Federal Court of Australia
Matson v Attorney-General (No 2) [2022] FCA 213
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Pursuant to ss 25(2B)(aa) and 31A(2) of the Federal Court of Australia Act 1976 (Cth), judgment be given in favour of the First and Second Respondents in relation to the whole of the application for leave to appeal filed on 15 March 2021.
2. The applicant pay the costs of the respondents, such costs to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J:
1 Before the Court is an interlocutory application filed by the first and second respondents (summary judgment application) seeking summary judgment in their favour in respect of Mr Matson’s application for leave to appeal from a decision delivered on 3 March 2021 in Matson v Attorney-General of the Commonwealth of Australia [2021] FCA 161. Specifically, the respondents seek the following orders:
1. Pursuant to ss 25(2B)(aa) or 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA) or rule 26.01 of the Federal Court Rules 2011 (Cth) (the FCR), judgment be given to the First and Second Respondent in relation to the whole of the application for leave to appeal filed on 15 March 2021 on the grounds that:
(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding; or
(b) the proceeding is an abuse of the process of the Court.
2. Further, or alternatively, pursuant to ss 25(2B)(ba) or 25(2B)(bb) of the FCA, the application for leave to appeal be dismissed for the failure by the applicant to:
(a) comply with a direction of the Court (s 25(2B)(bb) of the FCA); or
(b) prosecute the application for leave to appeal (s 25(2B)(ba) of the FCA).
3. Further, or alternatively, pursuant to the inherent jurisdiction of the Court, the application for leave to appeal be stayed on the grounds that the proceeding is an abuse of the process of the Court.
4. Any further or other order that the Court deems fit.
5. The applicant pay the respondent’s costs of this application.
PRELIMINARY ISSUE
2 The hearing of the summary judgment application was listed for hearing at 10.15 am on Thursday 10 February 2022. At around 3.00 pm on the afternoon of Wednesday 9 February 2022 the Federal Court Registry received a hand-written emailed letter from Mr Matson, which was in the following terms:
Dear Registrar (URGENT ATTENTION – ASSOCIATE TO THE HONOURABLE JUSTICE COLLIER)
RE: QUD83/2021
1. I refer to the above mentioned matter and the interlocutory application listed at 10.15am (Brisbane time) Thursday, 10 February 2022 before the Honourable Justice Collier.
2. Due to the importance of the hearing I hereby humbly request that her Honour please make an order requiring my appearance in person at the Harry Gibbs Law Courts Building, Federal Court of Australia, for the interlocutory application tomorrow.
3. Thank you for your time on this matter
3 At 5.02 pm on 9 February 2022 a Legal Case Manager in the Federal Court replied to this letter by email to Corrections Queensland, as follows:
Good afternoon,
I refer to the attached correspondence recently received.
Due to the current COVID-19 situation in Brisbane the Federal Court of Australia is still taking steps to reduce the risk to court users and court staff from in person attendance in court buildings. Due to the lateness of this request which has been received by the Registry, the listing will proceed via MS Teams.
4 When the hearing in respect of the summary judgment application commenced at 10.15 am on 10 February 2022 it was by MS Teams, with Mr Matson appearing for himself and Mr del Villar appearing for the respondents. Orally, Mr Matson applied for orders in the following terms:
That he be permitted to appear in person at the Court for the hearing, and
That the Court grant him a short adjournment of no more than 7 days to allow him to give instructions to his pro bono Counsel, Ms De Ferrari, for appearances and the filing of submissions in respect of the summary judgment application.
5 After hearing submissions from both Mr Matson and Mr del Villar I refused to make the orders sought by Mr Matson, for the following reasons.
6 First, the lateness of notice by Mr Matson – being late on the day before the hearing – militated against the grant of the orders.
7 In respect of the adjournment application, as Burley J observed in Zetta Jet Pte. Ltd v The Ship “Dragon Pearl” [2018] FCA 878:
[38] In the current context it is also apposite to note that in the exercise of its discretion it is appropriate for the Court also to consider the position of other litigants and confidence in the judicial system generally: [Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175] (at [5] (French CJ) and [111] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). It is for the plaintiffs to persuade the Court, on sufficient material, that an adjournment is appropriate. As the plurality in AON said at [103], [106], [107], if an application that would result in an adjournment is sought and no, or no sufficient explanation is given then the application should be refused. French CJ said (at [4]) that where an application is made “late in the day”, without adequate explanation and necessitating the vacation of a trial date, the applicant bears a heavy burden to show that the exercise of the Court’s discretion should be in its favour.
(emphasis added)
8 In respect of the application to appear in person, I note that on 27 January 2022 the Federal Court announced on the website www.fedcourt.gov.au as follows:
27 January 2022: Online and telephone services only for all court registries (except WA)
There will be no face-to-face services in court registries (except WA), unless otherwise approved by the Head of Jurisdiction.
We are still open to support litigants and the profession through a range of online and phone services. These precautionary measures will assist to reduce the need to travel.
Please note that the Federal Court of Australia requires all attendees to:
• be double vaccinated
• QR check-in on arrival
• use hand sanitiser before entering the court
• wear masks at all times except for speakers, and
• if you are unwell please remain at home.
In exceptional circumstances where these conditions cannot be met, and at the discretion of the presiding Judge, the Court may develop a protocol on a case by case basis, to ensure the safety of court staff and parties.
Developments will be monitored and arrangements may change at short notice based on government health advice and restrictions.
9 The announcement of 27 January 2022 followed the release by the Federal Court on 30 March 2020 of the Special Measures Information Note – Updated being Special Measures in Response to COVID-19 (SMIN-1) Information Note which set out arrangements for the continued operation of the Federal Court during the COVID-19 pandemic in Australia. Relevantly, the Court announced that short listings and events of half a day or less would be accommodated by being on the papers, telephone, or other remote access technology. This Special Measures Information Note remains in force.
10 To this extent I note that it was public information that, at that time, the Court was not conducting face to face services in Brisbane without the approval of the Chief Justice. It was clearly inefficient within the meaning of s 37M of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) for the Court to entertain an application for in person attendance, late in the day on the eve of a hearing, without sufficient or clear reason.
11 Second, I was not persuaded of the necessity of Mr Matson being present in person at Court for the hearing of the summary judgment application. As was plain from his conduct at the hearing, Mr Matson was more than capable of addressing the Court and responding to the respondents’ submissions. I was not satisfied that he was prejudiced in being required to present his arguments via MS Teams. I note in any event that presentation of submissions via MS Teams has become commonplace practice in this Court with the advent of the COVID-19 pandemic from early 2020.
12 Third, I made case management orders on 18 November 2021 taking the summary judgment application to hearing on 10 February 2022. These orders were made in the presence of the respondents, and Mr Matson’s legal Counsel, Ms De Ferrari SC.
13 Despite my case management orders of 18 November 2021, no written submissions were filed by Mr Matson in respect of the summary judgment application in accordance with those orders. No application was made by Mr Matson for variation or vacation of those orders. This may be contrasted with the filing of submissions by the respondents in accordance with the timetable.
14 At the hearing Mr Matson explained that he was unaware until recently that Ms De Ferrari had not filed submissions on his behalf in accordance with the case management orders of 18 November 2021, or that Ms De Ferrari would not appear on his behalf at the hearing of 10 February 2022. I find these submissions difficult to accept in circumstances where Mr Matson has been an active litigant in this Court in these proceedings.
15 I also note Mr Matson’s submission that he proposed to discuss with Ms De Ferrari her ongoing representation of him and to give her further instructions. Where Ms De Ferrari was actually present at Court on 18 November 2021 when relevant case management orders were made, and in the absence of either appearance of or explanation by Ms De Ferrari, a reasonable inference for me to draw was that Ms De Ferrari was not acting for Mr Matson at that time.
16 In this respect I considered an adjournment for the purpose asserted by Mr Matson likely to be futile.
17 Fourth, in circumstances where the respondents contended that Mr Matson’s interlocutory application and appeal completely lack merit such that they should be summarily dismissed, I considered it to be in the interests of justice in accordance with s 37M of the Federal Court Act that the summary judgment application proceed to hearing.
18 Finally, I was not persuaded that the summary judgment application should be adjourned pending the outcome of Mr Matson’s asserted proposal to seek reinstatement of the appeal in QUD356/2020. At that time, no such reinstatement application had been filed in QUD356/2020.
19 In these circumstances the parties proceeded to make submissions in relation to the summary judgment application. Before turning to those submissions and the orders sought by the respondents, it is useful to examine the judgment that is the subject of Mr Matson’s application.
Primary Judgment
20 Clearly, there was an extensive and complex procedural history to the primary judgment (and ultimately the present proceedings). In summary:
On 15 January 2016, pursuant to s 19 of the Extradition Act 1988 (Cth) (the Extradition Act), Magistrate Cosgrove determined that Mr Matson was eligible for surrender to the USA and ordered his committal to prison to await a determination under s 22 of the Extradition Act on whether he should be surrendered to the USA (the Section 19 Proceeding);
On 1 February 2016, pursuant to s 21 of the Extradition Act, Mr Matson filed an application for review of the Section 19 Proceeding (QUD89/2016). This application was dismissed by Rangiah J on 21 October 2016 (the Section 21 Proceeding);
On 26 July 2016, Mr Matson filed an application under s 39B of the Judiciary Act 1903 (Cth) seeking review of the decision to issue a notice under s 16 of the Extradition Act as well as the decision to issue an arrest warrant under s 12 of the Extradition Act. This proceeding (QUD569/2016) was subsequently referred to the Full Court for determination (the Sections 12 and 16 Proceeding);
On 2 November 2016, Mr Matson appealed to the Full Court of the Federal Court (QUD844/2016) from the Section 21 Proceeding. On 26 February 2017, the Sections 12 and 16 Proceeding was removed to the Full Court to be heard simultaneously with that appeal (collectively, the First Full Court Proceeding);
On 13 April 2018, the Full Federal Court dismissed the Section 12 and 16 Proceedings and the appeal from the Section 21 Proceeding. The effect of the Full Court decision was to confirm the lawfulness of the decisions made under ss 12, 16 and 19 of the Extradition Act with respect to Mr Matson’s extradition (the First Full Court Decision);
On 11 February 2019, Mr Matson filed an application seeking review of the Attorney-General’s decision to surrender Mr Matson to the USA under s 22(2) of the Extradition Act and to issue a warrant for Mr Matson’s surrender to the USA under s 23 of the Extradition Act (QUD107/2019) (the Sections 22 and 23 Proceeding). Those proceedings were dismissed on 28 October 2020 by Rangiah J (the 2020 Rangiah J Decision); and
On 5 November 2021, Mr Matson’s appeal against the decision of Rangiah J (QUD356/2020) was dismissed for failure on his part to comply with a self-executing order.
21 In the primary judgment his Honour described the proceedings before the Court, concerning applications and other material filed in QUD254/2020, as follows:
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”.
22 His Honour noted that the originating application in QUD254/2020, as filed by Mr Matson on 4 August 2020, sought the following relief:
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.
23 In respect of the interlocutory application for summary judgment filed by the respondents on 11 September 2020, his Honour noted that the respondents relied principally on the principles of res judicata, Anshun estoppel, and abuse of process.
24 At [45] the primary Judge noted the agreement of the parties that the Court should receive submissions first on the summary judgment application of the respondents. His Honour further noted at [46] that Mr Matson’s fifth interlocutory application:
46. …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.
25 At [50]-[53] the primary Judge set out principles referable to summary judgment. His Honour then explained principles of res judicata (at [54]-[57]), Anshun estoppel (at [58]-[63]), at [65] the inter-relationship between res judicata (cause of action estoppel), issue estoppel and Anshun estoppel (as discussed by the High Court in Tomlinson v Ramsey Food Processing Ltd [2015] HCA 28; (2015) 256 CLR 507 at [22]), and abuse of process principles (at [66]-[69]).
26 His Honour summarised the submissions of the parties, noting in particular at [86] that Mr Matson’s principal submissions by way of resistance to the summary judgment/strike out application commenced by asserting a prima facie case of “third party fraud”, “collusion” and “executive lawlessness” on the part of senior Departmental officers at the Attorney-General’s Department 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. His Honour further noted, at [86], the contention of Mr Matson that the extradition process had been “tainted by the collusion and lawless conduct of both the USA and Commonwealth government officials”. His Honour referred to Mr Matson’s submission in this respect as the “Decision Invalidity Ground”.
27 At [89] his Honour also noted the contentions of Mr Matson referable to circumstances created by the COVID‑19 pandemic, including that any surrender of him to the United States would be unlawful because of the then-ongoing escalation of COVID-19 and the unacceptably high risk to health and well‑being this posed to Mr Matson. His Honour observed:
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.
28 Further, his Honour noted the submission of Mr Matson that Anshun estoppel did “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” (at [91]).
29 His Honour observed, at [92], that it was plain that some of the issues Mr Matson sought to agitate had been agitated in previous proceedings, and been the subject of decisions of the Court, including as follows:
At [96] his Honour said that an orthodox application of the principles of res judicata precluded Mr Matson from agitating the claim that the s 16 Decision was invalid for a second time, and it was irrelevant that some of Mr Matson’s grounds were different from those in his earlier amended application.
At [97] his Honour accepted that there had been judicial determination of Mr Matson’s challenge to the Section 19 Proceeding.
At [98]-[100] his Honour found that Mr Matson had earlier expressly abandoned any challenge to the decision of Magistrate Morrison, and Anshun estoppel now precluded him from raising any issue about the action taken under s 12 of the Extradition Act.
At [101] his Honour noted that Mr Matson had, in Action QUD107/2019 challenged the s 22 decision of the Minister, including on the ground that the s 22 decision had not been made as soon as reasonably practicable after Mr Matson 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”. His Honour noted at [106] and [108] that, before Rangiah J, Mr Matson had also raised this issue, and that the judgment of Rangiah J was substantial and comprehensive. His Honour at [110] noted that one of the central issues addressed in the proceedings before Rangiah J was Mr Matson’s claim that the s 22 decision made on 1 February 2019 be quashed. At [112] his Honour noted that Rangiah J considered the grounds on which Mr Matson relied, and rejected each. It followed that Mr Matson sought to re-agitate the validity of the s 22 decision and the issue of the surrender warrant, which was vexatious and oppressive, and an abuse of the process of the Court.
His Honour concluded at [115] that the whole of the claim for Proposed Order 6 should be struck out.
At [116] his Honour noted that Mr Matson sought a declaration, inter alia, that any attempt by the Commonwealth to surrender him to the USA would be unlawful, relying on the circumstances of the COVID-19 pandemic and asserted unacceptably high risk to his health and well-being. His Honour noted that Mr Matson asserted three implied constitutional rights to support his argument. His Honour also noted that, before Rangiah J, Mr Matson sought an adjournment for reasons including his wish to receive a response from the Attorney-General to a letter dated 11 August 2020 requesting reconsideration of the surrender decision in light of the COVID-19 pandemic. To that extent at [125] his Honour was satisfied that before Rangiah J Mr Matson had articulated similar claims concerning COVID-19.
At [126] his Honour noted that Mr Matson relied on art 7 of the International Covenant on Civil and Political Rights (the ICCPR), however:
• 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;
• Justice Rangiah addressed the effect of art 7 of the ICCPR in relation to the contention of Mr Matson that the s 22 decision and the issue of the surrender warrant were affected by jurisdictional error in the nature of failure to accord natural justice; and
• Justice Rangiah rejected these claims of Mr Matson.
At [130] his Honour noted that Mr Matson was not seeking to re-agitate 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…
His Honour noted at [131] that Mr Matson was represented at one stage by senior and junior counsel, and could have sought to amend his application in QUD107/2019 by reference to the effects of the pandemic. His Honour concluded at [132] that the claims Mr Matson sought to make in reliance on the COVID-19 pandemic were claims to which Anshun estoppel applied.
At [135] his Honour found that the respondents were correct in submitting that, while Australia is a signatory to the ICCPR, the ICCPR had not been enacted so as to become part of Australian domestic law. It followed that any non‑compliance with the ICCPR could not, by itself, make Mr Matson’s extradition unlawful.
In respect of Mr Matson’s reliance on implied constitutional rights, at [139] his Honour noted that Rangiah J had rejected such claims. His Honour continued at [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.
At [142]-[144] his Honour referred to the approach by Rangiah J of Mr Matson’s claims of Indigenous heritage, and noted at [145] that in QUD107/2019 Mr Matson sought 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. His Honour continued:
145. …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.
At [146]-[147] his Honour noted that Mr Matson 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, however those issues were addressed by Rangiah J in that judgment. In any event it was well‑established that extradition is not part of the criminal justice system and its purpose is not to inflict punishment (Vasiljkovic v Commonwealth [2006] HCA 40).
At [140] his Honour concluded that Mr Matson’s claim to relief in terms of Proposed Order 1 was subject in part to res judicata, and otherwise Anshun estoppel applies. His Honour further observed that Mr Matson’s attempts to re‑agitate matters constituted an abuse of process.
His Honour, at [152], concluded that Proposed Order 5 had no reasonable prospects of success.
In relation to Mr Matson’s claim for a writ of habeas corpus, his Honour rejected it at [156] on the basis that an order had been made by Magistrate Cosgrove under s 19(9) of the Extradition Act.
At [157] his Honour found that Mr Matson had no reasonable prospects of success in seeking a writ of mandamus to compel the named respondents to release him from his ongoing detention.
In relation to Mr Matson’s claim that the Extradition Act and the Treaty on Extradition between Australia and the United States of America as amended by the Protocol amending the treaty on extradition between Australia and the United States of America of May 14, 1974 (the Treaty) were invalid under the Australian Constitution, his Honour, at [171], noted the observations of Rangiah J in respect of similar claims, and further noted at [173] that Rangiah J had resolved such issues adversely to Mr Matson.
30 At [209] the primary Judge concluded that the application by Mr Matson had no reasonable prospects of success. His Honour also concluded that Mr Matson’s interlocutory application for bail had no reasonable prospects of success.
APPLICATION FOR LEAVE TO APPEAL
31 On 15 March 2021 Mr Matson filed an application for leave to appeal from the primary judgment, on the following grounds:
1. The primary Judge erred in law and made a number of jurisdictional errors which tainted his Judgment and Orders dated 3 March 2021 in Matson v The Attorney-General of the Commonwealth of Australia [2021] FCA 161, [See: Draft Notice of Appeal dated 15 March 2021 attached to this application], which errors of law and jurisdictional errors in summary include:
• failing to observe the procedures that were required by law in connection with making his Judgment and Orders dated 3 March 2021;
• failing to explain in simple terms the procedures and processes of the Court, particularly as· the Applicant was an unrepresented litigant;
• failing to make a genuine attempt to evaluate the Applicant's submissions and evidentiary material or properly consider relevant material and factors;
• acted unreasonably or was seriously irrational or illogical; and
• denying the Applicant procedural fairness and failing to show respect for the dignity of the Applicant and his family.
2. The primary Judge erred in not granting leave to the Applicant to "reopen" the proceedings on 4 February 2021, when fresh evidence was brought before the Court namely the December 2020 letter personally signed by the Honourable Christian Porter M.P., Attorney-General (undated letter) which informed the Applicant that he had no power to remake or reconsider an s 22 determination made under the Extradition Act 1988 (Cth) which was legally incorrect, and which letter further established that, in view of the COVID-19 pandemic in the USA, the Attorney-General had made an inadvertent error in not revoking, reconsidering and remaking the existing s 22 determination made by the Honourable Greg Hunt M.P. as the Acting Attorney-General on 1 February 2021 to surrender the Applicant to the USA, and further established that the Attorney-General had misapprehended the law, on the basis that there is High Court authority indicating that the Attorney-General does have power to revoke, reconsider and remake an existing s 22 determination under the Extradition Act 1988 (Cth) [See: Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at [1] per Gleeson CJ and McHugh J and at [59] per Kirby J].
32 Mr Matson also filed an affidavit on 15 March 2021 annexing a draft notice of appeal. The draft notice of appeal contains 47 grounds, many of which are further particularised. In summary:
In ground 1 Mr Matson claims error by the primary Judge at [2] in stating that “the applicant seeks relief of diverse kinds directed to avoiding the extradition”.
In grounds 2, 3, 4, 5, 14, 38, 39, 42 and 44 Mr Matson claims failure by the primary Judge to accord him procedural fairness in respect of (inter alia) his Honour’s conduct of the trial, acceptance of material, and evaluation and consideration of Mr Matson’s submissions and material.
In grounds 6, 7, 8, 9, 10 and 11 Mr Matson claims error by the primary Judge in addressing his claims of third party fraud.
In grounds 12 and 13 Mr Matson claims error by the primary Judge in respect of his Honour’s findings concerning Proposed Order 6.
In grounds 15 and 24 Mr Matson claims error by the primary Judge in stating that Mr Matson asserted three implied constitutional rights when in fact he asserted five implied constitutional rights, and these arguments were not subject to res judicata.
In grounds 16, 19, 20, 21, 26, 32, 33, 34, 35, 36, 43 Mr Matson claims (inter alia) error on the part of the primary Judge in not recognising the error of the Attorney-General not to revoke, reconsider and remake the existing s 22 surrender documents in circumstances of the COVID-19 pandemic.
In ground 17 Mr Matson claims error by the primary Judge in respect of Proposed Order 1 in that he was plainly entitled to commence separate proceedings based around the COVID-19 pandemic in the USA, including the interlocutory application dated 6 January 2021.
In ground 18 Mr Matson claims error by the primary Judge in attributing weight to pro bono legal representation provided to him in limited respects.
In ground 22 Mr Matson claims error by the primary Judge in misconstruing the application and relevance of s 26(5) and (6) of the Extradition Act.
In grounds 23 and 25 Mr Matson claims error by the primary Judge in finding that Rangiah J gave Mr Matson opportunity to re-open his case and file written submissions concerning his asserted Indigenous ancestry and alleged implied constitutional rights.
In ground 27 Mr Matson claims error by the primary Judge in failing to recognise that Mr Matson was entitled to raise the allegation that his extradition to the United States would result in cruel and unusual punishment.
In ground 28 Mr Matson claims that the findings of the primary Judge at [150] were not reasonable, rational and logical.
In ground 29 Mr Matson claims that the primary Judge’s errors in respect of Proposed Order 5 infected his Honour’s findings in respect of Proposed Orders 1 and 6.
In ground 30 Mr Matson claims that the primary Judge’s errors in respect of Proposed Orders 1 and 6 infected his Honour’s findings in respect of Proposed Order 4.
In ground 31 Mr Matson claims error by the primary Judge in failing to recognise that, because Rangiah J refused leave to reopen, the doctrines of res judicata, Anshun estoppel and/or abuse of process did not preclude Mr Matson from making his argument about the validity of the Extradition Act and the Treaty.
In ground 37 Mr Matson claims his Honour evinced bias in not permitting him to reopen his case by reference to a new argument arising out of the COVID-19 pandemic.
In ground 40 Mr Matson claims error by the primary Judge in considering unfairness to the respondents in making a further application to reopen proceeding QUD107/2019.
In ground 41 Mr Matson claims error by the primary Judge in finding that he was not in doubt that the application to reopen proceeding QUD107/2019, filed on 6 January 2021, would be heard on 4 February 2021.
In grounds 45, 46 and 47 Mr Matson claims his Honour erred in refusing bail on the basis that, inter alia, Mr Matson had demonstrated strong prospects of success
the SUMMARY JUDGMENT application
33 The application filed by the Attorney is in the following terms:
1. Pursuant to ss 25(2B)(aa) or 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA) or rule 26.01 of the Federal Court Rules 2011 (Cth) (the FCR), judgment be given to the First and Second Respondent in relation to the whole of the application for leave to appeal filed on 15 March 2021 on the grounds that:
(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding; or
(b) the proceeding is an abuse of the process of the Court.
2. Further, or alternatively, pursuant to ss 25(2B)(ba) or 25(2B)(bb) of the FCA, the application for leave to appeal be dismissed for the failure by the applicant to:
(a) comply with a direction of the Court (s 25(2B)(bb) of the FCA); or
(b) prosecute the application for leave to appeal (s 25(2B)(ba) of the FCA).
3. Further, or alternatively, pursuant to the inherent jurisdiction of the Court, the application for leave to appeal be stayed on the grounds that the proceeding is an abuse of the process of the Court.
4. Any further or other order that the Court deems fit.
5. The applicant pay the respondent’s costs of this application.
34 The respondents filed written submissions in support of the summary judgment application, and were represented by counsel at the hearing. In summary, the respondents submitted:
The contentions Mr Matson seeks to raise on appeal have been dealt with by the Court in previous proceedings, or could and should have been raised in those proceedings;
Mr Matson is precluded from advancing such contentions by operation of the doctrines of res judicata, Anshun estoppel and abuse of process. It follows that Mr Matson has no prospects of successfully appealing the decision of the primary Judge; and
In any event, the contentions that Mr Matson sought to raise lack merit.
35 Mr Matson did not file written submissions in relation to the summary judgment application. He did, however, make oral submissions, to the effect that:
As is clear from such authorities as Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60, if there is a real issue of fact to be decided or a real issue of law to be resolved, the matter should proceed to trial.
In the present proceedings there are two issues of law to be resolved, such as to warrant the matter proceeding to hearing. These issues are:
• whether Mr Matson actually requires leave to appeal, or whether leave is not required pursuant to s 24(1C) of the Federal Court Act (such that he is entitled to appeal as of right from the primary judgment); and
• whether the Attorney-General of the Commonwealth has power under s 22 of the Extradition Act to reconsider, revoke and remake a surrender determination.
Consideration
36 In Quach v Commissioner of Taxation [2019] FCA 1729 Jackson J summarised principles referable to consideration of summary judgment applications pursuant to s 31A of the Federal Court Act as follows:
10. The relevant power to order summary judgment is found in s 31A(2) of the Federal Court of Australia Act 1976 (Cth). In order to enliven the power to award summary judgment under that provision, the court must be satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. It is also necessary to have regard to s 31A(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.
11. The standard of no reasonable prospect of success is also found in r 26.01(1)(a) of the Federal Court Rules 2011 (Cth). The tests are identical, apart from s 31A(3): Zippo Manufacturing Co v Jaxlawn Pty Ltd [2011] FCA 1125 at [20] (Gordon J). Even though it has no equivalent in r 26.01, it seems to me that s 31A(3) clarifies, but does not alter, the ordinary meaning of the standard of no reasonable prospect of success, and I will proceed on the basis that the test under the Act and the test under the Rules are the same.
12. The applicable principles are well established and may be summarised as follows:
(1) It is the applicant for summary judgment who bears the onus of persuading the court that the proceedings should be determined summarily: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [45].
(2) It may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [58]; see also at [22].
(3) As the combined effect of s 31A(2) and 31A(3) makes clear, the inquiry is whether the prosecution of the relevant part of the proceeding has no reasonable prospect of success, not whether that defence is hopeless or bound to fail: Spencer at [52].
(4) The test is a departure from earlier provisions authorising summary judgment to be ordered: Spencer at [53]. Section 31A has lowered the bar and softened the test: Cassimatis at [46].
(5) Nevertheless, the power to dismiss an action summarily must be exercised with caution and is not to be exercised lightly: Spencer at [24] and [60].
(6) Section 31A(1) provides that when the court is satisfied that the respondent to an application for summary judgment has no reasonable prospect of successfully prosecuting or defending the proceeding or that part of the proceeding, then the court ‘may’ give judgment. The assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [28].
(7) A practical judgment as to the case at hand is required, by reference to the stage it has reached: Spencer at [25]; Cassimatis at [46].
37 I respectfully note and adopt those observations of his Honour as explaining relevant principles referable to s 31A of the Federal Court Act.
38 Turning to the case at hand, I make the following preliminary observations.
39 First, as the primary Judge noted, Mr Matson has commenced multiple proceedings in the original jurisdiction of this Court in respect of his extradition. To the extent that, in draft ground of appeal 1, Mr Matson took issue with his Honour’s finding at [2] and denied that the proceedings before his Honour were motivated by avoiding his extradition, I find such criticism and denial by Mr Matson to be disingenuous. Rather, it is plain from the history of proceedings commenced by Mr Matson, described by his Honour in detail, that Mr Matson has been strongly motivated by his desire to avoid extradition to the United States. I am satisfied that draft ground of appeal 1 has no prospects of success.
40 Second, Mr Matson claims in draft grounds of appeal 2, 3, 4, 5, 14, 38, 39, 42 and 44 that the primary Judge did not properly and fairly evaluate and consider his material and submissions. However, the decision of the primary Judge is lengthy, detailed, comprehensive, and appears to be exhaustive in examining the multiplicity of claims and applications brought by Mr Matson, before both the primary Judge and Rangiah J, as well as submissions of Mr Matson. I am satisfied that those draft grounds of appeal have no prospects of success.
41 Third, the reasons of his Honour were primarily referable to principles of res judicata, Anshun estoppel and abuse of process.
42 Principles of res judicata are well settled in Australia. As Fullagar J explained in Jackson v Goldsmith (1950) 81 CLR 446 at 466:
… 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.'"
43 Justice Fullagar was cited with approval by the plurality of Gibbs CJ and Mason and Aickin JJ in Port of Melbourne Authority v Anshun Proprietary Ltd (1981) 147 CLR 589 at 597, where their Honours went on to observe:
The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.
44 Principles of Anshun estoppel emerged from the decision of the High Court in Anshun. In particular I note the following observation of the plurality at 598:
The critical issue, then, is whether the case falls within the extended principle expressed by Sir James Wigram V.C. in Henderson v. Henderson. The Vice-Chancellor expressed the principle in these terms:
"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. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."
(footnotes omitted, emphasis added)
45 Subsequently in Tomlinson v Ramsey Food Processing (2015) 256 CLR 507, at 517, French CJ and Bell, Gageler and Keane JJ gave further explanation of Anshun estoppel as follows:
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 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.
(footnotes omitted)
46 Their Honours in Tomlinson further discussed principles of abuse of process, as follows:
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. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.
(at 518-519)
(footnotes omitted)
47 Mr Matson does not, in either his application for leave to appeal or his draft notice of appeal, cavil with the primary Judge’s articulation of principles of res judicata, Anshun estoppel or abuse of process. It would be difficult to do so in circumstances where his Honour’s articulation of these principles appears to be without error. I am satisfied that, in the primary judgment, the primary Judge has correctly stated and applied principles of res judicata, Anshun estoppel and abuse of process.
48 Fourth, despite long-standing case management orders requiring filing of written submissions, I note the absence of any submissions from Mr Matson other than orally at the hearing. I note however that his draft notice of appeal is lengthy, many of his draft grounds of appeal are particularised to the point that they are more in the nature of submissions than grounds, and many of his draft grounds of appeal include unparticularised assertions and opinions. In dealing with the summary judgment application, in the interests of justice I will have regard to both Mr Matson’s oral submissions and his draft grounds of appeal as material presented by an uninformed litigant in person (see Mansfield J in Starkey v State of South Australia [2011] FCA 456 at [33]), noting of course that in his oral submissions he addressed a number of his draft grounds of appeal relating to the s 22 decision.
“Live” issues of law for determination – whether leave to appeal is required
49 Relevantly at the hearing, the exchange between Mr Matson, Counsel for the respondents, and the Bench took place as follows:
MR MATSON: 9 July 2021. And your Honour said that – so there’s currently a notice of appeal in QUD 83. So I hadn’t looked at 83 for a little while, and Mr del Villar said there’s a draft notice of appeal because your Honour said, “All right, okay, thank you.” And then I’m just wondering whether at the moment QD 83, at is stands, is ready to go to the Full Court. Is that right? In a sense that the appeal could be heard at the same time as the application for leave to appeal. And Mr del Villar said that, “We did not have nearly as many problems with the draft notice of appeal as with the in QD 356.” And your Honour said, “All right.” And accordingly case management orders were made to have the matter heard, the appeal and the issue as to the question of leave. So the matter was progressing, in my submission, and notwithstanding what has occurred in QUD 356, that Mr del Villar certainly gave no indication at that stage that he had all these issues with QD 83.
So if we want to talk about entering estoppel, it’s my submission that Mr del Villar had given an indication that, in fact, the respondents didn’t have any real issue with the draft notice of appeal as filed, and as far as non-compliance with orders, apart from the failure to file submissions, which, as I said, I apologise to the court for that. I was under the impression that Ms De Ferrari was filing those. There hasn’t been any noncompliance with orders in respect of QUD 83, so it’s my submission that Mr del Villar, as I stated earlier, has previously indicated to the court and to myself that he would indicate whether or not they’re going to take a point as to the question of whether leave is required for this appeal. Now, he hasn’t done so, and he continues to, I guess, be ambiguous on this – on this issue, but the authorities have been very generously provided by the court – I’m speaking specifically of the case of Hastwell v Gunning – not – Kott Gunning. Gunning.
HER HONOUR: Sorry, can you say that again? Please.
MR MATSON: Yes, your Honour. It’s the case that you raised at an earlier case management hearing, and I can provide you the – the spelling out. Hastwell, H-a-s-t-w-e-l-l.
HER HONOUR: Yes. Yes.
MR MATSON: The Kott, K-o-t-t, Gunning, G-u-n-n-i-n-g.
HER HONOUR: Thank you.
MR MATSON: [2021] FCAFC 70. That’s citing the cases of Talacko v Talacko [2010] FCA 239 per Ryan J and also the case of SZSNN v the Minister. It’s a migration case. There – [2013] FCA 1218. It’s the opinion Perry J. Now, your Honour, it has been on three separate occasions that Mr del Villar has given an assurance to the court and myself that they would indicate whether or not they are taking this point as to the question of leave.
HER HONOUR: Sorry, taking which point?
MR MATSON: Whether or not there is a requirement for leave for this appeal.
HER HONOUR: Well - - -
MR MATSON: And - - -
HER HONOUR: So, hang on, just let me understand. So your point – what’s your point, Mr Matson, about that issue?
MR MATSON: Well – well, my point about that is – is two-fold. One, as I referred to the earlier case of Jefferson Ford, there with Finkelstein J, there is an important question of lore here as to whether or not leave is required in the circumstances of this appeal, and I believe that is a question of law which needs to be resolved and which justifies this matter proceeding to the Full Court. Secondly, it is clear in my submission that Mr del Villar should be in a position to make that concession because the authorities speak loud and clear that there is no requirement for leave in – in this appeal, and I believe that it has been a strategic, I guess, denial or failure to, you know, follow through with the undertaking that he made to the court on two separate occasions – in fact, three separate occasions - - -
HER HONOUR: Sorry, I don’t know if there was actually an undertaking given by Mr del Villar. I don’t recall that.
MR MATSON: Well, I can take you to the transcripts, your Honour, if you would like me to.
HER HONOUR: I think you should. I mean, Mr del Villar, I presume you are saying you gave no undertaking?
MR DEL VILLAR: I certainly don’t recall giving any undertaking, and I will be making a submission that this is completely beside the point. There’s no merit in the argument. Why should whether it’s an appeal or not continue? No answer to that that my learned friend has provided.
HER HONOUR: Okay. So just let me – let me see if I can encapsulate what I understand to Mr Matson’s argument here. The court should not strike out Mr Matson’s application if there is a question of whether leave is actually required or whether he would be able to proceed and – or prosecute the appeal from the decision of White J as of right. That’s my understanding of what Mr Matson says is a key point for consideration. However, Mr Matson, my understanding of Mr del Villar’s case is that even if you had an appeal as of right, there’s no merit in it, and that this court is entitled to hear an application for strike out. That’s my understanding. Is that correct, Mr del Villar?
MR DEL VILLAR: Your Honour has encapsulated it well.
HER HONOUR: Thank you. All right. So, Mr Matson, do you understand what I’ve just said? Even if there was - - -
MR MATSON: I – yes, I - - -
HER HONOUR: - - - an issue about leave and maybe you were able to go directly to the Full Court, the respondent is saying there’s nothing in your appeal anyway. So I have power under the Federal Court Act to summarily dismiss either your application for leave to appeal or your appeal. That’s my understanding of the respondent’s position.
MR MATSON: Yes. So I understand that, your Honour, and it’s my submission that – and view that there is a real issue of law here to be resolved because Mr del Villar is not making the concession. That there is a question as to whether or not leave is necessary, and I believe that that is a question which should be determined by the – by the Full Court….
(transcript pp 14-16)
50 The point Mr Matson clearly seeks to make relates to:
whether he actually needs leave to appeal from the decision of the primary Judge, or whether he is entitled to appeal as of right; and
that the resolution of this question requires his application to be heard and determined by the Full Court rather than summarily dismissed.
51 Materially, s 24 of the Federal Court Act provides:
Appellate jurisdiction
(1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:
(a) appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court;
…
(1A) An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.
(1B) Subsection (1A) is subject to subsection (1C).
(1C) Leave to appeal under subsection (1A) is not required for an appeal from a judgment referred to in subsection (1) that is an interlocutory judgment:
(a) affecting the liberty of an individual; or
…
52 Section 24 (1C) of the Federal Court Act was recently considered by the Full Court in Hastwell v Kott Gunning [2021] FCAFC 70. There the applicant, Mr Hastwell, had commenced proceedings against his former employer, Kott Gunning, for, inter alia, unlawful bullying, harassment and discrimination. It emerged from privileged exchanges between Mr Hastwell and Kott Gunning that Mr Hastwell had earlier been diagnosed by a psychiatrist with various mental health disorders. Kott Gunning sought orders that Mr Hastwell be further examined by a psychiatrist of Kott Gunning’s choosing. Mr Hastwell resisted orders in such terms, relying on what he submitted was an invasion of his fundamental rights if he were compelled to submit to an involuntary psychiatric examination. Justice Jackson at first instance noted at [34] that, although the Federal Court did not have power to order a compulsory medical examination, there was a distinction between such an order, and an order that an action be stayed unless an applicant submitted to examination by a medical practitioner nominated by the respondent. Ultimately, his Honour held that, in circumstances where Mr Hastwell’s psychiatric condition was central to the remedies he sought, the trial would not be fair if Mr Hastwell was able to adduce medical evidence about relevant issues and Kott Gunning was not. Accordingly the proceedings were permanently stayed, with costs: Hastwell v Kott Gunning (No 5) [2020] FCA 621.
53 Mr Hastwell sought to appeal to the Full Court, and contended that leave to appeal was not required. Relevantly, Mr Hastwell contended that, if the primary judgment was considered to be interlocutory in nature, it affected the liberty of an individual, and accordingly leave to appeal was not required.
54 The Full Court noted at [16] that Mr Hastwell:
… attempted to distinguish the present case from Ryan J’s decision in Talacko v Talacko (2010) 183 FCR 297 where his Honour refused an application for leave to appeal from an order restraining a person from travelling outside Australia and said the following (at [41]-[43]):
41 In my view the reference in s 24(1C)(a) of the Federal Court Act to “liberty of the individual” is synonymous with “liberty of the subject”. Sub-section (1C) of the Federal Court Act was inserted by s 3 and Schedule 2 of the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth), the Bill for which was explained by the Attorney-General in his Second Reading speech as framed so that;
“Uncertainty surrounding appeal rights in relation to interlocutory judgments will be removed, so that the court’s time will no longer be spent unnecessarily hearing appeals from certain interlocutory decisions”.
That explanation supports a restrictive interpretation of the exception from the requirement to seek leave to appeal in respect of an interlocutory judgment affecting the liberty of an individual. An early legislative ancestor of the new provision seems to be s 1(1)(b) of the Supreme Court of Judicature (Procedure) Act 1894 (Imp) which provided that:
No appeal shall lie …
(b) without the leave of the judge or the Court of appeal from any interlocutory order or interlocutory judgment made or given by a judge, except in the following cases …
(i) when the liberty of the subject or the custody of infants is concerned
42. In Ryan v Attorney-General [1998] 3 VR 670, Ormiston JA expressed the view, at 672, that “no niggardly construction should be given to the expression ‘liberty of the subject’ a concept nurtured and protected by the common law for many centuries.” His Honour’s observations were directed at s 17A(4) of the Supreme Court Act 1986 (Vic), which is to the same effect as s 1(1)(b) of the Judicature Act just mentioned, and despite taking a broader view of it than the other members of the Court of Appeal, his Honour was not prepared to give the expression a reading as expansive as that for which the debtor contends in the present case. His Honour said, at 672:
But where the order from which the appeal is brought does affect the liberty of the subject, whether by direct incarceration or otherwise or where the order authorises the deprivation of a person’s liberty then, prima facie, the exception should apply to permit appeal without leave. These views seem to me consistent with those expressed by Murphy J in Marriner v Smorgon (a judgment concurred in for these purposes by Gobbo J and myself). That case related to a warrant whose effect had expired inasmuch as it had been executed and the appellant released from custody, so that Murphy J. was able to say that he was “not imprisoned, nor is he under threat of imprisonment, by reason of the warrant”: at 503. Moreover, as was said in the same judgment at 505, the expression must “be construed to encompass only cases where the personal liberty of a natural person is to be affected by the outcome of the appeal”
43. I consider that a similar approach to the construction of the corresponding new provision in the Federal Court Act compels the conclusion that the exception from the need to obtain leave to appeal is confined to orders which subject an individual to direct incarceration or other total deprivation of his or her physical liberty.
55 The Full Court concluded, in summary, that Mr Hastwell required leave to appeal because:
the order permanently staying the proceeding was interlocutory on any of the established tests; and
the order did not compel Mr Hastwell to undergo psychiatric examination nor was an order subjecting him to “direct incarceration or other total deprivation of his or her physical liberty”.
56 In particular, I note the following observations of their Honours in Hastwell:
20. As to whether the exception in s 24(1C)(a) of the Federal Court Act applies, the order was neither an order compelling Mr Hastwell to undergo the psychiatric examination, nor an order subjecting him to “direct incarceration or other total deprivation of his or her physical liberty”. He was not required to undergo the examination, but if he did not agree to undergo the examination, he could not continue the proceeding and he could not adduce his own medical evidence. The approach taken and the expression used in Talacko has been followed in numerous cases, including Peng Gao v Fair Work Ombudsman [2013] FCA 754 per Bromberg J (at [18]), SZSNN v Minister for Immigration and Border Protection [2013] FCA 1218; (2013) 217 FCR 171 per Perry J (at [26]), SZSXM v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1251 per Wigney J (at [17]) and SZSSJ v Minister for Home Affairs [2019] FCA 1149 per Katzmann J (at [28]).
21 Mr Hastwell relied on Perry J’s decision in SZSNN (at [27]) where her Honour questioned, without expressing a concluded view, whether the test in Talacko was too restrictive in the context of an appeal from a summary dismissal by the Federal Circuit Court of Australia of a judicial review application where the applicant was held in immigration detention. He similarly relies on Sami v Commonwealth [2018] FCA 1991 in which White J considered (at [37]) that the phrase “affecting the liberty of an individual” was probably not intended to be construed as strictly concerning the practical impact of a judgment but rather should include its character in an abstract sense as well. White J’s decision was also concerned with an applicant held in immigration detention.
22 Even on a less restrictive test than the one applied in Talacko, it is difficult to see how the primary judge’s order affects Mr Hastwell’s liberty. The order does not seek to compel or restrain Mr Hastwell from doing any act or thing. Rather it prevents the continuation of proceedings in circumstances where the Court is not satisfied that there can be a fair determination of the issues in dispute if Mr Hastwell does not submit to being medically examined by Kott Gunning’s nominated psychiatrist.
57 Turning now to the present case, there is stark contrast between the effect of the orders at first instance in Hastwell and the orders of the primary Judge giving summary judgment for the respondents. Unlike the applicant in Hastwell, Mr Matson is in involuntary detention pending surrender of him to the United States under the Extradition Act. The primary Judge found that he was lawfully in detention pursuant to s 19(9) of the Extradition Act (see [156]), and further observed:
156. … 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.
58 As Gleeson CJ pointed out in Vasiljkovic:
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.
35. The legislative provisions concerning remand, and bail, were considered by this Court in United Mexican States v Cabal. The practical implications of arrangements concerning an alleged offender's custody during the process of determining whether compliance with Australia's international obligations requires that the person be surrendered to the criminal justice system of a foreign State were discussed. In Barton v The Commonwealth, Mason J pointed out that "[d]etention inevitably is an incident in the process of extradition". Any form of involuntary detention, under any conditions, involves an interference with liberty. There was reference in argument to the plaintiff being kept in an ordinary prison. His liberty would be interfered with wherever he was kept against his will. Sending him, against his will, to Croatia for further custody and interrogation, even if he were on bail in the meantime, plainly interferes with his liberty. In DJL v Central Authority, Kirby J referred to extradition pursuant to international treaty obligations relating to criminal offenders as a paradigm of lawful removal of a citizen notwithstanding a citizen's basic right to live in Australia. So it is. What is more, it is removal by an executive act undertaken with legislative authority; not removal by judicial decision.
(emphasis added)
59 Similarly in Sami v Commonwealth of Australia [2018] FCA 1991, pursuant to s 39B of the Judiciary Act 1903 (Cth), an applicant non-citizen sought judicial review of a decision to refuse him a protection visa under the Migration Act 1958 (Cth). Davies J summarily dismissed the applicant’s originating application: Sami v The Commonwealth of Australia [2018] FCA 800. The applicant sought leave to appeal and an extension of time in which to appeal from the judgment of Davies J. Justice White J in Sami v Commonwealth of Australia [2018] FCA 1991 observed:
33. As is apparent from the terms of the claim which the applicant made in the originating application, the primary relief which he sought was an order restraining the Department of Home Affairs from continuing to hold him in detention. He also sought an interlocutory order directing the Department to release him from detention pending the determination of his application. At least prima facie, the summary dismissal of those applications is a judgment which affects the applicant’s liberty because their effect was to deny him the release from detention which he sought.
60 His Honour referred to the authorities of Talacko v Talacko and SZSNN, and continued:
37. It is possible that the term “affecting the liberty of an individual” in s 24(1C) has a narrower connotation than the counterpart term “when the liberty of the subject ... is concerned” in s 1(1)(b) of the Supreme Court of Judiciature (Procedure) Act 1894 (Imp) and in s 17A(4)(b)(i) of the Supreme Court Act 1986 (Vic) to which Ryan J referred in Talacko. That is to say, s 24(1C) may be more concerned with the practical impact of the judgment on the liberty of an individual rather than its character in an abstract sense. I doubt that this is an appropriate understanding as it seems improbable that the legislature intended that the question of whether leave is, or is not, required will turn on the close examination of the effect, in fact and in law, of the impact that the judgment in question on an applicant’s liberty. To my mind, it is more natural to understand the term “affecting the liberty of an individual” to mean something like “concerning the liberty of an individual”.
38. The judgment of Davies J of 1 June 2018 answers that description. Accordingly, I consider that the applicant does not require leave to appeal, and may appeal as of right. The only remaining question is whether he should be granted an extension of time in which to do so.
(emphasis added)
(see also Perry J in SZSNN v Minister for Immigration and Border Protection [2013] FCA 1218 at [27]).
61 Similarly to the proceedings in Sami, before the primary Judge Mr Matson sought extensive relief including orders invalidating his detention in custody pending surrender under the Extradition Act, and declarations concerning orders made and action taken referable to him under that Act.
62 In terms of s 24(1C) of the Federal Court Act, there is plainly a live issue in these proceedings as to whether Mr Matson requires leave to appeal. Similarly to Sami, it could be said that the judgment of the primary Judge in these proceedings answers the description of an interlocutory judgment affecting the liberty of an individual.
63 However, the immediate question before me is whether this means that the respondents’ summary judgment application should not be entertained by the Court, or dismissed so as to permit an appeal in terms of Mr Matson’s draft notice of appeal to proceed to hearing by the Full Court.
64 In my view, the existence of a live issue concerning s 24(1C) does not have this effect.
65 First, as Foster J observed in Wang v Anying Group Pty Ltd [2009] FCA 1500 at [43], in summary judgment applications the real question in every case is not so much whether there is any issue that could arguably go to trial, but rather whether there is any issue that should be permitted to go to trial. That this is so is plain from the terms of s 31A(2) of the Federal Court Act, which provides that the Court may give judgment for a respondent if satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding.
66 Second, I do not accept the proposition that if there is an unresolved issue of law arising from the primary judgment, this automatically justifies an appeal proceeding to the Full Court for hearing. Rather, as Gordon J said in Jefferson Ford at [131]:
… the existence of a real issue of law does not necessarily preclude summary judgment. This is so because, assuming that there is no relevant factual dispute (or if the relevance of the factual dispute depends, as in the instant case, on the resolution of the legal dispute), the court can generally hear and decide a disputed point of law without the need for a trial or evidentiary hearing. In such cases, the proper course for the court would be to accept submissions and hear argument from the parties in connection with the notice of motion hearing. Even under the earlier, different and more stringent test, “argument, perhaps even of an extensive kind” was permitted “to demonstrate that the case of [a party] is so clearly untenable that it cannot possible succeed”: General Steel Industries at 130. Once the court resolves the issue or issues of law, it will then be clear whether the opposing party has reasonable prospects of success and summary judgment can be granted or refused accordingly.
(emphasis added)
67 Similarly, in Jefferson Ford Finkelstein J observed:
23. In other words, the section requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party’s assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. There will be others where the opposing party has not been able to show that the asserted facts are likely to be established at a trial. On questions of law, the judge should conduct an inquiry into their merit, not for the purpose of resolving them (though this can be done — see Rosser v Austral Wine and Spirit Co Pty Ltd [1980] VR 313 at 320) and also not simply to determine whether the argument is hopeless, but in order to decide whether it is sufficiently strong to warrant a trial. If the judge is satisfied that he (or she) is able to resolve any contested legal issue at a summary hearing and without undue delay, it may be better all around if that be done. If not, then at least the merits must be tested. That will then give s 31A a substantial operation, which is what, it seems to me, was intended.
68 I also note the comment of Rares J in Jefferson Ford that:
45. …the power conferred by the section authorises the Court to make a decision summarily that there is no reasonable prospect that if a trial were to take place the claim or defence would succeed. The section requires a prediction of the outcome of a trial on the merits but is not an actual adjudication of those merits.
(emphasis added)
69 Ultimately, the question whether Mr Matson requires leave to appeal is not one which requires determination for the purposes of resolving the summary judgment application. The issue for consideration by me in terms of the summary judgment application concerns only the prospects of success of Mr Matson’s application. Indeed:
If Mr Matson requires leave to appeal from the decision of the primary Judge, a key issue for determination by this Court is whether the appeal has prospects of success: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398, Mentyn v Westpac Banking Corporation [2004] FCAFC 149 at [4]. Such a determination can only be made by reference to grounds in the draft notice of appeal on which the applicant proposes to rely. It is plainly open to the Court to summarily dismiss an application for leave to appeal on the basis that the grounds of appeal on which the applicant proposes to rely have no reasonable prospect of success: Matthews v Minister for Home Affairs [2020] FCAFC 146 at [4]; Pham v Secretary, Department of Employment & Workplace Relations [2007] FCAFC 179 at [15].
Similarly, if Mr Matson does not require leave to appeal, but rather can appeal as of right from the decision of the primary Judge, nonetheless the Court is empowered to give summary judgment to the respondents pursuant to s 31A of the Federal Court Act if the Court is satisfied that Mr Matson has no reasonable prospect of successfully prosecuting the appeal: see Buckby v Ark Energy Ltd [2019] FCA 611; Conde v Hunter [2009] FCA 1016.
70 Finally, if Mr Matson does not require leave to appeal from the decision of the primary Judge I am nonetheless empowered to determine the summary judgment application. This is because such an application is within the jurisdiction of a single judge under s 25(2B)(aa) of the Federal Court Act exercising the appellate jurisdiction of the Court: Ali v Chandler Macleod Group Ltd [2016] FCA 1234, Ali v Chandler Macleod Agency [2017] HCASL 328; Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773.
Draft grounds of appeal
71 I have already found that draft grounds of appeal 1, 2, 3, 4, 5, 14, 28, 39, 42 and 44 lack merit. In that light, and in the absence of further submissions in respect of these grounds, I consider that they have no prospects of success.
72 I will now turn to the remaining draft grounds of appeal.
Draft grounds of appeal 6, 7, 8, 9, 10 and 11
73 Draft grounds of appeal 6, 7, 8, 9, 10 and 11 relate to the primary Judge’s findings in the context of Proposed Orders 5 and 6, and specifically the allegations made by Mr Matson with respect to third party fraud. These are:
6. The primary Judge erred under the subheading “The present action” at paragraph 44 by finding that:
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.
On the basis that the Appellant had in fact raised not only the locating of two additional documents not previously disclosed to him, but had claimed the very serious allegation of “third-party fraud” on the basis that Commonwealth Government officials employed at the Commonwealth Attorney-General’s Department had deliberate withheld documents (thereby omitting relevant material from decision-makers throughout the entire extradition process) and in furtherance of the “third-party fraud”, the subsequent deliberate destruction of the Appellant’s files and documents by Commonwealth Government officials employed at the Commonwealth Attorney-General’s Department which files and documents were stored on the Attorney-General’s Department Document record management system called “Content Manager”.
7. The primary Judge erred under the subheading “Proposed Order 6 - the validity of the previous extradition decisions" – “Review of the s 16 decision” at paragraph [96] by finding that:
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.
On the basis that the Appellant had raised the claim of “third-party fraud” at Ground 6(e) in in his Proposed FAOA dated 6 January 2021, which claim of “third-party fraud” warranted granting leave to the Appellant to file his proposed FAOA, and precluded the primary Judge’s application of the principle of res judicata against Ground 6 of the Appellant’s Proposed FAOA dated 6 January 2021.
8. The primary Judge erred under the subheading “Proposed Order 6 – the validity of the previous extradition decisions” – “Review of the s 19 decision” at paragraph [97] by finding that:
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.
On the basis that the Appellant had raised the claim of “third-party fraud” at Ground 6(e) in in his Proposed FAOA dated 6 January 2021, which claim of “third-party fraud” warranted granting leave to the Appellant to file his proposed FAOA, and precluded the primary Judge’s application of the principle of res judicata against Ground 6 of the Appellant’s Proposed FAOA dated 6 January 2021.
9. The primary Judge erred under the subheading “Proposed Order 6 – the validity of the previous extradition decisions” – “Review of the s 12 decision” at paragraph [100] by finding that:
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.
On the basis that the Appellant had raised the claim of “third-party fraud” at Ground 6(e) in in his Proposed FAOA dated 6 January 2021, which claim of “third-party fraud” warranted granting leave to the Appellant to file his proposed FAOA, and precluded the primary Judge’s application of the principle of Anshun estoppel and or abuse of the Court’s process against Ground 6 of the Appellant’s Proposed FAOA dated 6 January 2021.
10. The primary Judge erred under the subheading “Proposed Order 6 – the validity of the previous extradition decisions” – “Review of the s 22 decision” at paragraph [113] by finding that:
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.
On the basis that the Appellant had raised the claim of “third-party fraud” at Ground 6(e) in in his Proposed FAOA dated 6 January 2021, which claim of “third-party fraud” warranted granting leave to the Appellant to file his proposed FAOA, and precluded the primary Judge’s application of the principle of res judicata and or abuse of the Court’s process against Ground 6 of the Appellant’s Proposed FAOA dated 6 January 2021. It is noted that although the “Withheld Documents” referred to were not raised in support of a claim of “third-party fraud” in matter QUD107/2019, as the evidence giving rise to a claim of “third-party fraud” had not come to light until that time (until September 2020), namely he evidence of the deliberate destruction of files and documents in relation to the Appellant by Commonwealth Government officials employed at the Commonwealth Attorney-General’s Department, and it was therefore open to the Appellant, in view of the significance of the “third-party fraud” issue to raise the allegation of “third-party fraud” in separate proceedings, namely QUD254/2020, rather than attempt to re-open QUD107/2019, which matter had already been the subject of a number of re-opening applications based on other separate issues.
11. The primary Judge erred under the subheading “Proposed Order 6 – the validity of the previous extradition decisions” – “Review of the s 22 decision” at paragraph [113] by finding that:
…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.
On the basis that although the “Withheld Documents” had been raised in QUD107/2019 in support of a claim of denial a denial of procedural fairness, the “Withheld Documents” had not raised in support of a claim of “third-party fraud” in matter QUD107/2019, as the evidence giving rise to a claim of “third-party fraud” had not come to light until that time (until September 2020), namely he evidence of the deliberate destruction of files and documents in relation to the Appellant by Commonwealth Government officials employed at the Commonwealth Attorney-General’s Department, and it was therefore open to the Appellant, in view of the significance of the “third-party fraud” issue, to raise the allegation of “third-party fraud” in separate proceedings, namely QUD254/2020, rather than attempt to re-open QUD107/2019, which matter had already been the subject of a number of re-opening applications based on other separate issues. It was an unreasonable finding by the primary Judge that the differences in the grounds on which the Appellant now seeks to challenge he decision are immaterial.
74 In respect of these draft grounds of appeal, Mr Matson clearly cavils with the reasoning and findings of the primary Judge in respect of Proposed Orders 5 and 6, and the validity of decisions made under ss 12, 16(1), 19, 22 and 23 of the Extradition Act. This fact is identified by the respondents at [25] of their written submissions. As the primary Judge recognised at [116] – [149] of his reasons, and did so correctly in my opinion, these are grounds that should have been raised, or had been raised, in previous proceedings in this Court. It necessarily follows that where in the primary proceedings Mr Matson sought to challenge the correctness or validity of the decisions made under those sections of the Extradition Act, the doctrine of res judicata precluded him from doing so.
75 This state of affairs was identified by the primary Judge at [107] and [111], noting that Mr Matson had already challenged the validity of the decisions made under ss 22 and 23 of the Extradition Act on numerous grounds. As the respondents submit, these grounds were referable to factors including:
the COVID-19 pandemic;
breaches of implied constitutional rights;
the Extradition Act was not a law with respect to external affairs; and
breaches of his rights under the ICCPR.
76 As the primary Judge observed, the doctrines of abuse of process and Anshun estoppel apply to the proposed grounds of appeal agitated by Mr Matson to the extent that res judicata does not. I am inclined to agree with his Honour in circumstances where:
In the context of abuse of process, the orders sought by Mr Matson before the primary Judge were plainly inconsistent with the decision of First Full Court decision, as well as the 2020 Rangiah J Decision because:
• for Mr Matson to once again prosecute the validity of the decisions made under ss 22 and 23 of the Extradition Act would simply be to “litigate anew a case which has already been disposed of by earlier proceedings” per Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ);
• a writ of habeas corpus would contradict the First Full Court Decision given that Mr Matson’s detention was found to be lawful;
• the declaration sought by Mr Matson to the effect that his surrender in accordance with the surrender warrant was unlawful would contradict the 2020 Rangiah J Decision; and
• any order preventing the surrender of Mr Matson or the execution of the warrant under s 23 would contradict the findings of Rangiah J.
In respect of principles of Anshun estoppel, his Honour found that the doctrine applied to contentions made by the Mr Matson in relation to the decision made under s 12 of the Extradition Act, considerations relating to the COVID-19 pandemic, and the effects of the decision in Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3. This is because these contentions had already been raised, or ought to have been raised in previous proceedings.
77 It was entirely reasonable for the primary Judge to conclude at [120] that it was not reasonably arguable that the COVID‑19 pandemic could have had the effect of rendering invalid any of the steps in relation to Mr Matson’s extradition taken before its onset.
78 In these draft grounds of appeal Mr Matson relevantly contends that the primary Judge failed to address allegations of, inter alia, deliberate withholding and destruction of files and documents by the respondent. However in relation to alleged “third party fraud”, the primary Judge at [86] identified that:
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”.
79 At [92] his Honour found that the “Decision Invalidity Ground” referable to Mr Matson’s claim of third party fraud had been the subject of agitation by Mr Matson in previous proceedings, and further that it had been the subject of decisions in this Court. Plainly, his Honour was correct. In particular, I note the following findings in the 2020 Rangiah J Decision at [292]-[295] to that effect:
292. An alternative way of viewing Grounds (k), (l), (m), (n) and (rr) is that Mr Matson may be alleging that various Departmental officers perpetrated a fraud on the Attorney-General that vitiates the Surrender Decision.
293. In SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189, the High Court considered an allegation that the decision of a migration tribunal was affected by a fraud on a tribunal committed by the appellants’ migration advisor. The migration advisor had fraudulently dissuaded them from attending the tribunal hearing, and the tribunal then made a decision adverse to them in their absence. The fraud was clearly established. The High Court held that, while the tribunal had undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud, it was disabled from the due discharge of its imperative statutory functions, including the requirement to provide natural justice.
294. Mr Matson alleges in a number of affidavits that the Department’s handling of his FOI Requests was a “systematic and deliberate methodology” that amounted to “illegal conduct, breach of their sworn duty, an abuse of power, executive lawlessness and a breach of the rule of law”. The difficulty for Mr Matson in this case is that his allegations and the evidence in support of these allegations go nowhere near establishing fraudulent conduct on the part of the Departmental officers.
295. The allegations of bad faith in Grounds (k), (l), (m), (n) and (rr) are without merit. Mr Matson should not be permitted to rely upon these grounds.
80 Ultimately, any claims by Mr Matson of third party fraud relevant to the decisions made under the Extradition Act are barred by operation of principles of res judicata, Anshun estoppel and abuse of process.
81 Draft grounds of appeal 6, 7, 8, 9, 10 and 11 have no prospects of success.
Draft grounds of appeal 12 and 13
82 These draft grounds of appeal are as follows:
12. The primary Judge erred under the subheading "Proposed Order 6 - the validity of the previous extradition decisions" - "Proposed Order 6 in the 2PFAOA" at paragraph [114] by finding that:
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 sub-para (g). They do not require separate consideration ...
On the basis that the addition and removal of some particulars and the relocation of some particulars into a new sub-para (g) did require separate consideration.
13. The primary Judge erred under the subheading "Proposed Order 6 - the validity of the previous extradition decisions" - "Conclusion on Proposed Order 6" at paragraph [115] by finding that:
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...
On the basis that the whole of the claim should not have been struck out.
83 In respect of these draft grounds of appeal I note:
In light of the apparently labyrinthine form of pleading by Mr Matson in the primary proceedings, as described by the primary Judge, I am satisfied that his Honour has endeavoured to accurately identify the nature of the relief claimed. I further note that Mr Matson takes no issue with the manner in which the primary Judge identified the “Second Proposed Further Amended Originating Application” (the 2PFAOA) at [5], or the explanation of orders ultimately sought by Mr Matson.
The findings of his Honour at [114] and [115] were based on the application of principles of res judicata, Anshun estoppel and abuse of process, considering the relief claimed by Mr Matson against the background of earlier proceedings.
In draft ground of appeal 12, Mr Matson simply cavils with the finding of the primary Judge at [114] in respect of the addition, removal and relocation of particulars from earlier versions of Mr Matson’s originating process into a new paragraph in the 2PFAOA.
In draft ground of appeal 13, Mr Matson simply cavils with the finding of the primary Judge at [115] without further particularisation.
No reason is pleaded by Mr Matson for why his Honour allegedly erred at [114] and [115].
No submissions have been made by Mr Matson in respect of these grounds.
84 These draft grounds of appeal have no prospect of success.
Draft grounds of appeal 15 and 24
85 These draft grounds of appeal are as follows:
15. The primary Judge erred under the subheading "Proposed Order 1 - the surrender of the applicant to the USA" at paragraph [118] by finding that:
As is apparent, the applicant asserts three implied constitutional rights...
On the basis that plainly the Appellant was asserting five implied constitutional rights rather than three.
24. The primary Judge erred under the subheading "The asserted constitutional implied rights" at paragraph [140] by finding that:
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. 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.
On the basis that the Appellant's claimed constitutional implied rights, which numbered five not three, were not considered on their merits by Rangiah J in QUD107/2019, and the Appellant was not permitted to file written submissions in support of those grounds, so as was respectfully submitted to the primary Judge, he was permitted to consider the Appellant's claimed constitutional implied rights under the Constitution, and they are plainly not subject to res judicata, as the Appellant's claimed constitutional implied rights have not been determined by a competent court, and therefore should have been considered at a proper hearing before the primary Judge.
86 Despite Mr Matson’s claim that he had asserted five implied constitutional rights (rather than the three implied constitutional rights to which his Honour referred), he does not identify them in his draft notice of appeal. In 2020 Rangiah J Decision, his Honour identified implied constitutional rights claimed by Mr Matson as infringed, as:
342. … 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”…
87 The primary Judge noted at [137]:
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] HCA 34; (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)
88 At [139] the primary Judge referred to the 2020 Rangiah J Decision at [342], and concluded that Mr Matson sought to re-agitate a claim on which he had failed before Rangiah J. His Honour concluded at [140] that Mr Matson’s claimed constitutional implied rights had become subject to res judicata.
89 In the absence of identification by Mr Matson of additional implied constitutional rights not subject to previous consideration by Rangiah J, those draft grounds of appeal have no prospects of success. In any event, it is surely the case that the unidentified rights claimed by Mr Matson to have been raised before the primary Judge, should have been raised in earlier proceedings (in particular before Rangiah J), and accordingly would be subject to Anshun estoppel.
90 In my view these draft grounds of appeal have no prospect of success.
Draft grounds of appeal 16, 19, 20, 21, 26, 32, 33, 34, 35, 36, 43
91 In these draft grounds of appeal Mr Matson claimed (inter alia) error on the part of his Honour in not recognising the error of the Attorney-General not to revoke, reconsider and remake the existing s 22 surrender documents in circumstances of the COVID-19 pandemic.
92 These draft grounds of appeal are as follows:
16. The primary Judge erred under the subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The COVID-19 pandemic" at paragraph [120] by finding that:
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 it's 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 ever arisen. However, the applicant sought to rely on it as a changed circumstances which would make the enforcement of the Surrender Warrant unlawful.
On the basis that the Appellant had submitted that the s 22 decision was unlawful on the basis that the Honourable Christian Porter M.P. had failed to revoke, reconsider and remake the existing s 22 surrender determination, in circumstances where the COVID-19 pandemic in the USA obliged the Attorney-General both morally and legally to do so.
19. The primary Judge further erred under subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The applicant's previous reliance on the ICCPR" at paragraph [131] by finding that:
... 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
On the basis that the COVID-19 pandemic was not, and could not attack the decision of the Honourable Greg Hunt M.P. dated 1 February 2019, because the COVID-19 pandemic occurred after the decision. It was a situation where COVID-19 gave rise to grounds to justify a judicial review application of the decision of the Honourable Christian Porter M.P. Attorney-General to decline to revoke, reconsider and remake the existing s 22 surrender determination. The option of seeking to reopen QUD107/2019 (an application reviewing the decision of the Honourable Greg Hunt M.P.) on the basis of the circumstances created by the COVID-19 pandemic, clearly could not have been considered in the same way by Justice Rangiah.
20. The primary Judge erred under the subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The applicant's previous reliance on the ICCPR" at paragraph [132] by finding that:
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 Actionl07/2019; 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 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
On the basis that the issue of COVID-19 in the USA and the Attorney-General's decision to decline to revoke, reconsider and remake the existing s 22 surrender decision, only came to light after the decision of the Honourable Justice Rangiah had been handed down in QUD107/2019, so the issue of COVID-19 in the USA and the Attorney-General's decision to decline to revoke, reconsider and remake the existing s 22 surrender decision because of COVID-19 was not saved up, it was appropriately raised before Justice White in QUD254/2020, as soon as was reasonably practicable in light of the Appellant's incarceration and intervening Christmas break period from when the Appellant received the letter from the Honourable Christian Porter M.P. advising he has no power to reconsider or remake an s 22 determination made under the Extradition Act 1988 (Cth). The Appellant was entitled to have the proceeding reopened because of the fresh evidence of the Attorney-General’s letter and because of the fact that the Attorney-General incorrectly viewed and misapprehended his power to reconsider or remake an s 22 determination made under the Extradition Act 1988 (Cth).
21. The primary Judge erred under the subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The applicant's previous reliance on the ICCPR" at paragraph [132] by finding that:
Even if 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
On the basis that the Appellant was legally entitled to raise the issue of COVID-19 in the USA and the Attorney-General's decision to decline to revoke, reconsider and remake the existing s 22 surrender decision, and that seeking relief on that basis was not an abuse of process, it was an important legal question to be determined at a time of a global pandemic, and moreover, in circumstances where the first legal officer of the Commonwealth has incorrectly viewed and misapprehended his power to reconsider or remake an s 22 determination made under the Extradition Act 1988 (Cth).
26. The primary Judge further erred under the subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The asserted constitutional implied rights" at paragraph [145] by finding that:
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.
On the basis that the claims made by the Appellant before the primary Judge in both the Appellant's originating application dated 28 July 2020 and filed 4 August 2020 and his amended application dated 6 January 2021 and filed 11 January 2021, are not so closely connected with his previous claims, which previous claims to constitutional implied rights in QUD107/2019 plainly made no reference to COVID-19, or to the power of the AttorneyGeneral to revoke, reconsider and remake an s 22 surrender determination under the Extradition Act 1988 (Cth). The Appellant's asserted constitutional implied rights were not consider on their merits by Justice Rangiah in QUD107/2019, and therefore none of the Appellant's asserted constitutional implied rights claimed in QUD254/2020 can be subject to the doctrines or principles of res judicata or Anshun estoppel.
32. The primary Judge erred under the subheading “the applicant’s 6 January 2021 application to reopen” – “the applicable principles” at paragraph [179] by finding that:
…the applicant’s present application seems to be in the first and fourth of these categories.
On the basis that the Appellant made it clear in his oral submissions during the 4 February hearing that it was also the inadvertent error of the Attorney-General to take such a course.
33. The primary Judge erred under the subheading “the applicant’s 6 January 2021 application to reopen” – “Consideration of reopening with respect to the 2PFAOA” at paragraph [189] by finding that:
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.
On the basis that the such an argument did have prospects for success, as the existing decision could be found invalid, on the basis that the Honourable Christian Porter M.P., Attorney-General’s failure to revoke, reconsider and remake the existing s 22 Decision, in circumstances where he was morally and legally obliged to do so.
34. The primary Judge erred under the subheading “the applicant’s 6 January 2021 application to reopen” – “Consideration of reopening with respect to the 2PFAOA” at paragraph [190] by finding that:
… The matter contained in the proposed [7(e)] cannot have the effect of making the claim for Proposed Order 7 reasonably arguable.
On the basis that if the respondent’s submission about the Attorney-General not having the power to revoke, reconsider and remake a s 22 determination under the Extradition Act 1988 (Cth) is correct, the Appellant’s matter raised at Proposed Ground 7(e) could make the claim for Proposed Order 7 reasonably arguable.
35. The primary Judge erred under the subheading “the applicant’s 6 January 2021 application to reopen” – “Consideration of reopening with respect to the 2PFAOA” at paragraph [191] by finding that:
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:[at 14]…
On the basis that the primary Judge failed to consider that the Attorney-General could be compelled to exercise it, which is supported by the words stated by Emmett J at para 14, namely "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" [emphasis added] because clearly not considering the COVID-19 pandemic in the USA, on any reasonable view, cannot be considered exercising the discretion in "good faith", moreover, if the Attorney-General was making as 22 Decision today, he would have to consider the effect of COVID-19 in making a surrender decision not only under s 22(3)(f) but also under Article V of the Treaty (required to be considered under s 22(3)(e) of the Extradition Act 1988 (Cth) as Article V of the Treaty requires that the Attorney-General form the opinion or the requisite state of satisfaction that surrender of the person is "proper to do so" in the circumstances of the individual case, so clearly COVID-19 would have to be considered in exercising the discretion under s 22, and therefore not only be compelled to exercise it, but also to exercise it in the Appellant's favour, particularly as the Act and Treaty envisage refusal of Australian citizens in certain circumstances and provides an option for the person to be prosecuted in Australia, namely Article V(l) and (2) of the USA/Australia Treaty. The primary Judge erred in not referring or considering the issue of Article V of the Treaty which the Appellant had brought to the primary Judge's attention. Clearly, the Appellant's claim for Proposed Order 9 was reasonably arguable.
36. The primary Judge erred under the subheading “the applicant’s 6 January 2021 application to reopen” – “Consideration of reopening with respect to the 2PFAOA” at paragraph [192] by finding that:
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).
On the basis that it is plainly not difficult to see how the matters on which the Appellant relies, namely COVID-19, the most deadly pandemic in known history, could without question compel the revocation of an earlier surrender determination. Moreover, again the primary Judge has misconstrued s 26(5) and (6) and attempted to bolster a weak judgment with irrelevant sections of the Act, that have nothing whatsoever to do with the inherent power of the Attorney-General to revoke, reconsider and remake an existing s 22 Decision.
43. The primary Judge further erred under the subheading "A second application to reopen" at paragraph [206] by finding that:
There comes a time when the interests of justice require finality. That time has been reached
On the basis that clearly the interests of justice required the reopening and the issue of the Attorney-General's failure to revoke, reconsider and remake the existing s 22 Decision, particularly in circumstances where world is in the middle of the COVID-19 pandemic and the USA is the worst affected country on the planet, and where the first law Officer of the Commonwealth has misunderstood his power under the Extradition Act 1988 (Cth), and should be compelled to revoke, reconsider and remake the existing s 22 Decision as an Indigenous Australian's life and/or health is unnecessarily at risk.
93 At the hearing Mr Matson submitted that there was a live question before the Court as to whether the Attorney-General has power under s 22 of the Extradition Act to reconsider, revoke and remake a surrender determination. He spoke at length in this regard. His oral submissions included the following:
… Now, that is a question which has not been considered by the High Court or by the Full Court before, notwithstanding the fact that there has been a High Court authority referring to cases where the Attorney-General has previously made such a decision. So notwithstanding that Mr del Villar says that the Act doesn’t indicate or support any assertion that there is such a power, this is a question of law which warrants the dismissal of the summary application, because it is an important question of law. Extradition is certainly in the public interest, at this point in time, no doubt because of some of the cases of which we would all be aware, including that of Julian Assange, etcetera.
There is a question as to whether or not the Minister has such a power, and that is – if we look at the draft notice of appeal, the majority of the grounds that are raised are specifically in relation to that issue. And it’s my submission that – without going into a full-blown argument on the merits of those questions – of those grounds of appeal – in circumstances where White J found that the principle of Anshun estoppel prohibited me raising any arguments in respect of COVID-19, the issue of whether or not the Minister himself misunderstood or misconceived or misapprehended his powers under the Act – that evidence and that argument was only ceded after the decision of Rangiah J had been handed down.
And it’s my submission that the principles of Anshun estoppel surely can’t apply to an argument that has only – can only be conceded and be ceded after the decision of Rangiah J was handed down. So it’s, in my view, a situation where COVID-19 was an escalating issue. I did seek a stay before Rangiah J to allow the Attorney-General – the former Attorney-General, the Honourable Christian Porter – I sought a stay to allow him the opportunity to make his decision. Rangiah J, in his wisdom, declined that stay application and proceeded to judgment. Now, post that judgment, a letter was received by me by the Honourable Christian Porter, which I have right here, and he clearly says that he has no power to – I appreciate – he appreciates the time that I’ve taken to bring this matter to his attention:
…however, I do not have the power to remake or reconsider a surrender determination made under section 22 of the Extradition Act.
Now, it was even in White Js finding that he found that he likely – that Christian Porter likely erroneously viewed his powers. Now, in circumstances where the highest legal officer of the Commonwealth erroneously viewed his powers under the Act is a question of law – a real issue of law that needs to be resolved and warrants the dismissal of this summary application.
(transcript pp 16-17)
94 Mr Matson continued:
Well, the error was – and, as I said, these are canvassed across a number of grounds in the draft notice of appeal – but if, for example, I can refer you to ground 20 – and it may be helpful if I refer to the paragraph of White J – paragraph 132 – where he said:
In my view, the claims which the applicant now makes in reliance of 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.
That’s the matter of Rangiah J:
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 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.
Now, his Honour erred there on the basis that the issue of COVID-19 in the USA and the Attorney-General’s decision to decline to revoke, reconsider or remake the existing section surrender decision only came to light after the decision of Rangiah J had been handed down. So the issue of COVID-19 in the USA and the Attorney-General’s decision to decline to revoke, reconsider and remake the existing section 22 surrender decision because of COVID-19 was not saved up. It was appropriately raised before White J as soon as was reasonably practical in light of my incarceration and the intervening Christmas break period when I received the letter from the Honourable Christian Porter advising he has no power to reconsider or remake a section 22 determination under the Extradition Act. I was entitled to have the proceeding reopened because of the fresh evidence of the Attorney-General’s letter and because of the fact that the Attorney-General incorrectly viewed and misapprehended his power to reconsider or remake a section 22 determination.
And it’s my submission, your Honour, that the Honourable Christian Porter, by erroneous viewing his power, never actually turned his mind to the question of whether or not COVID-19 would warrant further representations or a reconsideration of the existing surrender decision, so he never turned his mind to the question, because he viewed that he had no power. So he made the decision that he had no power to reconsider, so he never actually turned his mind to the question, and it’s my submission that that evidence of the letter from Mr Porter and the development of this failure to properly consider what can only be considered a very serious issue, namely, a global pandemic, which – I understand that Mr del Villar has previously made the submission that, “Well, COVID-19 – if it had have existed at the time of the original surrender decision, it wouldn’t have had to have been considered. There was no – there’s no basis in the legislation to support that there was an obligation upon the Minister to consider COVID-19.” Now, in my submission, that is a ridiculous submission. He relies – and White J himself refers to the case of Rivera as authority for the proposition that – and I will just work my way through to that case, your Honour.
(transcript pp 18-19)
95 Mr Matson then referred to draft ground of appeal 35 and submitted:
Now it’s those final words, your Honour, that the matter is:
provided that the discretion is exercised in good faith and consistently with the objects, scope and purpose of the Act.
Which I wish to emphasise and labour because it is my submission that if for example a section 22 decision was to be made today that for the discretion to be exercised in good faith and consistent with the objects, and purpose, and scope of the Act that there would have to be advice given in respect of COVID-19 and any associated risks and that is not just in what would be considered under section 22(3)(f) which was specifically the unfettered discretion that was referred to there in the case of Rivera. But we also have Article V of the Treaty.
Now, there has been Full Court discussions about Article V of the Treaty and I’m going to refer your Honour to the case of Lobban v Minister for Justice, that’s L-o-b-b-a-n v Minister for Justice [2016] FCAFC 109 at paragraphs 83 to 106. Now, your Honour, through those paragraphs Charlesworth J she does a very, very, what I would consider accurate appraisal or overview of Article V of the Treaty and its obligations and it’s my submission that the object, scope, and purpose of the Act are to ensure that the Treaty requirements are upheld and accorded to by both the USA and Australia.
And it’s my submission, your Honour, that if you look at the wording of Article V of the Treaty, it says at paragraph 1 of Article V, that:
Neither of the contracting parties shall be bound to deliver up its own nationals under this Treaty but the executive authority of each contracting power shall have the power to deliver them up if in its discretion is considers that it is proper to do so.
Now it’s those words “proper to do so,” which is discussed by Charlesworth J there in the case of Lobban and she is of the opinion that there is a correlating power under section 22(3)(f) where if there was a circumstance where the interests of the person were affected that that would have to be considered. And it’s my submission that it would be an unreasonable exercise of the discretion if proper consideration isn’t given to matters that would have a direct impact on the person and I couldn’t personally think of a more poignant example of an example of where there is a circumstance that would warrant, circumstances that would warrant such consideration under Article V and under section 22(3)(f) as a global pandemic, which was absolutely ripping through the United States at that point in time when the Honourable Christian Porter declined to reconsider or revoke.
Now, through those paragraphs, your Honour, it’s my submission that Justice White erred in just accepting the submission by Mr Del Villar that simply because in Rivera they had found that any matters could be taken into account or no matter, but so that was an error there by White J by finding, by just accepting that submission. Because as I have said that in circumstances of a global pandemic, it could not be said that the decision could be exercised in good faith both under Article V of the Treaty and under section 22 that you could say that the process of reasoning to make it a reasonable exercise of the discretion without any advice on the COVID-19 pandemic and its very real risks, it’s my submission that there was an obligation that it be reconsidered in those circumstances.
And as I said, I don’t believe that, I think it’s clear the available inference is that because Justice – because Christian Porter was of the opinion that he had no power to make this reconsideration or remake the decision, that he actually never turned his mind to this absolutely critical question which was put before him and I believe that as I said, that if a surrender decision, if COVID-19 existed when the surrender decision was made in my case there would be an obligation for there to be legal advice and medical advice as to the associated risks both under Article V of the Treaty and under section 22(3)(f), the general discretion.
And I will just quickly refer to paragraph 59 of the legal advice that was put before the Minister in my surrender decision process.
…
MR MATSON: Maybe Mr del Villar – but the point I try to labour here, your Honour, is that under the advice provided at article V of the treaty, it says here that:
As a matter of long-standing policy, Australia does not refuse extradition on the basis of nationality alone and we consider there to be no basis for departing from that position in this case. This is a police position that Australia shares with other like-minded countries, such as the United Kingdom, Canada and the US, and the department does not consider that there is any particular circumstance in respect to Mr Matson which would cause a deviation from this policy.
Now, clearly, this advice was provided prior to the pandemic, but the point that I make is that if the COVID pandemic had existed at that time, or if the surrender decision was to be made today, there would almost certainly, in my submission, have to be some advice and it would be considered a circumstance that would warrant Australia taking a diversion from that long-standing policy position. Because the terms of article V of the treaty are very clear, it says:
That the contracting party shall have the power to deliver them up if, in its discretion, it considers that it is proper to do so.
And in circumstances where we have a global pandemic and where there is the availability to resolve these matters via video link, etcetera, it is a circumstance where the question becomes was it proper to do so? And this was a significant development, it was brought to the Attorney-General’s attention, Rangiah J handed his decision down. So Christian Porter’s misapprehension of the law, as the principal legal officer of the Commonwealth ..... that. So we need to understand that Rangiah J didn’t ever consider whether or not he had the power to revoke or reconsider. So Mr del Villar’s argument about res judicata, that falls away. It wasn’t previously – there has been no previous decision made by any court on this question. The principles of Anshun estoppel, they fall away, with respect, Mr del Villar, because there was no way for me to raise this issue before Rangiah J.
…
MR MATSON: The error of Mr Porter happened after Rangiah’s decision, so Anshun estoppel falls away. And as far as the issue of abuse of process, he – the submissions of the respondent are that the doctrine of abuse of process is inherently broader than res judicata or estoppel, it’s capable of application in any circumstance in which the use of the court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. Well, in response to that, I would say that these are very important legal questions which have been brought before the court and I don’t see in any way in which it would be unjustifiably oppressive or bring the administration of justice into disrepute for the Full Court to consider whether or not there was an obligation for Mr Porter to properly consider his powers under the Act and consider whether or not the COVID-19 pandemic warranted or obliged a reconsideration and revocation of the existing surrender decision.
And going further or a little bit deeper into the submissions of the respondent in respect of abuse of process, Mr del Villar says that:
Thus, making a claim or raising an issue which ought reasonably to have been made or raised for determination in an earlier proceeding can constitute an abuse of process, even if the earlier proceeding might not have given rise to an estoppel.
Well, once again, the submission there is that I should have raised this issue before Rangiah J; that wasn’t possible. This letter is dated December of 2020 and the decision of Rangiah was handed down in October. So, further, it’s an abuse of process, says Mr Del Villar:
…that to litigate anew a case which has already been disposed of by earlier proceedings.
Well, once again, this issue has not been considered by Rangiah J, it was not considered by White J and it’s my submission that this is a very important question of law which is warranted to dismiss this summary application, which I believe is vexatious, and it should be considered by the appeals court…
(transcript pp 21-24)
96 Addressing these submissions, the respondents submitted in summary:
Mr Matson’s submissions should be understood in light of the comments of the primary Judge at [182]-[192];
Mr Matson’s assertion that a decision made by the Attorney-General in February 2019 was somehow invalidated by a failure on the part of the Attorney-General to later reconsider that decision in December 2020 is simply implausible. There is no textual justification for that view;
even if the Attorney-General had a power to reconsider or revoke the relevant decision, the existence of that power could not affect the validity of the original surrender decision; and
the Minister is given a wide discretion by the Extradition Act to make surrender determinations pursuant to s 22 of that Act, which discretion is unfettered.
97 Section 22 of the Extradition Act materially provides:
…
(3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:
(a) the Attorney-General is satisfied that there is no extradition objection in relation to the offence; and
(b) the Attorney-General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture; and
(c) where the offence is punishable by a penalty of death--by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable:
(i) the person will not be tried for the offence;
(ii) if the person is tried for the offence, the death penalty will not be imposed on the person;
(iii) if the death penalty is imposed on the person, it will not be carried out; and
(d) the extradition country concerned has given a speciality assurance in relation to the person; and
(e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:
(i) surrender of the person in relation to the offence shall be refused; or
(ii) surrender of the person in relation to the offence may be refused;
in certain circumstances--the Attorney-General is satisfied:
(iii) where subparagraph (i) applies--that the circumstances do not exist; or
(iv) where subparagraph (ii) applies--either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and
(f) the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.
(emphasis added)
98 The unfettered discretion of the Attorney-General in exercising powers under s 22 was recognised in such cases as Rivera v Minister for Justice and Customs [2007] FCAFC 123, (2007) 160 FCR 115 where Emmett J (with whom Conti J agreed) observed:
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.
(emphasis added)
99 This statement was subsequently adopted by Middleton and Wigney JJ in Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156 where their Honours said:
151. It follows that the Minister is not bound to take any particular matter into account in the exercise of his general discretion in s 22(3)(f) of the Act. The fact that a particular matter is the subject of a submission or representation does not mean that the Minister is bound to consider it. It is entirely a matter for the Minister to decide whether to take any such submission into account and, if so, in what way: Brock v Minister for Home Affairs [2010] FCA 1301 at [63] (Foster J – an appeal from Foster J was dismissed). There is no obligation to accept any particular submission: Foster v Attorney General (Cth) (1998) 158 ALR 394 at 413 (Spender J – an appeal from Spender J was allowed but in relation to an unrelated issue). On the other hand, if the Minister does take a submission into account, it does not mean that it thereby becomes a mandatory consideration.
(emphasis added)
100 Fundamentally, Mr Matson’s contention in all of these draft grounds of appeal is that the Attorney-General could, and should, have revisited and then revoked the s 22 surrender determination concerning Mr Matson (because of the onset of the COVID-19 pandemic in 2020), and any view taken by the Attorney-General of lack of power to do so was wrong. Mr Matson expands on this contention by claiming that:
all forms of estoppel referable to the decision of Rangiah J are inapplicable, because the refusal of the Attorney-General to revoke the s 22 surrender determination took place after the decision of Rangiah J;
the Attorney-General erred in determining that he could not revoke the s 22 surrender determination;
the Attorney-General was morally and legally obliged to revoke the s 22 surrender determination;
the Attorney-General was obliged to consider the implications of art V of the Treaty in determining whether to revoke the s 22 surrender determination; and
the primary Judge erred in disregarding the importance of the ICCPR to the Attorney-General’s s 22 surrender determination.
101 The primary Judge noted at [185] that Mr Matson had contended that the Attorney-General was mistaken in assuming there was no power to remake or reconsider a surrender determination made under s 22 of the Extradition Act. At [188] his Honour observed that, in light of the decision of the High Court in Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 – where 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 – it was at least reasonably arguable that the Attorney‑General was incorrect in that view of his powers. However, the primary Judge concluded that it was not in the interests of justice to allow Mr Matson to reopen his case with respect to the 2PFAOA because:
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 …
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).
102 Further, his Honour earlier concluded at [120] that:
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.
103 Turning now to Mr Matson’s draft grounds of appeal and submissions, I make the following observations.
104 First, as I have already observed, Rivera and Snedden are authority that the Attorney’s discretion is unfettered and he or she 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 Extradition Act.
105 Second, while it is possible in light of Foster that the Attorney could, if he or she chose, reconsider and revoke a s 22 surrender determination, Rivera and Snedden are also authority that the Attorney-General cannot be compelled to exercise that power.
106 Third, as a matter of construction the Extradition Act does not impose any requirement on the part of the Attorney to revisit his or her surrender determination when circumstances change.
107 That this is so is illustrated by the terms of s 26(6)(a) of the Extradition Act. Section 26(5) of the Extradition Act provides as a general proposition that a person shall not be retained in custody in Australia more than 2 months after the day on which the surrender decision is made. However where, for example, after a surrender decision is made (but before the actual surrender of the person takes place) circumstances change such that surrender could be dangerous to the life or prejudicial to the health of the person, s 26(6) of the Extradition Act nonetheless contemplates that the person should not be surrendered despite the provisions of s 26(5). The change in circumstances does not compel the Attorney-General or relevant Minister to reconsider the surrender decision itself.
108 That this is also the case in respect of the onset of the COVID-19 pandemic was made clear by the Full Court in Reyes v United States of America [2020] FCAFC 149.
109 Fourth, the decision Mr Matson sought revoked, reconsidered and remade was made more than one year prior to the emergence of the COVID-19 pandemic. It was not an issue for the Attorney-General to take into account in making the original surrender decision. It similarly follows that to the extent Mr Matson claims that, if the Attorney-General was making the surrender determination “today”, the Attorney-General would have to consider the effect of COVID-19 under art V of the Treaty, that argument must be misconceived. In my view the judgment of Charlesworth J in Lobban v Minister for Justice [2016] FCAFC 109 is of no assistance to Mr Matson.
110 Fifth, to the extent that, in his draft grounds of appeal, Mr Matson relies on the ICCPR in his criticism of the s 22 surrender determination, that reliance is misplaced. It is uncontroversial that unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [101]; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 at [59]; AB v Minister for Immigration and Citizenship [2007] FCA 910; at [22]; Snedden at [147]. The Attorney-General was simply not required to have regard to the ICCPR in making the surrender determination regarding Mr Matson.
111 Sixth, the High Court has held that the Extradition Act is a valid law with respect to external affairs: Vasiljkovic at [36] (Gleeson CJ), [87]-[88] (Gummow and Hayne JJ), [222] (Heydon J). To the extent that Mr Matson seeks a declaration that Part II of the Extradition Act and the Extradition (United States of America) Regulations are invalid under the Constitution, his application has no prospect of success.
112 The primary Judge was not satisfied that the COVID-19 pandemic could have had the effect of rendering invalid any of the steps taken in relation to Mr Matson’s extradition before the onset of the pandemic, or rendering unlawful the surrender decision itself. Further, his Honour was satisfied that the Attorney-General could not be compelled to exercise the power to reconsider and revoke a s 22 surrender decision, including the decision concerning Mr Matson.
113 These findings were plainly correct. Draft grounds of appeal 16, 19, 20, 21, 26, 32, 33, 34, 35, 36, 43 clearly have no prospect of success.
Draft ground of appeal 17
114 Mr Matson’s draft ground of appeal 17 relates to his ability to commence separate proceedings “based around the COVID-19 pandemic in the USA”. He contends that:
17. The primary Judge erred under subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The applicant's previous reliance on the pandemic" at paragraphs [121] to [125] by finding that:
the Appellant was, at least by 25 June 2020 and continuing to 28 August 2020, seeking to deploy the circumstances created by the COVID-19 pandemic in QUDI07/2019.
and subsequently under subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The applicant's previous reliance on the ICCPR" at paragraph [130] by finding that:
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 QUDI07/2019 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 that Action... …the closeness of the connection suggests that it was unreasonable for the applicant not to have sought to pursue his present claims in Action QUDJ07/2019.
On the basis that plainly the Appellant was entitled to start separate proceedings based around the COVID-19 pandemic in the USA, which was constantly evolving into a much bigger issue, and the primary Judge in QUD107/2019 had been unresponsive and unfair to the Appellant in his attempts to re-open, so it was a legally valid option for the Appellant to start separate proceedings about the COVID-19 pandemic, including the filing of his interlocutory application dated 6 January 2021.
115 In this draft ground of appeal Mr Matson seeks to conflate his grievances concerning findings of the primary Judge concerning Mr Matson commencing proceedings based on the COVID-19 pandemic, and Mr Matson commencing proceedings referable to the ICCPR. His Honour dealt with these issues at [121]-[125] (in relation to the pandemic) and [126]-[135] (in relation to the ICCPR). In summary, his Honour found that:
this articulation of COVID-19 claims by Mr Matson was very similar to those he raised before Rangiah J; and
in relation to the ICCPR – Rangiah J had rejected claims of Mr Matson relating to the ICCPR, and any new issues Mr Matson sought to raise referable to the ICCPR were subject to principles of Anshun estoppel.
116 In the absence of persuasive submissions by Mr Matson to the contrary, I am unable to see obvious error in the reasoning of the primary Judge.
117 This draft ground of appeal has no prospect of success.
Draft ground of appeal 18
118 Draft ground of appeal 18 relates to Mr Matson’s representation, at various points before this Court, by pro bono counsel. He contends that:
18. The primary Judge erred under subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The applicant's previous reliance on the ICCPR" at paragraph [131] by finding that:
...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.
On the basis that the senior and junior counsel acting for the Appellant and, the Appellant's instructing solicitor, were all engaged on a very limited pro bono basis, namely for the purpose of the Appellant's Interlocutory Application dated 5 March 2020 in QUD107/2019, and they had made it clear to the Appellant that they were unable, and unwilling, to do any further work without funding or payment being provided for their professional fees.
119 The alleged error of the primary Judge raised by this draft ground of appeal is not obvious. Rather, I understand it to be uncontroversial that, at one stage during the COVID-19 pandemic, Mr Matson was represented by senior and junior counsel on a pro bono basis. Indeed, I understand that at various times Mr Matson has been represented by different pro bono counsel in this, and other, proceedings before this Court.
120 The tenor of this draft ground of appeal appears to be that Mr Matson experienced disadvantage by his lack of legal representation in prosecuting his case. However, neither the absence of legal representation, nor the recognition by the primary Judge of that state of affairs, can form the basis of any substantive ground of appeal against the decision of his Honour. As Muir JA observed in du Boulay v Worrell [2009] QCA 63:
[69] It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance: Bhagat v Global Custodians Ltd [2002] FCA 223. But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation. The Court’s duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation. The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice.
121 (see also Tutos v Roman Catholic Trust Corporation [2020] QCA 171 at [13]-[15] and Krajniw v Newman (No 2) [2015] FCA 673 at [23])
122 It necessarily follows that any argument as to Mr Matson’s inability to file and prosecute interlocutory applications, as well as inability to prosecute his appeal, because of his status as a litigant in person, is not persuasive.
123 In any event, I also note that Mr Matson has filed numerous interlocutory applications at times when he has not been represented by counsel.
124 This draft ground of appeal has no prospect of success.
Draft ground of appeal 22
125 Mr Matson asserts that the primary Judge misconstrued the application and significance of ss 26(5) and (6) of the Extradition Act. He contends:
22. The primary Judge erred under the subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The applicant's previous reliance on the ICCPR" at paragraph [134] by finding that:
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 "
On the basis that the primary Judge misconstrued when s 26(5) and (6) of the Extradition Act 1988 (Cth) are applicable, and furthermore the primary Judge incorrectly considered s 26(5) and (6) of the Extradition Act 1988 (Cth) to be relevant for the purpose of the hearing on 30 September 2020 and raised them in circumstances where the primary Judge had no reason to, and misunderstood their application and relevance to the Appellant's case, which misled the Appellant, and clearly such sections were completely irrelevant for the purposes of the interlocutory hearing (including the Appellant's bail application) on 30 September 2020, and for the purposes of his written judgment, and what the Appellant said in response to the primary Judge about sections 26(5) and (6) ought not weigh against the Appellant in any way. It was an impermissible and irrelevant consideration made by the primary Judge, which affected the primary Judge's finding about whether the Appellant's application was an abuse of process.
126 I am not satisfied that the primary Judge’s reference to ss 26(5) and (6) of the Extradition Act was incorrect, unnecessary, or an irrelevant or impermissible consideration. Neither am I persuaded that reference to these sections affected the primary Judge’s findings as to whether Mr Matson’s application amounted to an abuse of process. These sections were only mentioned in passing, at [134], and merely to draw attention to the fact that they were possible courses of action available to Mr Matson referable to these sections. The primary Judge had already concluded, at [132]–[133], that:
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.
…
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.
127 Therefore, it cannot be said that the reference to ss 26(5) and (6) in any way affected the primary Judge’s conclusion that Mr Matson’s application amounted to an abuse of process given it had already rendered ineffective on that basis, as well as that of Anshun estoppel.
128 Draft ground of appeal 22 has no prospect of success.
Draft ground of appeal 23
129 In relation to the operation of the ICCPR, Mr Matson contends that:
23. The primary Judge erred under the subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "ICCPR not part of the law of Australia" at paragraph [135] by finding that:
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.
On the basis that it is abundantly clear that in view of the letter written by the Appellant to the Honourable Christian Porter M.P. dated 11 August 2020, which raised the Appellant's concerns about his fundamental human rights under the ICCPR if extradited to the USA with the COVID-19 pandemic, and how they would be violated if extradited to the USA, which justified the existing s 22 surrender determination to be revoked, reconsidered and remade, and that if that did not occur the extradition would be unlawful. The primary Judge failed to fully apply and or understand the relevance of the ICCPR to the Appellant's application, and why a clear violation of the Appellant's fundamental human rights would occur if the existing s 22 surrender determination was not revoked, reconsidered and remade by the Honourable Christian Porter M.P. Attorney-General.
130 Mr Matson is fundamentally mistaken in contending that the ICCPR applies to his situation. As the primary Judge found, similarly to Rangiah J and the Full Court, the ICCPR does not form part of Australian domestic law. I have already noted that this is indisputably the case, referable to such High Court decisions as Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 and Tajjour and New South Wales [2014] HCA 35.
131 This draft ground of appeal has no prospect of success.
Draft ground 25
132 In this draft ground of appeal Mr Matson contends that:
25. The primary Judge erred under the subheading "Proposed Order 1- the surrender of the applicant to the USA" - "The asserted constitutional implied rights" at paragraph [145] by finding that:
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.
On the basis that clearly the Appellant was not given ample opportunity to do so, as he was not given an opportunity to file written submissions, and was clearly not prepared to give oral submissions on the day of the hearing on 18 November 2019 where Justice Rangiah forced the Appellant to proceed as an unrepresented litigant. The primary Judge erred in finding that in relation to the Appellant's argument that his Indigenous ancestry gives rise to constitutional implied rights, the Appellant was given "ample opportunity to do so, and that he was unsuccessful" is a misapprehension of the facts and law.
133 In relation to this draft ground of appeal:
it is entirely unclear to me from the material before the Court precisely how Rangiah J “forced” Mr Matson to proceed as an unrepresented litigant in those proceedings;
given the detailed consideration by Rangiah J at [191]-[220] of the 2020 Rangiah J Decision it is evident that his Honour had regard to arguments of Mr Matson concerning his claimed Indigenous heritage; and
particularly in light of the primary Judge’s detailed consideration at [136]-[148] of Mr Matson’s arguments, both in that Court and before Rangiah J, it is entirely unclear to me how the primary Judge erred in either his Honour’s reference to or consideration of these findings of Rangiah J.
134 This draft ground has no prospect of success.
Draft ground 27
135 In this draft ground of appeal Mr Matson contends as follows:
27. The primary Judge erred under the subheading "Proposed Order 1 - the surrender of the applicant to the USA" - "The asserted constitutional implied rights" at paragraph [146] by finding that:
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 to). Those matters were addressed in Matson 2020. To the extent to which the present claims are new, they should, for the reasons given earlier, have been made in Action QUD 107/2019. Accordingly, an Anshun estoppel applies and/or it is an abuse of process for the applicant to seek to pursue them now.
On the basis that, in view of the significance of the COVID-19 issue, the Appellant was legally entitled to raise the allegation that in view of COVID-19 in the USA his extradition would result in cruel and unusual punishment in violation of an asserted constitutional implied right in separate proceedings, namely QUD254/2020, rather than attempt to re-open QUD 107/2019, which matter had already been subject of a number of re-opening applications based on other separate issues.
136 At [146] of the primary judgment his Honour noted that these arguments of Mr Matson had been raised in previous proceedings (and were accordingly subject to res judicata) or alternatively they should have been raised in earlier proceedings (and were accordingly subject to Anshun estoppel). Plainly his Honour was correct – examination of the judgment of Rangiah J demonstrates that his Honour gave detailed consideration to principles of “cruel and unusual punishment” raised by Mr Matson (see, for example, at [85], [123]. [124], [126]-[130] of the 2020 Rangiah J Decision).
137 This draft ground of appeal has no prospect of success.
Draft grounds of appeal 29 and 30
138 These draft grounds of appeal provide:
29. The primary Judge erred by finding under the subheading "Proposed Order 2 - the claim for an injunction" at paragraph [152] by finding that:
For the reasons to be given shortly, I consider that Proposed Order 5 has no reasonable prospects of success. The failure of the claims for Orders I and 6 means that this claim also has no reasonable prospects for success.
On the basis that the primary Judge erred in relation to his conclusion for proposed Order 1, Order 6, and therefore the primary Judge erred in relation to Proposed Order 2.
30. The primary Judge erred by further finding under the subheading "Proposed Order 4 – mandamus” at paragraph [157] by finding that:
The applicant relies on the same particulars as he does/or proposed Orders], 3, 5 and 6. Given the failure of these claims, it can be said now that this has no reasonable prospect for success. My reasons are the same as those given in relation to the claims for the other Proposed Orders.
On the basis that the primary Judge erred in relation to his findings for proposed Orders I and 6, he thereby erred in relation to his finding in relation to proposed Order 4.
139 Mr Matson’s draft grounds of appeal 29 and 30 are dependent on error by the primary Judge in relation to Proposed Orders 1 and 6. Proposed Order 1 before his Honour was essentially 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”. In Proposed Order 6, before his Honour, Mr Matson sought declarations as to the invalidity of decisions made under ss 12, 16(1), 19, 22 and 23 of the Extradition Act.
140 For reasons I have already given, it is plain that the primary Judge did not commit any error in the context of Proposed Orders 1 and 6. Consequently, proposed grounds 29 and 30 have no prospects of success.
Draft ground of appeal 31
141 In relation to draft ground of appeal 31, Mr Matson contends that:
31. The primary Judge erred under the subheading "Proposed Order 7 - the validity of the Act and Treaty” at paragraph [173] by finding that:
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 and 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 and 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 QUDJ 07/2019, and which was so closely connected with the matters he did advance.
On the basis that the Appellant was not given an opportunity to present an argument as to the validity of the Act based on the decision in Love and Thoms. The only reason that submissions were not made in relation to Love and Thoms was because Justice Rangiah did not allow the Appellant to reopen to do so. The Appellant was not permitted to make submissions on the substantive argument regarding Love and Thoms, but made clear during the reopening application before Justice Rangiah, that if permitted to reopen, he wanted to make submissions about Love and Thoms. Justice Rangiah refused leave to reopen, and therefore the doctrines of res judicata, Anshun estoppel and/or abuse of process did not preclude the Appellant from making his argument about the validity of the Act and Treaty based on the decision in Love and Thoms in QUD254/2020.
142 The primary Judge noted that Mr Matson was given the opportunity to make submissions as to the effect of the decision in Love and Thoms notwithstanding the concession by his senior counsel that such an argument was unfounded. Despite Mr Matson later withdrawing this concession, he made no further submissions on this point. The primary Judge further found that, given what has already transpired, to the extent that Mr Matson’s contention as to the effect of Love and Thoms has not been resolved, Anshun estoppel or the doctrine of abuse of process applies.
143 In my view this proposed ground of appeal has no prospect of success.
Draft ground of appeal 37
144 Mr Matson contends, in relation to draft ground 37, that:
37. The primary Judge erred under the subheading "The applicant's 6 January 2021 application to reopen" – “Conclusion on the application for reopening" at paragraph [198] by finding that:
...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.
On the basis that the Appellant has, in seeking to reopen on the grounds of fresh evidence (namely the letter from the Attorney-General) a misapprehension of the law and an inadvertent error by the Attorney-General, are put simply, not the same claims, or of the same nature, or similar grounds based on different legal "pegs", the argument to reopen, was plainly a new argument that arose out of the COVID-19 pandemic, and it shows an apprehension of bias for the primary Judge to have shut it down the way that he has tried to. The Attorney-General failed the Appellant and the Nation as a whole, by misapprehending the law, and the primary Judge has effectively conceded that, and in the middle of a global pandemic, it was reckless not to allow the Appellant to reopen his case and have the new grounds determined on their own merits. They are arguments of a similar nature that have been raised before. The primary Judge erred in finding his so called "limit", and should have granted leave to reopen the Appellant's case as outlined in the Appellant's fifth interlocutory application dated 6 January 2021.
145 Given my previous observations in relation to the surrender warrant issued by the Attorney-General under s 22 of the Extradition Act, it is not necessary to deal with this draft ground at length.
146 I also note the observation of the primary Judge that there is are limits on the reagitation of grounds by Mr Matson.
147 This draft ground of appeal has no prospect of success.
Draft ground of appeal 40
148 Mr Matson contends, in relation to draft ground of appeal 40, that:
40. The primary Judge further erred under the subheading "A second application to reopen" at paragraph [206] by finding that:
(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 Action QUD107/2019) and had filed successive iterations of an application to reopen in these proceedings on 6 and 7 January 2021.
On the basis that the reopening applications of QUD107/2019 were an irrelevant consideration, and that the successive iterations were an error by the jail, not the Appellant, which was of course explained to the primary Judge who chose to disregard, disrespect and ignore the realty of the circumstances. The primary Judge has no appreciation of the difficulties faced by the Appellant in prison, and shows a complete disrespect for the dignity of the Appellant by his findings from paragraph 206 (a) to (f).
149 It is difficult to identify how the primary Judge erred in considering the implications for the respondents should further interlocutory applications (and specifically further applications to reopen QUD107/2019) be filed by Mr Matson. Trial judges are required by s 37M of the Federal Court Act to have regard to efficiency and expedition of proceedings in this Court. Doing so does not constitute disrespect or disregard of the interests of Mr Matson by the primary Judge.
150 Again, the comments of Muir JA in du Boulay, at [69], are particularly pertinent to this proceeding. The Court has a duty to ensure procedural fairness to all parties to a proceeding. It necessarily follows that the primary Judge’s consideration of the burden further applications would have on the respondents was neither irrelevant nor incorrect.
151 Consequently, this draft ground of appeal has no prospect of success.
Draft ground of appeal 41
152 Mr Matson contends, in relation to proposed ground 41, that:
41. The primary Judge further erred under the subheading "A second application to reopen" at paragraph [206] by finding that:
(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.
On the basis that the Appellant had no idea that he would have to address the laws of "reopening" on 4 February 2021, which is clear from the transcript of the 4 February Hearing, which transcript the primary Judge has declined to provide to the Appellant. In fact the record shows that the Appellant wrote to chambers just days before the hearing requesting confirmation as to whether the 4 February Hearing was a "directions/case management hearing" to set dates for submissions etcetera or the actual "substantive interlocutory hearing", based on the fact that the primary Judge had made no orders for the provision of written submissions, something which the primary Judge seems to have been unaware of [see paragraph 48 below].
153 Mr Matson’s arguments are not persuasive. As Muir JA noted in du Boulay, at [69]:
…if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant. Those rules exist to facilitate efficient, fair and cost-effective litigation.
154 In terms of s 37M of the Federal Court Act it was entirely reasonable that the application for reopening be heard as soon as practicable by the primary Judge, especially given the number of separate applications Mr Matson had filed. The primary Judge concluded that Mr Matson could not have doubted that his application of 6 January 2021 to reopen would be heard on 4 February 2021. Mr Matson’s assertion in draft ground of appeal 41 that he “had no idea that he would have to address the laws of ‘reopening’ on 4 February 2021” is not persuasive.
155 Although at material times Mr Matson was a self-represented litigant, he is as bound by the rules of the Court as any other party. It was therefore entirely within the purview of the primary Judge to bring on the application to reopen for hearing.
156 Finally, the relief Mr Matson seeks referable to this ground of appeal is unclear.
157 This draft ground of appeal has no prospect of success.
Draft grounds of appeal 45, 46 and 47
158 Mr Matson’s draft grounds of appeal 45, 46 and 47 are as follows:
45. The primary Judge erred under the subheading "The bail application" at paragraph [221] by finding that:
Plainly, on my findings, the applicant cannot establish strong prospects for 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 risk of flight by the applicant.
Firstly, on the basis that the Appellant had established strong prospects for success in the proceedings (including in QUD 107/2019 and QUD254/2020), secondly, on the basis that the primary Judge was required to first consider whether the Appellant had established that special circumstances exist before turning his mind to the issues of whether there is no real risk of flight, and whether the Appellant has strong prospects for success in the underlying proceedings, and thirdly, on the basis that there was no evidence or information to suggest that the Appellant could be found to be a real risk of flight, particularly in view that the Appellant has no criminal history whatsoever, either in Australia or overseas.
46. The primary Judge erred under the subheading "The bail application" at paragraph [222] by finding that:
...With the possible exception of approximately 9 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.
On the basis that the Appellant has plainly not brought the long period of detention “on himself”, and that therefore significant weight ought to have been attached to the lengthy detention of the Appellant.
47. The primary Judge erred under the subheading "The bail application" at paragraph [223] by finding that:
For these reasons, I would have refused the application for bail.
On the basis that the reasons proffered by the primary Judge were unreasonable or seriously irrational and illogical, and that therefore bail ought to have been granted.
159 The decision of the primary Judge in this respect was made by his Honour after weighing up a host of relevant considerations. I would also note that Mr Matson has sought orders granting bail on at least eight occasions since 18 November 2019, none of which have been made.
160 These draft grounds of appeal have no prospect of success.
Conclusion
161 Mr Matson claims that he is entitled to appeal as of right from the decision of the primary Judge, and does not require leave to appeal. As I have observed however, in the context of the summary judgment application presently before the Court, this question is actually moot, because on either analysis the grounds on which Mr Matson would rely (in either an appeal, or in respect of an application for leave to appeal) have no merit. I am satisfied that the draft grounds of appeal have no prospect of success, such that the respondents are entitled to the orders they seek pursuant to s 31A(2) of the Federal Court Act.
162 I further note that, even were Mr Matson given the opportunity to amend his draft notice of appeal, I am not confident that he could present grounds of appeal from the decision of the primary Judge which had any prospect of success (see Singh v Owners Strata Plan No 11723 (No 4) [2012] FCA 1180 at [32], Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 at [13]). Mr Matson’s draft grounds of appeal currently before the Court are largely repetitive, convoluted and lack merit and substance. Mr Matson seems to employ a ‘scattergun’ approach, whereby he attempts to include any and all findings of the primary Judge as grounds of appeal in the hope that one may succeed, or occupy the Court’s time for a sufficient period to allow him to file further interlocutory applications. Subsequent applications filed by Mr Matson seek to re-agitate grounds (claimed to be entirely different on the basis of slight rewording) that have already been found wanting by the primary Judge, and in other earlier proceedings.
163 Finally, I note that the respondents have sought their costs. No reasons have been advanced for me to depart from the usual order that costs follow the event.
I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. |
Associate:
QUD 83 of 2021 | |
THE ATTORNEY-GENERAL OF THE UNITED STATES OF AMERICA THE HONOURABLE WILLIAM P BARR | |
Fifth Respondent: | THE UNITED STATES OF AMERICA |
