Federal Court of Australia

Pauga v Chief Executive of Queensland Corrective Services (No 3) [2022] FCA 338

ORDERS

THE COURT ORDERS THAT:

1.    There be leave to the applicant to file a further affidavit deposing to the matters the subject of paragraphs 141 and 142 in the affidavit of Mr Finlayson dated 24 March 2022.

2.    There be leave to the applicant to file and serve an affidavit in terms of the affidavit of Mr Finlayson of 25 March 2022 excluding paragraphs 9, 10, 15 and 18.

3.    The applicant do provide to the first and eighth respondents a draft statement of agreed facts in respect of the matters addressed by paragraphs 9, 10, 15 and 18 of the affidavit of Mr Finlayson of 25 March 2022 which facts the applicant says are relevant to the determination of the issues in these proceedings.

4.    On or before 6 April 2022 counsel shall confer with a view to agreeing the relevant facts in the draft statement of agreed facts.

5.    If agreement is not reached, the parties shall inform the Court.

6.    If agreement is reached, the parties shall file a statement of the facts as agreed.

7.    On or before 26 April 2022, the applicant do file and serve a statement of the grounds relied upon of no more than 10 pages that is confined to the matters stated in the affidavit of Mr Finlayson dated 11 January 2022 and the written submissions by the applicant filed 31 January 2022 such statement to refer to the relevant paragraphs of the affidavit or written submissions in which the ground is said to be expressed.

8.    There be leave to the applicant to file and serve an amended application which incorporates the claim stated in paragraph 143.3 of the affidavit of Mr Finlayson sworn 24 March 2022.

9.    Save as ordered herein, the applicant's interlocutory application dated 24 March 2022 is dismissed.

10.    The applicant pay the costs of the Australian Commissioner of Police of and incidental to the interlocutory application seeking to subpoena the Commissioner such costs to be assessed if not agreed.

11.    The costs of and incidental to today's hearing not otherwise ordered be reserved.

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

ORDERS

THE COURT ORDERS THAT:

1.    Any application for leave to file further submissions concerning the authenticity of the documents inspected before the Registrar on 7 March 2022 be brought by the applicant on or before 5 April 2022.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

COLVIN J:

1    Samoa seeks the extradition of Mr Pauga. In proceedings in this Court, Mr Pauga claims to be unlawfully detained. His claim was listed for final hearing in the week commencing 14 March 2022. The hearing was adjourned due to logistical difficulties faced by counsel for Mr Pauga as a result of their being required on the morning that the hearing was scheduled to commence to isolate at home as close contacts of a person who had contracted COVID-19.

2    Just before the March hearing, an interlocutory application was filed on behalf of Mr Pauga seeking orders for various subpoenas to issue and for leave to rely upon certain affidavit material. In the circumstances, the interlocutory application was made returnable on the first day of the final hearing.

3    After the adjournment was allowed, the Court was informed that it was also proposed to seek an amendment to the grounds of the application. Directions were made at that time for all interlocutory applications by Mr Pauga to be listed for hearing on 29 March 2022. Those applications were heard and determined on that date. Certain of the claims were not pressed or were made the subject of further directions. The remaining applications were dismissed for reasons given at the hearing. The reasons given, as revised from the transcript, are set out below.

4    The principal claim made by Mr Pauga is for an order that he be released from custody or otherwise for relief by way of habeas corpus. He also seeks declaratory relief as to the invalidity of certain documents brought into existence in the course of dealing with his extradition and relief quashing those actions. However, the claims as to invalidity are advanced for the purpose of supporting his claim that he is been held in custody without lawful authority. In proceedings of the kind brought by Mr Pauga, there is an evidential burden upon the applicant to produce sufficient material that would cause the person detaining the person seeking relief to be required to prove the lawfulness of the detention: see McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 (Allsop CJ, Besanko and Mortimer JJ).

Application for subpoenas to give evidence

5    Mr Pauga seeks leave to issue subpoenas to the officer responsible for the arrest of Mr Pauga and to the supervising officer of the Brisbane Watch House where he was taken after arrest.

6    In this matter I have directed that the applicant is confined to the grounds stated in the written outline of submissions. As explained in McHugh there is a requirement for an applicant to articulate the nature of the arguable case that gives rise to the responsibilities to answer the claim. In my view, it is not sufficient to say as was said by Mr Mancini in the course of submissions for Mr Pauga a number of times, that (a) Mr Pauga is in detention; (b) issues are raised in a global sense about his detention; and (c) therefore, these proceedings expand to an investigation of the entirety of the circumstances of the detention of the applicant. Rather, for the fair and reasonable conduct of these proceedings there must be an articulation of the arguable grounds for relief and the identification of the evidence that supports each of those arguable grounds.

7    The difficulty that I see with the proposed subpoena to the officer responsible for the arrest of Mr Pauga to give evidence at the final hearing is that the nature of the case that is currently disclosed by the applicant in relation to the circumstances after his arrest and before he was ordered to be remanded is articulated as a complaint that there was a failure to conform with the requirements of s 15 of the Extradition Act 1988 (Cth), being a complaint that Mr Pauga was not brought as soon as practicable before a magistrate.

8    In the course of submissions to support the application for the subpoena, it is apparent that Mr Mancini wishes to advance arguments by reference to the legal nature of what was required and what could be done in the period after arrest and before the applicant was brought before a magistrate. However, there is not identified in the matters that are the subject of the written outline of submissions any arguable basis or any articulation of a matter that requires evidence from the person who executed the extradition arrest warrant and took him to the Brisbane Watch House pending him being brought before a magistrate for the purposes of s 15.

9    So having regard to the way in which the case is articulated, I am unable to discern an arguable case beyond the general complaint about the applicant not being brought as soon as practicable before a magistrate.

10    The submissions advanced today sought to identify, it would seem, some other aspect in relation to the way in which the applicant was dealt with that was not lawful because there was a lack of power in relation to Mr Pauga being brought to the Brisbane Watch House. There is no such case articulated in the submissions. There would need to be leave for such a case to be advanced and it would need to be articulated in the proper way. That is to say, the ground would need to be articulated so that it could be understood in order to then support steps being taken in a forensic way.

11    So for those reasons, I am not satisfied that there should be leave given to issue subpoenas to the arresting officer or the supervising officer at the Brisbane Watch House and I dismiss those applications.

Application for subpoena to produce documents

12    Mr Pauga seeks leave to issue a subpoena to the Commissioner of the Australian Federal Police to produce documents.

13    The relevant complaint that is raised in relation to this matter concerns an arrest that took place on 20 August 2020 and the circumstances in which the applicant came to be brought before a magistrate on that day.

14    As has been noted, there are complaints that have been suggested in oral submissions about the way in which a transfer occurred to the Brisbane Watch House, what happened in relation to the original warrant and who held the original warrant bear upon the lawfulness of the custody of Mr Pauga on that day. All that is a conjecture none of which is disclosed by the written submissions that are filed in relation to this matter which has now been on foot for nine months.

15    Having regard to the way in which the case is articulated in the written submissions there is no arguable matter identified to which the document that is sought would have any apparent relevance or any significance sufficient to justify the burden of requiring the document to be produced. For those reasons, leave to issue the subpoena is refused.

16    There will be an order that the applicant pay the costs of the Commissioner of the Australian Federal Police of and incidental to the application for leave to issue a subpoena to the Commissioner.

Application for leave to issue subpoena to first respondent

17    Mr Pauga seeks leave to issue a subpoena to produce documents to the Chief Executive of Queensland Corrective Services.

18    There are six categories of documents that are sought by way of the proposed subpoena and I will come to those categories shortly. The submissions that were advanced to support the application for the subpoena at various times advanced the proposition that it was appropriate to seek the documents by reason of the content of the affidavit of Mr Brayshaw that has been deposed to on behalf of the first respondent in answer to the substantive application. It was repeatedly characterised as an affidavit which was inappropriate in some way because of its failure to comprehensively deal with the full chronology of circumstances relating to the manner in which the applicant has been held in detention. I do not accept the submissions to that effect.

19    As I have noted, the application for substantive relief proceeds by reference to case management directions which, ultimately, have resulted in the case for Mr Pauga being formulated by way of 20 pages of written submissions. By direction, the nature of the case to be advanced was to be articulated in those submissions, and they take effect as the grounds to be relied upon. Significantly, the matters put in those submissions focus upon the manner in which extradition proceedings were conducted by magistrates, the steps taken by those magistrates and the orders by way of remand and other directions that were made by those magistrates.

20    It is not the case, in my view, that the first respondent had an obligation in answering the case as articulated, to produce a comprehensive set of all of the records and a full chronological explanation including (as was suggested in submissions for Mr Pauga) the identity of each person who was involved in each step that was taken by way of receiving Mr Pauga into custody, dealing with Mr Pauga in custody and arranging for his attendance at various times before the magistrates.

21    So the primary foundation upon which the application for the subpoena is brought is not established. Therefore, I deal with this application by reference to the case as articulated in the written submissions which disclose the arguable basis upon which there is alleged to be invalidity in instruments and actions taken by magistrates that are said to support the detention of Mr Pauga.

22    I note that the affidavit of Mr Finlayson relied upon in support of the application describes in the most general terms the reason for the application. It is said that there was material produced and tendered in evidence in the Supreme Court of Queensland and that neither that material nor other documents have been put before the Court by the respondents. This means that there is available, and have been available, to Mr Pauga for the purposes of articulating his case, access to those documents. So it cannot be said that there was unavailable to Mr Pauga the necessary documents that might be used to formulate his case. There is no point being taken here about the use of those documents for the purposes of these proceedings, being as they are, related to the same subject matter as the proceedings in the Supreme Court of Queensland. There is no suggestion that consent is not forthcoming to allow the use of the documents for that purpose. Indeed, what has been suggested in submissions by Mr Pauga is not that the documents cannot be reused, but rather, that they are incomplete in some way. So what the affidavit of Mr Finlayson goes on to say is that in order to put before the Court a comprehensive record of the applicant's detention and movements for the purpose of the inquiry on habeas corpus and for the purpose of putting before the Court the materials for the purpose of the jurisdictional issues, whether the expedition proceedings were conducted according to law, the applicant seeks the documents.

23    In that justification for the subpoena is the rationale which I addressed earlier, namely the idea that there must be some form of comprehensive record of detention produced in answer to any application for habeas corpus, a proposition which I do not accept.

24    I now turn to the particular categories of documents that would be the subject of the proposed subpoena.

25    Category 1 seeks all records, file notes, entries, reports and correspondence regarding the admission, detention, processing, control and movement of the applicant in the custody of the first respondent. The category of documents is extremely broad. It is patently unconfined by reference to the issues that are agitated in the proceedings. It is, I accept, oppressive. It would require the production of every single document that was in the possession of the first respondent that had anything to do with the control of the applicant. It is unconfined to the issues in these proceedings and being so broad as to be oppressive, I do not accept that there should be a subpoena addressed in that way.

26    Category 2 seeks something called the forms 10, forms 11, letters of production, law lists published by the Court, notices or attendance authorities within the meaning of s 69 of the Corrective Services Act 2006 (Qld) concerning the applicant. In submissions for Mr Pauga it was explained that these are documents of a character which are expected to be the documents brought into existence to support Mr Pauga being brought up before the magistrate at the end of each period of remand. There is no claim in the submissions which form any grounds which seek to challenge separately those actions. In the absence of there being an articulation of a ground that relies upon those documents, the documents sought are not demonstrated to be relevant to the application.

27    As was exposed in the course of submissions, it is not apparent why there would need to be some separate challenge to these documents, depending as they do upon the same arguments, it would seem, as those which are said to infect the remands that are the subject of the application. Those documents are challenged on the basis that various documents were issued not with the authority of magistrates acting as persona designata as required but either by the magistrates acting as judicial officers or by some officers of the Court acting without direction or control or supervision by a magistrate acting as a persona. And it appears that what is sought to be done is to obtain these documents the subject of Category 2, in order to identify further documents which might be the subject of that same argument. So, in addition to the fact that there is no such claim to that effect currently the subject of these proceedings, it is not apparent to me why it is necessary to identify a separate challenge to those documents based upon the same argument, the merits of which will, if successful, infect the documents that are already under challenge.

28    For those reasons, without there being an issue raised in support of the application that goes to those documents, they are not relevant, and I refuse leave to issue a subpoena for those documents.

29    Category 3 appears to be a more general description of those same documents. It is expressed as the records of the first respondent authorising the transfer of the applicant to the Brisbane Magistrates Court on each occasion. I put to one side an issue on which I am presently reserved as to whether the Brisbane Magistrates Court, currently named as a party is, indeed, an identifiable entity about which there might be such a description. I assume for present purposes that use of that term might be sufficient to describe a category of documents. For reasons that I have given in relation to Category 2, those documents are not the subject of any identifiable ground articulated in the written submissions, and I refuse them on the basis that a subpoena for those documents is not demonstrated to be relevant.

30    Likewise, Category 4 which deals with the obligations to produce the applicant by video link. There is no case advanced that there is some unlawfulness associated with that production that has been identified in any way in submissions in support of the application for the subpoena. There being no articulation as to how Category 4 relates to the case as identified in the written submissions, I refuse leave to issues those documents.

31    As to Category 5, it relates to an entirely separate matter in which the applicant was brought from custody to the Redcliffe Magistrates Court to face, it was said in submissions, criminal charges. Those matters are unrelated to the issues the subject of the present proceeding. The lawfulness of that activity is not in dispute in any way, and I refuse that category on the basis of relevance.

32    Finally, Category 6 seeks the records of the transfer of the applicant from the custody at the Brisbane City Watch House to what is described as AGCC on 24 August 2020. There were no particular submissions advanced to support that category of documents, and for that reason I refuse leave to issue a subpoena identifying that category.

33    It follows that the application for the subpoena should be refused.

34    An issue was raised as to whether the application for a subpoena was, itself, an abuse of process by reason that there had been an opportunity afforded to the applicant to obtain discovery. The reasons given by the Court in relation to discovery did not deal with these documents because there was no application in relation to discovery. One might have thought in those circumstances that there may have been an application for specific discovery being the more appropriate procedure to adopt in seeking documents from a party to the proceedings, but I do not rest my reasoning on any view in relation to the issue of whether the documents should have been sought be way of discovery.

35    The costs of and incidental to the application to issue a subpoena to the first respondent in the terms set out in the affidavit of Mr Finlayson will be reserved.

Application for leave to file further affidavits

36    I note that as to the applications for leave to file further affidavits, leave was given to file certain affidavit material where there was no opposition to the filing of that material. The application for leave to adduce evidence of the opinion of Mr Finlayson concerning the affixing of seals on certain documents relied upon to support the extradition was not pressed by Mr Pauga. Otherwise, directions were given with a view to resolving objections to other affidavit material upon which the applicant sought to rely.

Application for leave to amend

37    In the result leave was only sought to raise an amendment as to an issue concerned with natural justice. Leave was given to amend to that extent.

38    It was then submitted for Mr Pauga that, despite case management directions that had been made confining his case to matters raised in written submissions, there were grounds raised by way of affidavit that could be advanced even though they were not addressed in the outline of submissions. This submission sought to rely upon an incorporation by way of reference of the matters stated in the affidavit of Mr Finlayson dated 11 January 2021.

39    In those circumstances, by way of further case management, an order was made requiring Mr Pauga to file and serve a statement of the grounds relied upon of no more than 10 pages that is confined to the matters stated in the affidavit of Mr Finlayson dated 11 January 2022 and the written submissions by the applicant filed 31 January 2022 such statement to refer to the relevant paragraphs of the affidavit or written submissions in which the ground is said to be expressed.

Costs

40    Costs of and incidental to the interlocutory applications not otherwise ordered were reserved.

Associate:

Dated:    5 April 2022

SCHEDULE OF PARTIES