would have involved the applicant seeking leave to re-open the hearing so as to apply to amend still further his originating application, to adduce further evidence and to make further submissions concerning the effect of the pandemic. However, the making of such an application should not have been difficult for the applicant: as indicated above, he did make several interlocutory applications, including three applications to reopen the proceedings – see Matson 2020 at [81]. Moreover, he had at one stage during the period of the COVID-19 pandemic been represented by senior and junior counsel and could have enlisted their assistance in making the application. As noted, Mr Burnside QC had sought in his submissions to rely on the circumstances of the pandemic. I also note that, in relation to the applications to reopen the case which the applicant did make, Rangiah J accepted that the nature of the proceeding, being one in which the liberty of the applicant was at stake, favoured a liberal approach in the exercise of the discretion to allow reopening, at [398]. It can be inferred that his Honour would have approached an application to reopen so that the circumstances created by the COVID-19 pandemic could be considered in the same way.

132    In my view, the claims which the applicant now makes in reliance on the COVID-19 pandemic are claims to which an Anshun estoppel applies. As I have noted, the applicant had made the execution of the Surrender Warrant an issue in Action QUD107/2019; he had relied on the COVID-19 pandemic for some purposes in that litigation; his reliance on the COVID-19 pandemic is part of the basis upon which he seeks now to avoid the execution of the warrant; the relief which the applicant now seeks is inconsistent with the dismissal of his application for like relief in Action QUD107/2019; and it should be held that his present claim is so relevant to the subject matter of Action QUD107/2019, that it was unreasonable for the applicant not to have relied on the matter in those proceedings. There has to be an end to litigation. Claims or grounds for claims are not to be “saved up” for later litigation in which the same relief is sought. It is unreasonable for the applicant to seek to pursue in successive proceedings different bases for the same substantive relief.

133    Even if an Anshun estoppel not be applicable, it is an abuse of process for the applicant to pursue in successive proceedings claims for the same substantive relief.

134    If the applicant is concerned about the time which has elapsed since the Surrender Warrant was first issued, he can seek to invoke the remedy for which the Act itself provides – see s 26(5) and (6). That is not to offer any encouragement to such a course, as the applicant acknowledged that, had it not been for his pursuit of the legal proceedings in which he had been unsuccessful, his extradition may “have been actioned some time ago”.

ICCPR not part of the law of Australia

135    Independently of these considerations, the respondents are correct in submitting that, while Australia is a signatory to the ICCPR, it has not been enacted so as to become part of Australian domestic law: see Teoh and Tajjour to which reference was made earlier. Accordingly, any non-compliance with the ICCPR could not, by itself, make the applicant’s extradition unlawful.

The asserted implied constitutional rights

136    The applicant also faces difficulties in his assertion of constitutional implied rights.

137    In addition to alleging breaches of the ICCPR in Action QUD107/2019, the applicant had alleged breaches of “constitutional implied rights”. As summarised in Matson 2020 (and relevantly for present purposes) he alleged:

[oo]    The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of [the Act] infringed the constitutional implied rights of the Applicant protected under the Constitution, including the Applicant’s constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment. See: Sillery v The Queen (1981) 180 CLR 353 …

…

[tt]    The Surrender Decision was affected and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of [the Act] amounted to “impermissible discrimination”, failing to treat like persons in a like manner, and also failing to give a proper account to genuine differences in the circumstances of the US Government’s extradition request in comparison to every other extradition request from [the USA] since [the Act] came into force. Particularly the Indigenous heritage of the Applicant, which violated the Applicant’s constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment protected under the Constitution.

(Emphasis in the original)

138    The reference in subpara [oo] to Sillery v The Queen [1981] HCA 34; (1981) 180 CLR 353 was presumably a reference to the separate judgment of Murphy J at 362. There, his Honour expressed, by way of dicta, the view that “[a] power to legislate for infliction of cruel and unusual punishment should not be implied into the legislative powers expressed in the Australian Constitution” and that “[i]n the light of our constitutional history any law which requires or authorises infliction of cruel and unusual punishment should be regarded as transcending the limits of the power expressed in the words “peace, order, and good government”.

139    In Matson 2020, Rangiah J rejected claims of constitutional implied rights, holding:

[342]    Grounds (oo) and (tt) allege that the Surrender Decision infringed implied constitutional rights. These include implied rights to, “stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment”. As submitted by the Attorney-General, there is no authority establishing an implied constitutional right to “stay, live and die in Australia”, nor a constitutional right to “due process, equality before the law, fairness or protection from cruel and unusual punishment”. Therefore, the Surrender Decision has not infringed any such implied constitutional rights. Grounds (oo) and (tt) have not been established.

140    Thus, the applicant seeks to re-agitate in the present proceedings a claim pursued in Action QUD107/2019 and on which he failed. It is an abuse of process for the respondents to be vexed a second time with those claims. Since the judgment in Matson 2020, the claimed constitutional implied rights have become subject to res judicata.

141    In relation to the applicant’s claim to a constitutional implied right to equality before the law, it was held in Kruger that there is no constitutional requirement that all laws of the Commonwealth must accord equality before the law: at 21, 30, 44 and 153-4. I add that the dicta of Murphy J in Sillery on which the applicant seemingly relies must now be read subject to the discussion of the claimed constitutional implied rights in Kruger.

142    The applicant had also sought to rely in Action QUD107/2019 on his indigenous ancestry in a number of other ways as the following passages in Matson 2020 indicate:

[191]    Ground (o) alleges that the decision was unreasonable on the basis that insufficient weight was given to Mr Matson’s Indigenous heritage and the consequences and likely hardship that would be caused to him and his family as First Nations people by surrendering him and potentially permanently separating him from his family, community, culture and country.

…

[195]    Mr Matson deposes that he is an Indigenous person, and that claim has not been disputed. In his affidavit filed on 24 June 2016, which was placed before the Attorney-General, Mr Matson raised both his Australian nationality and Indigenous race in the context of s 7(c), although he provided no detail about the relevance of his race. Further, at [35] of my reasons in respect of the First Instance Proceeding, which were placed before the Attorney-General, I observed that Mr Matson’s solicitor had submitted that, “he is of Indigenous heritage and that would have an effect on him being incarcerated for any lengthy period there”. Mr Matson did not explain what effect his Indigenous heritage would have on his incarceration in the USA.

…

[203]    Ground (q) alleges unreasonableness on the basis that the Attorney-General failed to give proper, genuine and realistic consideration to Mr Matson’s Indigenous heritage in determining whether or not to exercise his discretion under Article V of the USA Extradition Treaty. There is no requirement under Art V of the USA Extradition Treaty to consider a person’s Indigenous heritage. However, the Attorney-General, in fact, expressly considered Mr Matson’s Indigenous heritage, and I cannot see that he did not give proper, genuine and realistic consideration to, or that the decision is unreasonable by reason of inadequate weight being given to, that factor. The allegation of unreasonableness in Ground (q) has not been established.

…

[213]    Ground (v) alleges that the decision of the Attorney-General not to exercise the discretion under Art V of the USA Extradition Treaty and s 22(3)(f) of the Extradition Act was unreasonable, particularly having regard to Mr Matson’s nationality, his Indigenous heritage and his “special connection” to Australia.

…

[216]    At the hearing on 18 November 2019, I indicated that if my judgment remained reserved when the judgment in Love and Thoms was handed down, Mr Matson could make written submissions about the case. At the interlocutory hearing on 25 June 2020, Mr Matson’s legal representatives disclaimed reliance on that case. However, at the hearing on 28 August 2020, Mr Matson again sought to rely upon Love and Thoms. In particular, he referred to [[276]-[278] in the judgment of Nettle J] (quotation omitted).

[217]    The “special connection” referred to in the Draft Amended Originating Application seems to be a “spiritual connection” of the type described by Nettle J in Love and Thoms.

[218]    The Attorney-General was not bound to take any “spiritual connection” into account when exercising the discretion under s 22(3)(f) of the Extradition Act: cf Rivera at [14]; Snedden at [151].

[219]    Further, Mr Matson did not squarely or clearly raise any “spiritual connection” to Australia as a ground for making the decision under s 22(2) of the Extradition Act in his favour: cf NABE at [58]–[60]. He had made three references to his Indigenous heritage in the material in the First Instance Proceeding and the Full Court Proceeding. The first, described in my judgment in the First Instance Proceeding at [35], was that his Indigenous heritage, “would have an effect on him being incarcerated for any lengthy period there”. That submission did not mention any spiritual connection. The second was in Ground 10 of the Notice of Appeal in QUD 51 of 2017 which asserted that the primary judge erred in concluding he had not identified any basis for the assertion that his Indigenous heritage makes his detention particularly arduous. The third was in Ground 25 of that Notice of Appeal, and asserted that the primary judge erred in concluding that a potential 305 year prison sentence was not relevant and did not constitute special circumstances, “particularly as an indigenous Australian, the first peoples of this nation whom have suffered injustice and inequality since federation”. None of these matters squarely or clearly raised any hardship to Mr Matson by reason of loss of his “spiritual connection” to Australia. Further, QUD 51 of 2017 was the application for leave to appeal against my refusal of bail, which was later abandoned, so the grounds also appeared to be abandoned. The Attorney-General was not required to take any “spiritual connection” into account.

[220]    However, the Departmental Advice specifically recommended, and the Attorney-General accepted, that Mr Matson’s Indigenous heritage did not warrant the exercise of the discretion in his favour. The Attorney-General’s decision provides an evident and intelligible justification for that position, namely the countervailing factor of the legitimate interest of the USA in pursuing Mr Matson’s prosecution …

143    In relation to the applicant’s claim that the Surrender Decision was so irrational as to amount to jurisdictional error, Rangiah J held in Matson 2020:

[239]    The first aspect of this ground, that insufficient weight was given to Mr Matson’s Indigenous heritage, was also raised in Ground (o). For the reasons I gave in respect of Ground (o), I do not consider that the Attorney-General failed to give sufficient weight to Mr Matson’s Indigenous heritage and the hardship he would face, including as a result of being removed from Australia. The Departmental Advice, which formed the Attorney-General’s reasons, provided an evident and intelligible justification for the conclusion reached, and there is no basis for the allegation that the weight given to Mr Matson’s Indigenous heritage or his connection to Australia was inadequate.

…

[241]    The Departmental Advice provided an evident and intelligible justification for the conclusion reached. Therefore, I do not consider that the Surrender Decision was irrational or illogical on the basis of the weight given to these considerations. Ground (nn)(ii) is not established.

144    Further, the applicant had sought in Action QUD89/2016 to rely on an objection to extradition for which s 7(c) of the Act provides, namely, prejudice in the trial or punishment, detention or restriction of his liberty by reason of his race (Matson 2016 at [34]). In respect of this claim, Rangiah J held in Matson 2016:

[92]    Mr Matson raises an extradition objection on the grounds of race and nationality under s 7(c) of the Act. In Republic of Croatia v Snedden (2010) 241 CLR 461 at [69]-[70], the High Court held that s 7(c):

…requires a causal connection between the punishment the respondent might suffer on trial, after surrender, and his [race or nationality]. The phrase “by reason of” means that the person may be punished, detained or restricted in his or her personal liberty because of his or her [race or nationality].

[93]    Mr Matson has pointed to prejudice, including undue delay and severity in sentencing in the USA. However, there is no evidence that any such prejudice would be because of his race or nationality. To the extent that Mr Matson relies on general human rights and the International Covenant on Civil and Political Rights (“ICCPR”) in relation to s 7(c), these allegations do not provide any proof of a causal connection required to satisfy the Magistrate that the extradition objection has been established. The Magistrate was correct in finding that Mr Matson had not discharged the onus of proof to establish an extradition objection.

145    This review indicates that the applicant did seek in QUD107/2019 to rely on his Indigenous ancestry in a number of ways, that he was given ample opportunity to do so, and that he was unsuccessful. The claim which the applicant now advances is based on the same underlying factual circumstances. To the extent that it has been held that the applicant’s Indigenous ancestry does not give rise to a constitutional implied right, that is now the subject of res judicata. To the extent that it is not so subject, the claims which the applicant now seeks to advance are, in my view, so closely connected with his previous claims that it can be said to be unreasonable for the applicant not to have raised them in the context of Action QUD107/2019. I repeat what I said previously about there needing to be an end to the litigation. An Anshun estoppel applies.

146    The applicant sought to rely in multiple ways in Action QUD107/2019 on claims that his extradition would result in cruel and unusual punishment in violation of an asserted constitutional implied right – see Matson 2020 at [85(d)], [85(e)], (85(jj)], [85[nn)], [85(oo)] and [126]-[127], and in relation to his claim that the Act and Regulations are invalid (a matter to which I will return). Those matters were addressed in Matson 2020. To the extent that the applicant seeks to agitate them again, they also are subject to res judicata. To the extent to which the present claims are new, they should, for the reasons given earlier, have been made in Action QUD107/2019. Accordingly, an Anshun estoppel applies and/or it is an abuse of process for the applicant to seek to pursue them now.

147    Further, and in any event, it is well-established that extradition is not part of the criminal justice system and its purpose is not to inflict punishment. In Vasiljkovic, Gleeson CJ said:

[33]    Extradition is not part of the Australian criminal justice system. It involves no determination of guilt or innocence. By hypothesis (leaving to one side convicted fugitives), it concerns a person who is accused of an offence against a law other than an Australian law, and whom Australia does not intend to bring to trial for that offence. If, after the conditions stipulated by legislation have been satisfied, the person is surrendered, such surrender is the result of an executive decision.

[34]    Plainly, extradition has serious implications for the human rights, and in particular for the personal liberty, of the person who is the subject of a request for surrender. Those implications are not limited to the case of a person who is an Australian citizen. The interference with personal liberty involved in detention during the extradition process (if that occurs), and in involuntary delivery to another country and its justice system is not undertaken as a form of punishment. No doubt, to the person involved, some of its practical consequences may be no different from punishment, but the purpose is not punitive. To repeat, the process involves no adjudication of guilt or innocence. It is undertaken for the purpose of enabling such an adjudication to be made in a foreign place, according to foreign law, in circumstances where Australia has no intention itself of bringing the person to trial for the conduct of which the person is accused.

(Emphasis added)

See also Hayne and Gummow JJ at [105], [115].

148    Finally, I indicated earlier my acceptance of the respondents’ submission that the applicant has no reasonable prospect of establishing a contravention of an implied constitutional right under s 116 of the Constitution, for the reasons explained by Brennan CJ in Kruger at 40, by Gummow J at 152-3, and by Toohey and Gaudron JJ (although in dissent) at 86 and 133 respectively.

The 2PFAOA

149    The 2PFAOA involved some minor recasting of Proposed Order 1 and its particulars but not in a way which requires separate attention.

Conclusion on Proposed Order 1

150    Accordingly, it can be concluded that the applicant’s claim to Proposed Order 1 is subject in part to res judicata. To the extent that it is not, an Anshun estoppel applies. The applicant’s attempts to re-agitate matters in this Court constitutes an abuse of process.

Proposed Order 2 - the claim for an injunction

151    By Proposed Order 2, the applicant seeks a permanent injunction restraining the Attorney-General and the Australian Federal Police (AFP) from executing the Surrender Warrant. He relies on the same particulars as he does for Proposed Orders 1, 5 and 6. The claim with respect to the AFP does not appear in the 2PFAOA.

152    For reasons to be given shortly, I consider that Proposed Order 5 has no reasonable prospects of success. The failure of the claims for Orders 1 and 6 means that this claim also has no reasonable prospects of success.

153    Even if the particulars are considered independently, it should be held now that the applicant has no reasonable prospects of establishing an entitlement to a permanent injunction on the basis of the identified particulars.

Proposed Order 3 - habeas corpus

154    By Proposed Order 3, the applicant seeks the issue of a writ of habeas corpus to have him brought to Court “to determine the legal validity of his ongoing arbitrary detention”.

155    I note that the 2PFAOA expresses this claim in substantially similar but not identical terms.

156    I uphold the respondents’ submission concerning this claimed relief, namely, that so long as the order made by Magistrate Cosgrove under s 19(9) of the Act stands, there is no basis for the issue of a writ of habeas corpus or for challenge to the lawfulness of the applicant’s detention: Rahardja at [8] and Marku at [37]. I also accept the submission of the respondents that the matters concerning the lawfulness of the applicant’s detention are so closely connected with the issues agitated before the Full Court and culminating in Matson Full Court and in Matson 2020 that the applicant should not be permitted to agitate them again in these proceedings.

Proposed Order 4 - mandamus

157    By Proposed Order 4, the applicant seeks the issue of a writ of mandamus to compel each of the named respondents to release him from his ongoing detention. The corresponding claim in the 2PFAOA is in terms which do not seem to be materially different. The applicant relies on the same particulars as he does for Proposed Orders 1, 3, 5 and 6. Given the failure of these claims, it can be said now that this has no reasonable prospects of success. My reasons are the same as those given in relation to the claims for the other Proposed Orders.

Proposed Order 5 - the claim for exemplary damages

158    Proposed Order 5 is the applicant’s claim for exemplary damages for the entire period of his detention since 26 October 2015 at the rate of $2,500 per day. Although the applicant does not say so explicitly, it seems that he is alleging a form of unlawful imprisonment. It is not readily apparent what other basis there could be for a claim for damages, let alone exemplary damages. At the least it can be said that the basis for some other cause of action giving rise to a claim for damages has not been shown.

159    On my understanding, the articulation of Proposed Order 5 in the 2PFAOA matches that in the Proposed FAOA. It does not add to the applicant’s claim.

160    This claim faces the obvious difficulty that the applicant has been held in custody since 26 October 2015 pursuant to the warrant issued by Magistrate Morrison on 17 September 2015 under s 12 of the Act and the order made by Mr Cosgrove on 15 January 2016 under s 19 of the Act. The applicant’s challenges to the validity of the decisions under ss 12 and 19 have been unsuccessful, and, for the reasons given in relation to Proposed Order 6, he will not be able to rely on these matters to support this claim. That means that the applicant will not be able to support this claim by particulars (a), (b), (c) and, to an extent, (d) and (g).

161    By particulars (d), (e) and (g), the applicant raises complaints about the completeness of the documents provided to him from time to time by the Attorney-General’s Department. Whether these claims be justified or not, they cannot undermine the lawfulness of the applicant’s detention pursuant to the orders made by Magistrates Morrison and Cosgrove.

162    By particular (f), the applicant asserts that the United Nations Human Rights Committee (UNHRC) had found that the Commonwealth had, in its detention of a Mr Hew Griffiths pending his extradition to the USA, contravened Arts 9(1) and (4) of the ICCPR, and had recommended changes in the form of the Act and practices under it. He asserts that the Commonwealth has not acted in accordance with those recommendations. Even if these matters be established, they cannot make the applicant’s detention unlawful, so as to give rise to a claim for damages, let alone exemplary damages. The Commonwealth, while no doubt respecting recommendations of the UNHRC, is not bound to act in accordance with them. It is also to be noted that the great majority of the time which the applicant has spent in custody since 26 October 2015 has been because of his unsuccessful challenges to his extradition.

163    Accordingly, it can be said that the claim to Proposed Order 5 has no reasonable prospects of success.

Proposed Order 7 - the validity of the Act and the Treaty

164    By Proposed Order 7, the applicant seeks a declaration that the Treaty and the Act are invalid “under the Constitution”. He advances four grounds in support of that contention (and a fifth in the 2PFAOA). The first three are based on “the current form and practice” of the Treaty and the Act, it being said that they:

(a)    contravene the implied constitutional rights of due process, equality before the law, fairness and protection from cruel and unusual punishment by allowing:

(i)    indefinite arbitrary detention of people who contest extradition proceedings in Australia;

(ii)    people facing proceedings to be legally unrepresented at all stages of extradition;

(iii)    people to be surrendered to countries where they will likely face disproportionately large prison sentences (such as in [the USA] where multiple life sentences occur);

(iv)    First Nations people to be separated permanently from their family, community, culture and country, without regard to their “special connection” to Australia which is a spiritual connection; and

(v)    people to be surrendered to foreign countries where the person faces an unacceptably high risk of contracting COVID-19 which could cause death or serious illness;

(b)    are inconsistent with fundamental human rights under the ICCPR including Art 7 (protection from torture, cruel and unusual punishment), Art 9 (protection from arbitrary detention) and Art 14 (minimum guarantees in criminal proceedings); and

(c)    are beyond the power of the Australian Parliament as they are not for the peace, order or good government of the Commonwealth with respect to the “external affairs power” within the meaning of s 51(xxix) of the Constitution as they fail to ensure that all Australians’ fundamental human rights are protected at all stages of extradition proceedings.

165    The fourth ground alleges that the Act and Treaty are invalid as they infringe upon the “religious freedom” of Indigenous Australians provided under s 116 of the Constitution by failing to recognise the importance of First Nations people’s “special connection” with Australia and the spiritual significance of “Dreaming”, “Ancestral Ties” and being connected to the land.

166    This claim of the applicant faces a number of difficulties. First, it is doubtful that this Court has jurisdiction to declare a treaty invalid. Even if the Court does have that jurisdiction, inconsistencies between the “form and practice” under the Treaty and the ICCPR would not, of themselves, lead to a conclusion that the Treaty is invalid.

167    However, those issues can be put to one side because the extradition of the applicant is being ordered under the Act and its validity does not depend upon the “validity” of the Treaty. The power conferred on the Australian Parliament by s 51(xxix) of the Australian Constitution is not confined to the making of laws for the implementation of international treaties: Polyukhovich v Commonwealth [1991] HCA 32, (1991) 172 CLR 501 at 528-31 (Mason CJ), at 599-604 (Deane J), at 632 (Dawson J), at 696 (Gaudron J) and at 712-4 (McHugh J); Horta at 193-5; Vasiljkovic at [36] (Gleeson CJ).

168    Moreover, it is open to the Australian Parliament to make laws which are inconsistent with international law or international treaties. In Polites v Commonwealth (1945) 70 CLR 60, Latham CJ said at 69:

The Commonwealth Parliament can legislate on these matters in breach of international law, taking the risk of international complications … It must be held that legislation otherwise within the power of the Commonwealth Parliament does not become invalid because it conflicts with a rule of international law, although every effort should be made to construe Commonwealth statutes so as to avoid breaches of international law and of international comity.

See also Starke J at 75, Dixon J at 78, McTiernan J at 79 and Williams J at 81 and Horta at 195 in which the High Court said:

It was submitted on behalf of the plaintiffs that the enactment of the two Acts would be beyond the legislative power conferred by s 51(xxix) if the Treaty were void under international law either on the ground that it was contrary to international law or on the ground that Australia’s entry into or performance of it would be in breach of Australia’s obligations under international law. There is, however, a short answer to that submission. The answer is that even if the treaty were void or unlawful under international law or if Australia’s entry into or performance of the Treaty involved a breach of Australia’s obligations under international law, the Act and Consequential Act would not thereby be deprived of their character as laws with respect to “External affairs” for the purposes of s 51(xxix). Neither s 51(xxix) itself nor any other provision of the Constitution confines the legislative power with respect to “External affairs” to the enactment of laws which are consistent with, or which relate to treaties or matters which are consistent with, the requirements of international law.

(Citation omitted)

169    Thirdly, it has previously been held that Pt 2 of the Act (which comprises ss 12-27) and the Regulations are supported by s 51(xxix) of the Constitution: Vasiljkovic at [36]. Further, in DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226, it was held that Australian citizens do not have any constitutional right not to be removed from Australia pursuant to regulations giving effect to international law, at [21].

170    The next difficulty for the applicant is that he challenged the validity of the Act and Regulations in Action QUD107/2019 on multiple bases. Although his claims to this effect in [10] of the Draft Amended Originating Application were lengthy, it is convenient to set them out presently:

The Applicant contends in support of paragraph 10:

Particulars

(a)     The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations create a “conflict of interest” and fail to sufficiently protect the fundamental human rights and constitutional implied rights of Australian citizens by empowering the Executive Government to determine the surrender outcome and assess the fundamental human rights of persons subject to extradition while at the same time assisting the governments of foreign states requesting extradition in their legal proceedings, such as Mr David Reed and Mr Stephen Bouwhuis have done in the case of the US Government. In their current form and practice the Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations are profoundly unjust and inconsistent with international law, and are inconsistent and beyond the power provided under s 61 of the Constitution;

(b)     The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations subject the resident of one State to a disability or discrimination in another State which would not be equally applicable to him or her if he or she were a resident in such other state by reason of the application of different rules of evidence in contravention of section 117 of the Constitution. Further, the varying application of Human Rights Law in different States and Territories, as the State of Victoria and the ACT have incorporated legislation to incorporate fundamental human rights enshrined in the International Covenant on Civil and Political Rights (ICCPR) while the other States and Territories have not, resulting in a contravention of section 117 of the Constitution;

(c)     The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations infringe the Magna Carta, common law rights and accepted principles of international customary law, so fundamental they cannot be overturned by legislation:

(i)     Magna Carta Paragraph 29: “No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice”;

(ii)     common law rights such as procedural fairness, natural justice, liberty, speedy trial, duty of fairness, due process, protection from excess of power and the common law principle which requires relevant considerations to be taken into account and the decision not to be Wednesbury unreasonable;

(iii)     the common law sufficed on its own to indicate that a “legitimate expectation” was generated by the UDHR, ICCPR, ICERD and CAT as accepted part of international customary law. The UDHR, ICCPR, ICERD and CAT are all now internationally accepted and entrenched as part of international customary law; and

(iv)     the principle of international customary law that treaties will be interpreted in good faith and that Governments will uphold both the “Rule of Law” and respect fundamental human rights of all people including its own citizens.

(d)     The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are beyond power and not for the peace, order and good government of the Commonwealth with respect to external affairs within the meaning of section 51 xxix of the Constitution by reason of the Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations being inconsistent with:

(i)     the Australian Human Rights Commission Act 1986 (Cth), Schedule II - International Covenant on Civil and Political Rights (ICCPR) Articles 2, 5, 7, 9, 10, 14 and 26;

(ii)     the Human Rights Act 2004 (ACT), sections 8(1), 8(2) and 8(3), 10(1) and 10(2) and 22(1) and 22(2)(a) and 22(2)(b) of the Act;

(iii)     the Racial Discrimination Act 1975 (Cth), sections 9 and 10 of the Act; and Schedule I - International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Articles 1, 2, 5, 6 and 7;

(iv)     the United Nations Declaration of the Rights of Indigenous People, Articles 2, 7, 15, 17, 19, 25, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 4; and

(v)     the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

…

(e)     The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent with the requirements of Chapter III of the Constitution by reason of the Act and Regulations conferring non-judicial powers on the courts thereby forcing Chapter III courts to perform administrative quasi-judicial functions without due consideration of the inherent characteristics of a Chapter III court as intended by those whom framed the Constitution. Further, the Chapter III courts must in reality and by appearance be independent or separate from the executive and the Parliament. The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent the Constitution because an “abuse of process” has been deemed as an unavailable option under the Extradition Act 1988 (Cth) legislation which is against the traditional conceptions of any Chapter III court.

(f)     The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations derogate from universally accepted fundamental human rights and fail to provide for the United Nations ICCPR Article 14 minimum guarantees in criminal proceedings, fail to ensure a fair extradition process and fail to respect the “Rule of Law” which is an over reach of the power conferred on Parliament. In particular, there is no requirement for legal representation at any stage of the extradition proceedings under the Extradition Act 1988 (Cth) despite the serious nature and consequences of extradition. Moreover, the Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations require arbitrary punishment and arbitrary abrogation of fundamental human rights without the fair and impartial application of the relevant law to facts which have been properly ascertained and is also inconsistent with the Governments representations, long established practice and published policy regarding:

(i)     Indigenous human rights protection;

(ii)     Anti-discrimination and equality;

(iii)     Constitutional implied rights;

(iv)     Government accountability;

(v)     Freedom of Information and transparent Government; and

(vi)     Extradition and mutual assistance in criminal matters;

(g)     The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent with the constitutional implied rights under the Constitution, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment;

(h)     The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are also inconsistent with international customary law including the international peremptory norms of international extradition law and extradition treaties:

(i)     United Nations Model Treaty on Extradition 1990, Article 3 and 4; and

(ii)     Vienna Convention on the Law of Treaties 1969, Article 19, 26, 31, 53, 62 and 64;

(i)     The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations derogate traditional common law rights and enshrined constitutional principles derived from the UK “Bill of Rights” by providing for arbitrary arrest and arbitrary abrogation of fundamental human rights without a fair hearing. This arbitrary arrest and arbitrary abrogation of fundamental human rights is potentially indefinite with no reasonable or genuine opportunity of a person subject to extradition proceedings being granted bail or being able to challenge the legality of their detention, contrary universally accepted standards established by international customary law and the traditional common law right of liberty;

(j)     The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations fail to sufficiently protect the rights of Australian citizens, particularly the fundamental human rights of indigenous Australians, which is inconsistent with recognising the human dignity of a person subject to extradition as a full member of the human community, and in its current form and practice is profoundly unjust and inconsistent with international law. In 2015 the United Nations Human Rights Committee (UNHRC) in communication 1973/2010 gave a strong recommendation to the Commonwealth of Australia to change the current form and practice of the Extradition Act 1988 (Cth), so that all Australians can fully enjoy ICCPR human rights. The UNHRC also found the Commonwealth in breach of ICCPR Articles 9(1) and 9(4) because of the arbitrary detention of Mr Hew Griffiths while he contested his extradition to the US. In a clear snub to the United Nations Human Rights Committee the Commonwealth has taken no steps to change the Extradition Act 1988 (Cth).

(k)    The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are invalid as the exercise of legislative power is not proportional to, nor is it appropriately adapted to section 51 xxix external affairs head of power in the Constitution. The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations fail the “Proportionality Test” as they both infringe constitutional implied rights of those persons subject to extradition proceedings, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment, and further deny fundamental human rights of those persons subject to extradition proceedings, and are not reasonably or appropriately adapted to achieve the ends that lie within the limits of constitutional power, and are inconsistent with recognising the “human dignity” of a person as a full member of the human community, particularly for First Nations people whose recognition, constitutional implied rights and fundamental human rights have all long been denied and ignored under the Constitution.

(l)     The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are invalid as they infringe upon the implied “religious freedoms” and the “cultural practices” of First Nations people provided under section 116 of the Constitution, by failing to recognise the importance of First Nations peoples “special connection” with Australia and the spiritual significance of “Dreaming” and being connected with the land. The effects of permanently separating an Indigenous Australian citizen from their family, culture and country are plainly oppressive and unjust not only for the individual but also for the extended family and community of the individual subject to extradition. Australia is the “Spiritual Place” of First Nations people, and the Applicant therefore has a constitutional implied right, a fundamental human right and an un-extinguished common law right to stay, live and die in Australia as has happened for over 60,000 years. Not only does the land belong to First Nations people, but they belong to it - now and forever. They have belonged to it in the past, the now, and in the future when they will die and return in spirit and in substance to their “Dreaming-place”. Any legislation that purports to sever this constitutional implied right, fundamental human right and an un-extinguished common law right, of First Nations people to live and die in Australia, is beyond power and invalid under any modern interpretation of the Constitution.

(Emphasis in the original)

171    In addressing these grounds, Rangiah J referred first (at [345]) to Vasiljkovic, citing Gleeson CJ at [36]-[37]:

[36]    The Regulations, and Pt II of the Act, are supported by s 51(xxix) of the Constitution: the external affairs power. As French J said in Hempel v Attorney-General (Cth): "[T]he subject-matter of extradition is directly concerned with international relations. ... The nature of extradition is such that a law with respect to it is likely to be a law with respect to external affairs whether or not there is in existence any supporting treaty." The external affairs power is not confined to the implementation of treaties. Making arrangements, by treaty or otherwise, for the extradition of alleged fugitive offenders, and giving effect to those arrangements, are matters that directly concern Australia's relations with other countries and are part of that aspect of its external affairs.

[37]    The conferral of power in s 51(xxix) is subject to the Constitution. Is the deprivation of liberty necessarily involved in the extradition process, or the particular scheme of Pt II of the Act, contrary to the Constitution? It may be accepted that, subject to qualifications, "the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts". However, as Gaudron J pointed out in Kruger v The Commonwealth, there are well-known exceptions to that general proposition and, further, those exceptions do not fall within precise and confined categories. They include, for example, arrest and custody pending trial, and detention by reason of mental illness or infectious disease. They also include the process of extradition.

(Citations omitted)

172    Rangiah J then continued:

[346]    Accordingly, the High Court has held that the Extradition Act, and by extension the Extradition Regulations, are supported by the external affairs power and do not infringe the Constitution. Therefore, Grounds (a)-(l) of the particulars in support of paragraph 10 relating to their inconsistency with international customary law, common law rights and the Magna Carta cannot succeed.

[347]    In Ground (k), Mr Matson alleges that the Extradition Act and the Extradition Regulations, “infringe constitutional implied rights of those persons subject to extradition proceedings, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years”. Mr Matson indicated at the hearing on 18 November 2019 that he relied upon arguments raised in Love and Thoms (which was concerned with the “aliens” power). The judgment in Love and Thoms was delivered after I had reserved my judgment, and I indicated to Mr Matson at the hearing on 18 November 2019 that he could make submissions on the relevance of that judgment once handed down.

[348]    The written submissions prepared by Mr Burnside QC and Mr Freeman for the purpose of the interlocutory hearing on 25 June 2020 stated with respect to Love and Thoms, “The Applicant concedes that his argument that the constitutional validity of the Extradition Act 1988 (Cth), as it applies to him is without foundation”. Mr Matson later purported to withdraw this concession in written submissions filed for the purpose of the interlocutory hearing on 28 August 2020. However, Mr Matson has not otherwise made submissions regarding any implied constitutional right for Indigenous people to not be removed from Australia that is said to arise from the decision in Love and Thoms. I therefore consider this argument to be abandoned, and will not consider it.

173    The effect is that, with the exception of the claims based on Love and Thoms (Love v Commonwealth of Australia [2020] HCA 3; (2020) 375 ALR 597), the issues concerning the validity of the Act (and for that matter the Regulations) were resolved adversely to the applicant in Matson 2020. Despite the concession by his experienced senior counsel, the applicant was given the opportunity to present an argument as to the validity of the Act based on the decision in Love v Thoms. He did not do so and thereby, in effect, abandoned the claim. The doctrine of res judicata applies to those aspects determined in Matson 2020. In so far as the argument based on Love v Thoms was not determined, an Anshun estoppel should apply. Alternatively, it is an abuse of process for the applicant to seek now to pursue claims which were abandoned in Action QUD107/2019. The respondents should not be vexed in these proceedings with a contention which the applicant could have advanced in Action QUD107/2019, and which was so closely connected with the matters which he did advance.

174    I add that in the 2PFAOA, the applicant seeks to raise an additional ground for his contention that Act and the Treaty “are invalid and beyond power under the Constitution”. As previously indicated, I have decided that the applicant should not be permitted to reopen. It is convenient to refer to the additional ground of invalidity later when giving my reasons for refusing the application to reopen.

175    For the reasons given above, I consider that Proposed Order 7 does not have reasonable prospects of success.

The applicant’s 6 January 2021 application to reopen

176    In this section of the reasons, I give my reasons for refusing the application of the applicant in the fifth interlocutory application for leave to reopen the proceedings.

177    The interlocutory application indicated that the applicant sought to reopen the proceedings in order to seek leave to file (and rely upon) yet a further amended originating application, to seek orders for a “temporary stay” and to seek an order with respect to a medical and psychological assessment. The respondents opposed the grant of leave to reopen. I will address first that part of the application which concerned the 2PFAOA.

The applicable principles

178    The principles on which the Court acts when considering an application to reopen a matter before the delivery of judgment are settled. The overriding principle is the interests of the administration of justice having regard to the circumstances of the case: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], [26]; Brown v Petranker (1991) 22 NSWLR 717 at 729; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478; Harrington Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338, (2004) 207 ALR 483 [121]; and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456, (2014) 243 IR 468 at [48].

179    In Bradshaw, Kenny J identified at [24] four overlapping classes of cases in which a court may grant leave to reopen: fresh evidence; inadvertent error; mistaken apprehension of the facts; and mistaken apprehension of the law. The applicant’s present application seems to be in the first and fourth of these categories.

180    The matters bearing on the interest of justice are various. They include:

    the public interest (and the interests of the particular parties) in litigation being conducted efficiently and expeditiously;

    the public interest in the finality of litigation, with the consequent expectation that litigants will present all their evidence and submissions at the one hearing;

    the significance of the proposed new evidence and submissions in the context of the hearing

    the explanation for the evidence not having been led at the trial;

    the likely prejudice to the opposing party if the application is allowed;

    the potential detriment to the applying party if the application is refused; and

    any delay by an applicant in seeking leave to reopen.

181    Regard should also be had generally to the overarching purpose of the Court’s civil practice and procedure provisions stated in ss 37M and 37N of the FCA Act.

The basis for the application to reopen

182    In the interlocutory application, the applicant said that he sought the leave by reason of a “significant development”, namely, the provision to him of the December Letter in which the Attorney-General stated that he had no power to remake or reconsider a determination made under s 22 of the Act. The applicant annexed a copy of the December Letter to his supporting affidavit. In the first two paragraphs of that letter the Attorney-General stated:

Thank you for your letter of 11 August 2020 in which you asked me to reconsider the determination made by the Acting Attorney-General, the Honourable Greg Hunt MP, to surrender you to the United States of America.

I appreciate the time you have taken to bring this matter to my attention. However, I do not have the power to remake or to consider a surrender determination made under s 22 of the Extradition Act 1988 (Cth).

The claims in 2PFAOA

183    The 2PFAOA refers to the December Letter in relation to three of the proposed orders. In support of the application for a declaration that the Treaty and the Act “are invalid under the Constitution” (Proposed Order 7) the applicant wishes to add a new particular:

(7(e))    [The Act] and [the Treaty] … are invalid and beyond power under the Constitution as in its current form and practice it does not allow the Attorney-General to revoke, remake or reconsider a determination made under s 22 of [the Act], which puts Australian citizens lives at risk, breaches fundamental human rights and constitutional implied rights of Australian citizens and therefore the exercise of legislative power is not proportional to, nor is it appropriately adapted to section 51 xxix external affairs head of power in the Constitution, and is inconsistent with recognising the "human dignity” of a person as a full member of the human community.

184    The applicant then seeks to add claims for two additional orders:

(8)    An order in the nature of a "declaration" that the determination made by the Acting Attorney-General, the Honourable Greg Hunt MP under s 22 of [the Act] (the Surrender Decision) to surrender the Applicant to the United States of America (the USA) is unlawful and invalid.

Particulars

a)    Due to the Attorney-General, the Honourable Christian Porter MP failing to revoke, remake or reconsider the Surrender Decision in circumstances where it is plainly necessary and appropriate to do so, including because of COVID-19 and the Applicant's deteriorating physical and mental health, which the Attorney-General has purported to justify on the erroneous basis that he has no power to remake or reconsider a determination made under s 22 of [the Act]. Please note: The Attorney-General has recently personally written a letter (undated) to the Applicant to inform him that that he has no power to remake or reconsider a determination made under s 22 of [the Act]. See: Annexure "BPM-1" of the Applicant's affidavit sworn 6 January 2021.

(9)    An order in the nature of a "Mandamus" to compel the Attorney-General of the Commonwealth of Australia to revoke, remake and reconsider the determination made by the Acting Attorney-General, the Honourable Greg Hunt MP under s 22 of [the Act] to surrender the Applicant to the USA, which existing determination is unlawful and invalid.

Particulars

a)    The circumstances of the Appellant's case make it plainly necessary and appropriate for the Attorney-General, The Honourable Christian Porter M.P. to revoke, remake and reconsider the determination made by the Acting Attorney­General, the Honourable Greg Hunt MP under s 22 of [the Act] to surrender the Applicant to the USA, including because of the Applicant's "special connection" to Australia as a First Nations person and the likely hardship for him and his family as a result of him being permanently separated from his family, community, culture and country; the ongoing escalation of the COVID-19 pandemic in the USA which puts the Applicant's life at risk; the unresolved issue of the "withheld documents" which file has now been deleted by the Attorney­General's Department; the fact that the Applicant faces the largest ever prison sentence faced by an Australian citizen in Australian legal history; and because of the Applicant's deteriorating physical and mental health.

(Emphasis in the original)

Consideration of reopening with respect to the 2PFAOA

185    The manner of expression of particular (e) to Proposed Order 7 suggests that the applicant accepts that the Attorney-General is correct in asserting that he does not have power to remake or reconsider a surrender determination made under s 22 of the Act. However, the manner of expression of Proposed Orders 8 and 9 tends to suggest that the applicant asserts that the Attorney-General is mistaken in the view which he has taken of his powers. That was the view which the applicant advanced on the hearing of the application to reopen.

186    The applicant referred to Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 as authority for the proposition that the Attorney-General does have power to revoke or vary a decision made under s 22 of the Act. In that case, the Minister had, following a reduction in the number of charges for which the extradition was sought, revoked the issue of an earlier surrender warrant and had determined in its place that the person be surrendered on the reduced counts. However, the Minister’s power to do so was not the subject of any consideration by the High Court: see [1] (Gleeson CJ and McHugh J), and [59] (Kirby J). That is to say, while the exercise of the power to revoke was part of the circumstances giving rise to the appeal in Foster, the validity of that exercise had not been in question.

187    Counsel for the respondents did not accept that the Attorney-General had been incorrect in stating that he lacked the power to revoke or amend the s 22 Decision, noting instead that there was “no obvious power under the Act to reconsider”. Counsel did not, however, refer to any authority which supported the Attorney-General’s view of his powers.

188    Given the decision in Foster, it is at least reasonably arguable that the Attorney-General was incorrect in the view which he took of his powers. Nevertheless, I conclude for a number of reasons that it was not in the interests of justice to allow the reopening with respect to the 2PFAOA.

189    First, it is not reasonably arguable that any failure by the Attorney-General in December 2020 to reconsider or revoke the s 22 Decision could have the effect of rendering “unlawful and invalid” the s 22 Decision made by the Acting Attorney-General, Mr Hunt MP, on 1 February 2019, as the applicant wishes to claim in Proposed Order 8. Plainly, such a claim has no reasonable prospects of success.

190    Secondly, having regard to the matters to which I referred in relation to the applicant’s existing claims concerning the validity of the Act, it is not reasonably arguable that a lack of power by the Attorney-General to reconsider and revoke a surrender decision (if that be the case) could have the effect of rendering invalid the Act, Pt 2 of the Act, or even s 22 of the Act. The circumstance that the applicant has identified a different “peg” on which to hang his submissions concerning implied constitutional rights does not alter the position stated earlier. The matter contained in the proposed [7(e)] cannot have the effect of making the claim for Proposed Order 7 reasonably arguable.

191    I also consider that the claim for Proposed Order 9 is not reasonably arguable. Even if the Attorney-General does have a power to reconsider and revoke a s 22 decision, the Attorney-General cannot be compelled to exercise it, let alone to exercise it in the applicant’s favour. In this regard, counsel for the respondents referred to Rivera v Minister for Justice and Customs [2007] FCAFC 123; (2007) 160 FCR 115 in which Emmett J said:

[14]    Finally, under s 22(3)(f), the Minister must consider that the person should be surrendered in relation to the offence. Thus, the Minister has a general discretion whether to surrender an eligible person or not. The discretion is unfettered and the Minister may, in the exercise of the discretion, take into account any matters, or no matters, provided that the discretion is exercised in good faith and consistently with the objects, scope and purpose of the Act.

192    As counsel for the respondents submitted, the matters which the applicant now says will compel the Attorney-General to revoke the s 22 Decision are not matters which the Act requires to be considered in the making of a surrender determination. That being so, even if it be the case that the Attorney-General is obliged to make his decision on a correct understanding of the law, it is difficult to see how the matters on which the applicant relies could compel the revocation of an earlier surrender determination. That is especially so in the context that the Act includes s 26(5) and (6).

193    I mention that the 2PFAOA sought to revise in some respects the claims for Proposed Orders 1 to 6 and the particulars in support of those proposed orders. Account was taken on those revisions in the consideration of the claims for each of those proposed orders. None of those revisions has the effect of making the applicant’s claims reasonably arguable. Further, the very fact that the applicant seeks to revise (even in minor respects) his articulation of the proposed orders and the particulars on which they are grounded after the presentation of the parties’ submissions is a matter counting against it being in the interests of justice to allow the reopening.

Reopening for psychological assessment

194    By [4] of the fifth interlocutory application, the applicant seeks a “temporary stay” of the respondents’ interlocutory application of 11 September 2020 until all respondents have been served with the 2PFAOA and until such time as he has been psychologically and physically assessed. The application asserts that the applicant has respiratory problems making him more susceptible to COVID-19, that he has other “nervous physical related disorders” and that he is concerned about other medical conditions including “dementia and the possibility of lung cancer and other types of cancer”.

195    Next, the applicant seeks an interlocutory order that the Commonwealth pay for “a psychological assessment and full physical assessment”, by reason of concerns about his mental and physical health after having been held so long in a maximum security prison facility.

196    The applicant made oral submissions in support of this part of the interlocutory application at the hearing on 4 February 2021 but did not provide any evidence in support of those claims. It is of course for the applicant to provide the evidence on which he seeks orders from the Court. Further, the provision of appropriate care and treatment for prisoners with issues affecting their health is generally the responsibility of the prison authorities (R v Smith (1987) 44 SASR 587 at 587). It is not ordinarily a matter upon which the Court intrudes.

197    In my view, the applicant has not shown any proper basis upon which the Court could presently make interlocutory orders of the kind that he seeks concerning his medical and psychological assessment. Nor has the applicant shown a basis on which it would be appropriate for the Court to order “a temporary stay” of the respondents’ interlocutory application of 11 September 2020. Accordingly, this aspect of the application to reopen is not made out.

Conclusion on the application for reopening

198    I accept that, this being a matter in which the liberty of the applicant is at stake, the Court should not adopt a narrow view in considering the exercise of the discretion to allow reopening. I also accept that the matters are important to the applicant and that he is anxious to agitate every possible means by which he may resist his extradition to the USA. But there are other considerations to which I referred earlier. In particular, the public interest in litigation being conducted efficiently and expeditiously and the public interest in the finality of litigation are important. There is a limit on the number of occasions in which the applicant can seek to agitate the same claims, claims of the same nature and claims on the same or similar grounds even when seeking to base them on different legal “pegs”. In my view, the limit has been reached in this case.

199    These are my reasons for refusing the application for leave to reopen contained in the fifth interlocutory application.

Other matters bearing on the abuse of process

200    There are other matters indicating that the originating application, the AOA, the proposed FAOA and the 2PFAOA may have a vexatious quality. There was no need for the applicant to have named the former USA President, Mr Trump or the former USA Attorney-General, Mr Barr, as respondents. There is no basis on which it could be said that they have had any involvement in the steps towards the applicant’s extradition. The naming of the USA as a respondent would have been sufficient to give it the opportunity to be heard in respect of the relief which the applicant seeks.

201    The applicant’s re-ordering in the AOA and the proposed FAOA of the sequence in which the respondents are named, so as to have Mr Trump and Mr Barr named as first and second respondents in lieu of the Attorney-General of Australia, is also suggestive of vexation. So also was his naming of Mr Morrison, the current Australian Prime Minister, as a respondent.

202    However, it is not necessary to express a concluded view about these matters, nor to rest my decision on them.

203    I mention that on 5 February 2021, the applicant caused to be sent to my Associate a further affidavit, by which he sought, in effect, to make further submissions in relation to the hearing of the fifth interlocutory application which had occurred on 4 February 2020. I have declined to have regard to that affidavit: the applicant was not given leave to file a further affidavit or to make further submissions; the affidavit was not sent with the consent of the respondents; it did not appear that the applicant had even sought their consent; the applicant had not complied with cl 2.4 of the Guide to Communications with Chambers Staff and cl 15 of the Central Practice Note: National Court Framework and Case Management (CPN-1); I was concerned about the provision of procedural fairness to the respondents; and it is not usually in the interests of justice for the Court to continue to receive unsolicited submissions from a party after a hearing has concluded.

A second application to reopen

204    On 19 February 2021, the applicant sent an interlocutory application bearing the same date to my Associate. By that application he seeks leave to “reopen” the 6 January interlocutory application (to which I have referred in these reasons as the “fifth interlocutory application”), leave to “reopen” his application seeking leave to reopen heard on 4 February 2021 (which I understand to be leave to make further submissions), leave to file his affidavit of 5 February 2021 (mentioned in [203] above), and leave to file supplementary submissions entitled “Applicant’s Supplementary Submissions” dated 19 February 2021.

205    The Applicant’s Supplementary Submissions document contained the applicant’s submission in support of his application to reopen, his explanation for not having made all the submissions on 4 February 2021, and the submissions he would make if the reopening was allowed. The applicant recognised that he needed leave to file the interlocutory application and made submissions in support of the grant of that leave also.

206    I have decided (without inviting responsive submissions from the respondents) that, despite the applicant’s evident anxiety that no stone should be left unturned in his efforts to avoid extradition, leave to file the interlocutory application of 19 February 2021 should be refused for the following reasons:

(a)    the time for making submissions in support of the fifth application was on 4 February 2021. Litigants are expected to present all their submissions in the one hearing. Even though the applicant is representing himself, that expectation applies to him also. I note that the applicant had received assistance from a legal practitioner, Mr Finlayson, in respect of the hearing on 4 February 2021;

(b)    there is no indication that the applicant has even sought the consent of the respondents to the grant of leave which he seeks, but it may be assumed safely that the respondents would oppose the grant of leave to reopen;

(c)    there would be unfairness, if not vexation, to the respondents in having to deal with a further application to reopen (noting that the applicant made three applications to reopen in Action QUD107/2019) and had filed successive iterations of an application to reopen in these proceedings on 6 and 7 January 2021;

(d)    the applicant cannot reasonably have been in doubt that his application of 6 January 2021 to reopen would be heard on 4 February 2021;

(e)    it is not uncommon for counsel, including senior counsel, to think after a hearing has concluded of something further which could have been said, but the courts do not usually permit further submissions to be lodged;

(f)    many of the submissions which the applicant now wishes to make were capable of being advanced either in the applicant’s written submissions or in his oral submissions on 4 February 2021. They are not matters which have arisen only since 4 February 2021 or which the applicant could not reasonably have anticipated then. I note again that the applicant had legal assistance in relation to the hearing on 4 February 2021. It is not a matter of the applicant not having had a reasonable opportunity to present his submissions. That is especially so given his previous experience on applications to reopen. The applicant well knew the matters to be addressed in support of an application to reopen;

(g)    the grant of leave to reopen would mean further delay in the delivery of this judgment, which delivery has been delayed by the interlocutory application of 6 January 2021;

(h)    the grant of the leave sought by the applicant would not be consistent with the overarching purpose to which ss 37M and 37N of the FCA Act refer; and

(i)    there comes a time when the interests of justice require finality. That time has been reached.

207    The applicant’s affidavit of 5 February 2021, his letter of 19 February 2021 to my Associate and the attachments, being his interlocutory application of 19 February 2021 and the document entitled “Applicant’s Supplementary Submissions” dated 19 February 2021 will be placed on the Court file (without being accepted for filing) so that they can be identified, if necessary in the future.

208    I add that on 2 March 2021 the Court received a letter from Mr Matson seeking leave of the Court to withdraw Grounds 3 and 5 from the originating application as filed and as contained in the 2PFAOA. I understand this to be a request to withdraw proposed Ground 3 (habeas corpus) and Ground 5 (exemplary damages) from the claims for relief. In the view I take of the matter as set out above, it is not necessary to consider the applicant’s application for leave.

Conclusion on the first and second respondents’ interlocutory application

209    Whether it be the originating application as filed, the AOA, the proposed FAOA or the 2PFAOA, I consider that it should be held now that the application has no reasonable prospects of success. There is no need to defer giving effect to that conclusion until the remaining respondents have been served. Accordingly, the applications to amend in the form of the AOA and the proposed FAOA should be refused and judgment should be entered for the first two respondents, the Attorney-General for the Commonwealth and the Commonwealth itself, by dismissing the application against them. The applicant’s claims against Mr Trump, Mr Barr and the USA have no better prospects of success. They too should be dismissed.

The bail application

210    My conclusion that the originating application should be dismissed, makes it unnecessary to address the applicant’s interlocutory application for bail contained in that application. However, in case this matter goes further, I will do so briefly.

211    The applicant, who was represented by counsel on the application for bail, submitted that the Court’s power to order bail arises pursuant to s 39B of the Judiciary Act. More particularly, he submitted that s 15(3) of the Act is applicable. In my opinion, that involved a mistaken understanding of the Act. Section 15 concerns the procedure to be adopted after a person is arrested under an extradition arrest warrant as occurred in the applicant’s case on or shortly before 26 October 2015. Section 15(1) provides that the arrested person is to be brought as soon as practicable before a Magistrate or an eligible Federal Circuit Court judge. Section 15(2) requires that the Magistrate or Judge remand the person in custody or, subject to some qualifications, on bail. Section 15(3) to which counsel for the application referred states:

If a person is remanded in custody after making an application for bail, the person cannot make another application for bail during that remand unless there is evidence of a change of circumstances that might justify bail being granted.

212    Relying on this provision, counsel sought to demonstrate the requisite change of circumstances.

213    However, on my understanding, the applicant is presently held in custody pursuant to the order of remand made by the Magistrate under s 19(9) of the Act on 15 January 2016. The remand pursuant to s 15 then ceased. Accordingly, s 15(3) is inapplicable.

214    Another part of the submissions of the applicant’s counsel indicated that the application for bail was made pursuant to s 49C of the Act. That section provides:

49C Availability of bail during judicial review proceedings relating to certain determinations

(1)    This section applies if:

(a)    the Attorney-General determines under subsection 15B(2) or 22(2) that a person is to be surrendered to an extradition country in relation to one or more extradition offences; and

(b)    the person applies to a court for judicial review of the determination.

(2)    The court to which the application is made, or any court hearing an appeal in relation to the determination, may, subject to subsection (3), order the release of the person on bail until the application has been determined or the appeal has been heard (as the case requires).

(3)    A court must not release a person on bail under subsection (2) unless there are special circumstances justifying such release.

215    As is apparent, s 49C is applicable only if the Attorney-General has made a determination under s 15B(2) or s 22(2) that a person is to be surrendered to an extradition country in relation to one or more extradition offences and the person has applied to a court for judicial review of the determination.

216    The respondents disputed the characterisation of the present proceedings as judicial review proceedings but accepted that the Court does have power, pursuant to s 23 of the FCA Act, to grant the applicant bail. That concession was appropriately made – see Peniche v Vanstone [1999] FCA 1688, (1999) 96 FCR 38 at [29]; Adamas v The Hon Brendan O’Connor (No 3) [2012] FCA 365 at [13]-[16].

217    The particular source of the Court’s power to order bail is of no consequence as it was common ground that, whether it derived from s 23 of the FCA Act or from s 49C of the Act, the principles to be applied are the same. Both parties referred to United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 in which the High Court (Gleeson CJ, McHugh and Gummow JJ) reviewed the principles bearing on the grant of bail in extradition proceedings as an incident of the power conferred by s 73 of the Constitution. Their Honours concluded that review by stating that bail in extradition cases should be granted only when two conditions are satisfied:

[61]    Given this background and the rationale for the "special circumstances" condition, bail in extradition cases should be granted only when two conditions are fulfilled. First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges. This means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure. To constitute "special circumstances", the matters relied on "need to be extraordinary and not factors applicable to all defendants facing extradition." Second, there must be no real risk of flight. Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. When there is a real risk of flight, ordinarily bail should be refused. Further, the risk of flight should be considered independently of the effect of the proposed bail conditions. In this area of law, the history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than bail conditions – even rigorous conditions. A person, fearing punishment and inclined to flee, is unlikely to be diverted from that course by the prospect that his or her sureties may forfeit their securities or by stringent reporting conditions. Even if the defendant has to report twice daily to the police, he or she will have a period of 12-14 hours in which to leave Australia.

(Citation omitted)

218    The High Court went on to state that, even when those conditions are satisfied, the grant of bail remains discretionary:

[62]    Even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted. For example, the defendant may pose a risk to the community or a particular individual. In addition, bail must become harder to obtain as the case proceeds through the judicial system. Once the Magistrate has found that the defendant is eligible for surrender, public interest factors similar to those that require a convicted defendant to be imprisoned also require that a defendant in extradition proceedings be kept in custody. Before a Federal Court judge grants bail, the defendant ordinarily will need to show that the application for review has strong prospects of success as well as special circumstances and an absence of risk of flight.

219    Later, at [72], the Court stated that it would be an error on a bail application in an extradition matter to take into account that there is “a predisposition against unnecessary or arbitrary detention in custody”. The Court continued:

… The Parliament has made it plain that bail is not to be granted unless special circumstances are proved. However unpalatable such a conclusion may be to the mind of the common lawyer, the Parliament believed that the fulfilment of Australia's treaty obligations makes the principles governing bail in domestic cases inapplicable in extradition cases. In extradition cases, the general rule is that defendants are to be held in custody whether or not their detention is necessary. Only when there is something special about a defendant's circumstances can the question of bail be considered. For that reason, it is erroneous to take into account "those circumstances which ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime". Those circumstances may be taken into account in considering the exercise of discretion after special circumstances have been established. But they can play no part in determining whether the applicant has established special circumstances.

220    Accordingly, it would be necessary for the applicant on his application for bail to satisfy the Court that:

(a)    the underlying application in these proceedings has strong prospects of success;

(b)    special circumstances exist; and

(c)    there is no real risk of flight.

Even if the applicant established those matters, it would also be necessary for him to show that it would be an appropriate exercise of the Court’s discretion to grant bail.

221    Plainly, on my findings, the applicant cannot establish strong prospects of success in the underlying proceedings. I consider that they have no reasonable prospects of success. It is not necessary to consider whether the special circumstances for which his counsel contended do exist. I doubt that I would have been satisfied that there is no real risk of flight by the applicant.

222    One cannot help but have some sympathy for the applicant given that he has now been held in custody for over five years. That is likely to continue for some time yet, as counsel for the respondents informed the Court that the applicant would not be removed from Australia before the determination of his appeal against the judgment in Matson 2020. Even then, the circumstances of the COVID-19 pandemic may make that removal impractical. However, as the applicant himself acknowledged, it is likely that his extradition would have been completed long ago had it not been for his unsuccessful challenges to its validity. With the possible exception of the period of approximately nine months which elapsed before the Surrender Decision and issue of the Surrender Warrant on 1 February 2019, it is the applicant who has brought the long period of detention on himself. That diminishes the weight which would otherwise be attached to it.

223    For these reasons, I would have refused the application for bail.

Conclusion

224    For the reasons given above, I make the following orders:

(1)    The interlocutory application of the applicant sent to the Court on 6 January 2021 and filed on 11 January 2021 seeking to reopen the hearing is refused.

(2)    The application of 19 February 2021 for leave to reopen the interlocutory application filed on 11 January 2021 is refused.

(3)    Each of the interlocutory applications of the applicant filed on 25 and 29 September 2020 is refused.

(4)    Pursuant to s 31A of the FCA Act, the originating application filed on 4 August 2020 is dismissed.

(5)    Subject to the following orders, the applicant is to pay the costs of the first and second respondents of and incidental to the proceedings to be taxed in default of agreement.

(6)    If either the applicant or the first and second respondents wish to contend for some different order as to costs, he or they are by 4 pm on 10 March 2021, to file and serve an outline of submissions setting out the different order for which they contend and the submissions in support of the making of that order, with those submissions not to exceed five pages.

(7)    In the event that the applicant or the first and second respondents do file submissions in accordance with the preceding order, the other party is, by 4 pm on 17 March 2021, to file responsive submissions, not exceeding five pages.

(8)    Subject to any further order, the Court will then determine the outstanding issues as to costs on the papers.

(9)    The parties do not have leave to file and serve any documents other than those referred to in Orders 6 and 7.

Associate:

Dated:    3 March 2021

SCHEDULE OF PARTIES