Federal Court of Australia

Pauga v Chief Executive of Queensland Corrective Services (No 6) [2022] FCA 1096

ORDERS

THE COURT ORDERS THAT:

1.    The application for bail is refused.

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

ORDERS

THE COURT ORDERS THAT:

1.    The determination by the third respondent that the applicant is eligible for extradition be quashed.

2.    The warrant of committal of the applicant dated 9 July 2021 and signed by the third respondent be quashed.

3.    The proceedings under the Extradition Act 1988 (Cth) in respect of which a warrant dated 14 July 2020 was issued for the arrest of the applicant and in respect of which he was arrested be remitted to a magistrate who has accepted the function and power to conduct proceedings under s 19 of the Extradition Act for such proceedings to be determined according to law.

4.    The applicant be remanded in custody until 7 October 2022 or such further date as may be ordered by a judge of this Court.

5.    There be liberty to apply as to the remand of the applicant.

6.    Otherwise, the further remand of the applicant as required by s 15(2) of the Extradition Act shall be determined by a magistrate who has accepted the function and power to remand a person under s 15(2) of the Extradition Act.

7.    Save as ordered herein, the application is dismissed.

8.    The question of any order as to costs of the proceedings be reserved for determination on a date to be fixed.

9.    On or before 7 October 2022 any party seeking an order for costs of the proceedings shall file a minute of proposed orders stating precisely the terms of the cost order sought together with submissions of no more than 5 pages and any affidavit in support.

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

REASONS FOR JUDGMENT

COLVIN J:

1    In July 2020, a warrant for the arrest of Mr Talalelei Pauga was issued under s 12 of the Extradition Act 1988 (Cth). It was issued following a request from the Independent State of Samoa. Thereafter, Mr Pauga was arrested and taken to the Brisbane Watch House. Four days later, he was transferred from the Brisbane Watch House to the Arthur Gorrie Correctional Centre (Correctional Centre). He claims that his detention has been and continues to be unlawful. Numerous grounds are advanced to support that claim. They are based upon alleged failures to conform to the requirements of the Extradition Act by various Queensland magistrates.

2    Speaking generally, the claims made concern the way in which Mr Pauga was purportedly remanded as well as the conduct of a hearing on 8 and 9 July 2021 (July Hearing) concerning whether Mr Pauga was eligible for surrender under the Extradition Act. The July Hearing was conducted by Magistrate Previtera, a Queensland magistrate (Primary Magistrate). At the conclusion of the July Hearing, her Honour signed a form of warrant ordering the committal to prison of Mr Pauga to await his surrender under the Extradition Act (Warrant of Committal).

3    By proceedings commenced in this Court in July 2021, Mr Pauga seeks an order that he be released from custody or that a writ of habeas corpus issue 'to show cause as to the lawfulness of [his] custody' (First Application). The First Application also seeks orders quashing various documents produced at or after the hearings before various Queensland magistrates in the period leading up to the July Hearing. All parties accept that the relevant authority conferred upon magistrates under the Extradition Act is administrative in character and is to be exercised as a persona designata.

4    The administrative character of the power exercised by magistrates under the Extradition Act has significance for the extent to which an attack may be raised in the context of proceedings in which a writ of habeas corpus or an order in the nature of habeas is sought. Where a warrant that is on its face valid and is sustained by orders made by a court then the warrant itself will sufficiently answer the application: Vasiljkovic v Honourable Brendan O'Connor [2010] FCA 1246 at [61]. In such a case, it would be necessary to seek to challenge the order by way of appeal or by way of prerogative relief having regard to the nature of judicial power. However, where, as here, the authority for the warrant is the exercise of executive power then it is possible to raise an issue as to the lawfulness of that exercise as a basis for relief in the nature of habeas corpus.

5    The contentions advanced to support the relief sought include claims that (a) Mr Pauga was not remanded as required by the Extradition Act; (b) the magistrates involved purported to exercise judicial power when the only authority they had was administrative power as personae designata; (c) some of the documents that have provided the basis for the detention of Mr Pauga were issued by court officers and not by the decision of any magistrate acting administratively; (d) there was a failure to accord procedural fairness in relation to the conduct of the July Hearing; and (e) the form of the Warrant of Committal does not conform to the requirements of the Extradition Act. In short, it is claimed that actions have been taken that are beyond the statutory authority conferred by the Extradition Act and, in consequence, the ongoing detention of Mr Pauga lacks lawful justification. A claim of apprehended bias on the part of the Primary Magistrate was not pressed (although it was a matter that was raised before her Honour on a number of occasions).

6    The proceedings were brought against Samoa, each of the Queensland magistrates who conducted hearings in the extradition proceedings concerning Mr Pauga and the Chief Executive of Queensland Corrective Services (Chief Executive). The Attorney-General for the Commonwealth intervened. In the course of interlocutory steps there were appearances for the Queensland magistrates in relation to disclosure orders sought against them. However, the Queensland magistrates submitted to any final order and did not appear at the final hearing.

7    The Chief Executive took a limited part in the final hearing. The position of the Chief Executive was that Mr Pauga was detained initially on the basis of documents that were issued after each appearance before a Queensland magistrate that stated that he had been remanded in custody (referred to in the proceedings as Form 44s) and thereafter on the basis of the Warrant of Committal. The Chief Executive maintained that the Form 44s and the Warrant of Committal were sufficient authority to detain Mr Pauga and it was not for the Chief Executive to go behind those instruments. Otherwise, the Chief Executive did not seek to be heard on any issue as to the validity of those instruments and whether they could or should be set aside as contended for by Mr Pauga. Rather, those aspects of the case advanced by Mr Pauga were addressed by Samoa and the Attorney-General as intervenor.

8    The Extradition Act also confers a statutory right to seek review of the making of an order that a person be committed to prison to await surrender: see s 21(1). By separate application, Mr Pauga has exercised the statutory right to seek judicial review of the order made at the July Hearing that Mr Pauga was eligible for extradition (Second Application). The Second Application assumed the validity of the Warrant of Committal and sought statutory review of the making of the order that led to its issue. The merits of the Second Application (which was heard immediately after the First Application) are considered in separate reasons to be published at the same time as these reasons.

9    Shortly prior to the scheduled hearing of the two substantive applications, those acting for Mr Pauga indicated that they were ready to proceed with applications by Mr Pauga for bail. Those applications had been flagged from the outset but there was considerable delay by those acting for Mr Pauga in identifying the basis for the applications. Shortly after hearing the two substantive applications, I heard the bail applications. After reserving my decision on those applications for a short time, I refused the applications and indicated that reasons for doing so would be published at the same time as the reasons on the substantive applications. Therefore, these reasons (and the separate reasons in respect of the Second Application) also deal with the question of bail.

Outcome

10    For the reasons which follow, the First Application should be allowed on the sole basis that Mr Pauga was not afforded procedural fairness at the July Hearing because of the pre-emptory refusal of his application to adduce oral evidence. All other claims and contentions should not be upheld. The Warrant of Committal should be set aside and the matter remitted for determination according to law. Mr Pauga shall be remanded in custody by order of this Court until the supervision of his remand is resumed by a Queensland magistrate.

11    I will reserve the question of any order for costs for later determination if the parties are unable to agree cost orders.

The contentions advanced by Mr Pauga expressed as propositions

12    The case advanced by Mr Pauga complains about the events that occurred on various dates in 2020 and 2021 when hearings were conducted before Queensland magistrates in Brisbane. Throughout that period, Mr Pauga was held in custody, initially on the basis that he had been arrested pursuant to an extradition arrest warrant and thereafter on the basis that he had been remanded in custody under s 15 of the Extradition Act.

13    The case advanced for Mr Pauga on the present application raised many separate contentions as to why his detention is unlawful. Ultimately, they came to be set out in a statement of grounds that was filed shortly prior to the final hearing. The statement of grounds was received on the basis that it was a submission setting out a comprehensive list of each contention advanced on the First Application. I explained the history of the circumstances in relation to the identification of the grounds of the First Application in Pauga v Chief Executive of Queensland Corrective Services (No 5) [2022] FCA 684. The statement of grounds was filed after those reasons were published. As the case for Mr Pauga at the final hearing was put on the basis that the only grounds that were pressed were those set out in the statement of grounds, I will confine myself to the contentions raised in that document. To be clear, evidence and submissions to be found in the materials that are not relevant to the matters listed in the statement of grounds will not be considered.

14    In due course, it will be necessary to consider in some detail the history of the appearances before various Queensland magistrates consequent upon Mr Pauga's arrest and then to address the contentions raised for Mr Pauga in that context. However, at this stage, it is possible to divide the contentions advanced in support of the First Application into the following propositions, namely:

(1)    Contrary to the terms of s 15(1) of the Extradition Act, Mr Pauga was not brought before a magistrate as soon as reasonably practicable after his arrest with the consequence that he has never been lawfully detained.

(2)    In making orders to remand Mr Pauga and the directions and orders as to the conduct of the July Hearing, the Queensland magistrates purported to exercise judicial power and thereby acted without any lawful authority.

(3)    Certain of the instruments purporting to authorise the continuing detention of Mr Pauga in the period from his arrest until the July Hearing (being the Charge Sheet and Form 44s) were not valid because (a) their contents meant they were not valid and therefore did not authorise any remand under the Extradition Act; and (b) they were prepared and issued by persons other than the Queensland magistrates with the consequence that Mr Pauga was not lawfully detained.

(4)    There was no remand ordered by the Primary Magistrate at the hearing on 30 October 2020 with the consequence that thereafter he was not lawfully detained.

(5)    There was no jurisdiction to conduct the July Hearing unless Mr Pauga had been lawfully remanded and by reason of each of the matters stated in (1) to (4) he had not been lawfully remanded.

(6)    There was no jurisdiction to conduct the July Hearing unless an application had been made to the Primary Magistrate for proceedings to be conducted under s 19 of the Extradition Act in relation to Mr Pauga and no such application had been made, with the consequence that the Primary Magistrate had no jurisdiction to issue the Warrant of Committal.

(7)    There was no jurisdiction to conduct the July Hearing unless the Primary Magistrate considered that Mr Pauga had been allowed reasonable time in which to prepare for the conduct of the proceedings under s 19 of the Extradition Act and as the Primary Magistrate did not form that view before proceeding with the July Hearing the Primary Magistrate had no jurisdiction to issue the Warrant of Committal.

(8)    Alternatively to (7), the consideration by the Primary Magistrate as to whether the applicant had been allowed a reasonable time in which to prepare for the conduct of the proceedings under s 19 of the Extradition Act was undertaken without affording procedural fairness to Mr Pauga.

(9)    Alternatively to (7) and (8), the view of the Primary Magistrate that s 19(1)(d) of the Extradition Act had been met was formed in a manner that was arbitrary and capricious because the Primary Magistrate did not investigate the facts.

(10)    The July Hearing was conducted without opportunity for Mr Pauga to make submissions or adduce evidence with the consequence that the Primary Magistrate did not consider whether there were any extradition objections.

(11)    The Warrant of Committal was invalid by reason of the form in which it was issued.

(12)    Section 15 of the Extradition Act does not authorise the remand of a person in prison.

15    The statement of grounds also includes claims in relation to the detention of Mr Pauga in the Brisbane Watch House after his arrest. It is alleged that he was held in the Brisbane Watch House from 20 August 2021 to 24 August 2021 without authority and was transferred from there to the Correctional Centre without authority. No oral submissions were advanced to explain the purport of those claims. In those circumstances, I treat them as alleged conclusions that are said to follow from the propositions. As best I can tell, that is mostly the nature of what is stated in paragraphs 16 and following of the statement of grounds.

An important premise for much of Mr Pauga's case

16    In order to support the issue of a writ of habeas corpus or an order in the nature of habeas corpus, an applicant must establish matters that bear upon the validity of the applicant's current detention. Past unlawful detention may give rise to a claim for damages for unlawful imprisonment but it is not relevant to the present application unless it can be said to infect the validity of Mr Pauga's current detention. I referred to the relevant authorities in AKW22 v Commonwealth of Australia [2022] FCA 869 at [14]-[16]. As there explained, a person who was once detained without authority may subsequently become detained with authority. Accordingly:

… if the lawfulness of the current detention of a person depends solely upon current circumstances then it is only those circumstances that are to be examined. … If the lawfulness of the current detention depends wholly or partly on past circumstances then those circumstances must be evaluated. All of which is to expose the importance of considering the nature and extent of the particular power relied upon to justify detention. Whether past actions affect the lawfulness of the current detention depends upon the nature of the authority relied upon to detain the person.

17    Mr Pauga is not currently being detained on the basis that he is remanded under the provisions of the Extradition Act. Rather, his current detention is only sought to be justified by the Warrant of Committal. Therefore, it is necessary for Mr Pauga to advance a basis upon which the Warrant of Committal is unlawful or that some aspect of the past events means that his current detention is unlawful.

Structure of these reasons

18    There was no real factual dispute as to the course of events. Rather, the dispute concerned the proper legal characterisation of those events or the legal significance to be given to them. Therefore, I will begin the main part of my reasons by describing the chronology. I should be taken to have made findings in the terms set out in the parts of these reasons that describe the chronology (being the section describing the chronology of events from arrest to the July Hearing and the section concerning what occurred at the July Hearing before the Primary Magistrate).

19    I will then deal with each of the propositions advanced by Mr Pauga. In the course of doing so, I will address contentions advanced by Samoa and the Attorney-General for the Commonwealth as intervener (supported in some respects by the Chief Executive) to the effect that the application of principles of res judicata, issue estoppel or abuse of process (either separately or together) mean that Mr Pauga is unable to raise propositions (1), (2), (3) and (4) in these proceedings.

20    Finally, I will provide my reasons for refusing the bail application.

21    However, before addressing the propositions advanced by Mr Pauga, I will begin with a brief explanation of the statutory provisions and my consideration of the issues of statutory construction that arise concerning s 15 and s 19 of the Extradition Act. I will then turn to some general findings concerning the claim that the way in which the Queensland magistrates conducted hearings supports the claim that they acted judicially. I will also summarise the relevant principles concerning res judicata, issue estoppel and abuse of process.

The relevant provisions of the Extradition Act

General principles of construction

22    'The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose': SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ), see also at [37]-[39] (Gageler J). However, a very general purpose will not provide much context and the nature of the task, which requires the interpretation of the language of the statute, must be adhered to throughout: R v A2 [2019] HCA 35; (2019) 269 CLR 507 at [32]-[37] (Kiefel CJ and Keane J). The process should not be guided by making an a priori assumption about the purpose of the provision: Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 at [21]. It is the words of the statute that have constitutional effect and the fundamental duty of the Court is to give meaning to the legislative command according to the terms in which it has been expressed: Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 at [16]; and Tian Zhen Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at [28].

23    In the present case, no party sought to advance any purpose that should guide the proper construction of the provisions of the Extradition Act. Plainly, the broad purpose of the legislation is to provide for the manner in which persons may be extradited to and from Australia (see long title). The principal objects of the legislation are expressed in s 3 in the following terms:

The principal objects of this Act are:

(a)    to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence;

(b)    to facilitate the making of requests for extradition by Australia to other countries; and

(c)    to enable Australia to carry out its obligations under extradition treaties.

24    In addition to due regard to context and purpose, where, as here, the legislative provision is concerned with a fundamental common law right or freedom such as the right to personal liberty then that right will not be abrogated, curtailed or overridden without unmistakable and unambiguous language: Coco v The Queen (1994) 179 CLR 427 at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ); and Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at [21] (Gleeson CJ) quoted with approval in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [15]; and North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 at [11] (French CJ, Kiefel and Bell JJ), see also R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 (Brennan J); and Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [20] (Gleeson CJ).

25    As to context, the meaning of particular provisions is to be considered within the scheme and framework of the legislation rather than read in isolation: Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 at [136]-[138].

Section 15(1)

26    Section 15(1) of the Extradition Act provides that:

A person who is arrested under an extradition arrest warrant shall be brought as soon as practicable before a magistrate or eligible Judge in the State or Territory in which the person is arrested.

27    Mr Pauga submits that s 15 requires a person to be brought physically before a magistrate or eligible Judge. The terminology 'brought before' is a time honoured phrase used in provisions that are designed to protect from arbitrary detention by ensuring that the ongoing detention of a person must be justified to a judicial officer, albeit in the present case a magistrate or judge exercising administrative power as a persona designata. It is language that is used to express the common law requirement that a person who is arrested must be brought before a justice of the peace or a court as soon as practicable: North Australian Aboriginal Justice Agency Limited v Northern Territory at [28] (French CJ, Kiefel and Bell JJ), [97] (Gageler J); and Williams v The Queen (1986) 161 CLR 278. The substantive significance of the words lies in the fact that they require prompt judicial scrutiny of the basis for ongoing detention (usually by the bringing of a charge). However, in the case of executive detention it requires that there be prompt regard to the source of any power to detain and whether there is any basis for the exercise of the power in respect of the person brought before the person entrusted with the relevant authority. It ensures conformity with fundamental limitations upon the extent to which there may be executive detention by requiring prompt consideration as to whether detention is justified by the limited circumstances in which such detention is constitutionally lawful.

28    It was submitted for Mr Pauga that the terminology 'brought before' also facilitated the examination of the person under arrest in order to ensure a correspondence between the identity of the arrested person and the identity of the person the subject of the charge (or whose ongoing detention was to be otherwise justified) and this could not occur without the person being physically present before the magistrate. It was further submitted that if a person is not brought before a magistrate as required then the consequence would be that the lawfulness of the arrest pursuant to the extradition arrest warrant would come to an end and the authority of the arrest warrant could not be relied upon thereafter as the lawful justification for Mr Pauga to be detained or re-arrested.

29    Under previous legislation dealing with extradition there was a reference to any magistrate before whom a person 'may be brought': s 15(1)(b) of the Extradition (Foreign States) Act 1966 (Cth). In Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 98, Wilcox and O'Loughlin JJ said of that provision:

If a person arrested under a warrant was remanded in custody to appear at a later date, it would be a natural use of language to describe him as being 'brought' before the magistrate on the remand day. Perhaps the phrase 'may be brought' less literally describes the position of a person remanded on bail. But such a person is required, by the terms of the remand and his bail, physically to appear before the magistrate on the remand day. In that sense he is 'brought' to the court. Although Mr Winkler was entitled to a discharge from his bail on 16 March 1988, he was not in fact discharged. He remained subject to the direction of the court and was required by the terms of his remand and bail to appear before the magistrate on subsequent occasions.

(emphasis added)

30    It may be accepted that a requirement for there to be a physical appearance before a judicial officer (or in the present case a judicial officer acting as a persona designata) affords a substantial protection for the arrested or detained person. It enables the judicial officer to question the person directly in circumstances where it is possible by direct observation not only to identify the person but also to hear any complaint concerning the lawfulness of the arrest. It is also possible to see whether answers are being given free from threat, intimidation or other oppressive conduct arising from the circumstances in which the person is being held (noting that there limits on the role of a magistrate in relation to identification for the purposes of extradition proceedings: Marku v Republic of Albania [2013] FCAFC 51; (2013) 212 FCR 50 at [74]). In the context of that aspect of the subject matter, it is significant that s 15 of the Extradition Act uses the phrase, well known to the common law, of 'brought before'. It is terminology which, in the context of arrest and detention, usually means 'physically brought before'.

31    The effectiveness of the protection afforded by the common law requirement would be substantially undermined if it could be met by some form of appearance that was not a physical appearance. Significantly, the circumstances in which an arrested or remanded person facing criminal charges may make a court appearance remotely are addressed by statute: see, for example, in Queensland, s 178C of the Justices Act 1886 (Qld). There is no such provision under the Extradition Act.

32    For those reasons, I conclude that s 15(1) requires a person arrested under an extradition arrest warrant to be physically brought before a magistrate or eligible Judge. As will emerge, that conclusion as to the meaning of the statute accords with views expressed by Crow J of the Supreme Court of Queensland when dealing with an application brought by Mr Pauga for relief in the nature of habeas corpus on the basis of claims that his arrest in August 2020 under the terms of the extradition arrest warrant and his subsequent detention were unlawful. His Honour also made findings to the effect that Mr Pauga had been physically brought before a magistrate 'as soon as practicable'. The significance of those findings is addressed below.

Section 15(2)

33    Section 15(2) provides that a person 'shall be remanded by a magistrate or eligible Judge in custody, or … on bail, for such period or periods as may be necessary for proceedings [required by the Act] to be conducted'. The requirement for remand ensures that the duration of the person's ongoing detention until hearing is subject to supervision. The remand is only to be for so long as is necessary for the extradition proceedings to be conducted, a matter to be adjudged by the magistrate or eligible Judge.

34    There is an issue between the parties as to whether s 15(2) contemplates a single remand for so long as is necessary for the required proceedings to be conducted (with the possibility that the remand may be in custody or on bail) or whether it contemplates that there may be a remand from time to time. The divergence in views concerns the meaning of the words 'for such period or periods as may be necessary for proceedings … to be conducted'.

35    Plainly, there is a statutory requirement for a person who has been arrested and brought before a magistrate as required by s 15(1) to then be remanded until the relevant proceedings have been conducted. In my view, the use of the words 'period or periods' indicates that the magistrate or judge has a discretion whether to remand to a nominated time or until the time of the proceedings (if known) and that the exercise of the discretion is to be informed by what may be necessary for the required proceedings to be conducted. The proceedings themselves may be divided up. For example, there may be an initial remand until a date when an application for bail is to be heard. There may be a remand until a hearing at which some preliminary argument as to the validity of the extradition arrest warrant is to be considered. There may be remand until a date when the steps that might be taken before the proceedings are conducted or are expected to be completed. In each case, such a remand would be for a period that was necessary for the proceedings to be conducted even though it was not a remand until a known date when the proceedings were to be concluded. The use of the word 'period' supports the conclusion that the remand must be to an identifiable date so that the duration of the detention (from one point in time to another) is known at the time of the remand. The importance of supervising the duration of the remand also supports such a construction.

36    If such a course were not possible then the person concerned would be required to be remanded in custody until the proceedings were concluded (which is a date that is unlikely to be known when the person is first arrested and brought before a magistrate as required) and therefore would not appear before the magistrate for any intermediate step in the proceedings, or alternatively there could be no intermediate step. Either of those alternatives would be impractical. As to the first alternative, it would be inconsistent with fundamental rights if part of the proceedings could occur without the person concerned being able to appear. As to the second alternative, there is no reason why the conduct of the proceedings must occur at a single hearing. It follows that I do not accept the contention advanced for Samoa that there must be a single remand for the proceedings or that there could be a remand of unspecified duration (being until the relevant proceedings were completed).

37    However, there is a particular significance to the first remand. Once a person has been 'brought as soon as practicable' before the magistrate or eligible Judge and remanded as required then the arrangements for the ongoing remand are a matter for the magistrate or eligible Judge. Further, the statutory imperative thereafter is to continue to remand the person for such period or periods as may be necessary. So, if there were an initial remand and then a failure to remand on some later occasion then the later failure would not provide the foundation for an order requiring the person to be released from custody. Rather, it would produce the consequence that the person must be remanded as necessary for the extradition proceedings to be conducted. The mandatory nature of the provision requiring remand must be given effect. The duty imposed may be enforced by mandamus, but a failure to perform the duty does not mean that a person is entitled to be released. In that respect, the required analysis bears some similarities to that undertaken in Commonwealth of Australia v AJL20 [2021] HCA 21 at [49]-[53] (Kiefel CJ, Gageler, Keane and Steward JJ). A person who has been remanded is thereafter required to be remanded until the relevant proceedings under the Extradition Act have been conducted.

38    Therefore, I see no basis upon which some failure, by reason of administrative slip or oversight, to order a further remand at the end of a period of remand might found an application for an order that the person be released from detention. In such a case, unless it be shown that remand was no longer necessary for the extradition proceedings to be conducted, the appropriate order would be to require that the person be remanded for a period as may be necessary for the conduct of the required proceedings.

Section 15(4)

39    It may be noted that s 15(4) confers power upon the Attorney-General in respect of a person who is on remand under s 15(2) to issue a warrant in the statutory form authorising a police officer to take the person in custody 'to appear' before a magistrate or eligible Judge 'in a specified State or Territory'. It was suggested that the use of the terminology 'to appear' provided context that supported a construction of s 15(1) that required an arrested person to be physically brought before a magistrate or a judge. In my view the difference in language is explained by the fact that any person to whom s 15(4) applies will already have been brought before such a person and remanded. As to such persons who are the subject of a warrant issued by the Attorney-General under s 15(4), they are required by the terms of s 15(5) to be remanded in custody or on bail by a magistrate or judge in the specified State or Territory. They are not required to be brought as soon as practicable before such a magistrate or judge. The use of the terminology 'appear' reflects the fact s 15(4) and s 15(5) are concerned with a person who has been arrested and remanded. In contrast, the terminology used in s 15(1) 'brought as soon as practicable before' a magistrate or judge reflects the fact that it is addressed to a case where a person has been arrested under an extradition arrest warrant but not yet remanded.

40    Nevertheless, in a case about interstate extradition under the Service and Execution of Process Act 1992 (Cth), it has been determined that personal appearance was required where the legislation required the person '[to] be taken … to a specified place in the place of issue of the warrant': Formica & Forni v Victoria Police [2020] VSC 719 at [29] (Hollingworth J). Despite the use of the different phrases 'the person appear' and 'the person be taken' in the legislation, both were determined to require physical attendance in the jurisdiction to which the person was to be taken under the extradition warrant. The reasoning in that case supports an approach that would require personal appearance after arrest as a basic common law protection, a position which is only to be altered or departed from by the use of clear language.

Section 16, s 17 and s 18

41    Section 16 then provides for notification to any magistrate or eligible Judge of the receipt of an extradition request from an extradition country in relation to a person. It provides as follows:

(1)    Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate or eligible Judge, state that the request has been received.

Person must be extraditable person in relation to extradition country

(2)    The Attorney-General must not give the notice unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the extradition country.

(3)    As soon as practicable after the person is remanded under section 15 or the notice is given, whichever is the later:

(a)    a copy of the notice; and

(b)    copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b);

shall be given to the person.

(4)    A notice given under subsection (1) is not a legislative instrument.

42    There is provision whereby, in respect of a person who is on remand under s 15, the Attorney-General may direct a magistrate or eligible Judge by notice to release a person from custody or discharge the recognizances on which bail was granted: s 17. There is also a mechanism by which a person on remand may consent to surrender to the extradition country: s 18. Significantly for present purposes, each of those provisions is expressed to apply where 'a person is on remand under section 15'. I note that it would be strange if the validity of a notice from the Attorney-General to release a person, or the validity of any consent to surrender, might depend upon whether the remand itself was valid. Of course, a person who claimed not to have been validly remanded could raise that claim and thereby challenge the lawfulness of their detention. However, there is no evident reason why the lawfulness of a notice requiring a person to be released would depend upon the lawfulness or otherwise of the remand. The evident purpose of the provision is to provide a mechanism by which a person may be directed to be released on the authority of a notice from the Attorney-General. The fulfilment of that purpose does not depend upon the lawfulness of the remand. Similar reasoning applies where a person consents to surrender to the extradition country. The evident purpose is that the consensual act will operate, not that the consent is only effective if it is the case that the remand was lawful. A contrary construction would frustrate the evident purpose of the provisions.

43    It follows that the reference in s 17 and in s 18 to the provision applying where the person is on remand under s 15, is referring to a matter of fact not a matter of lawfulness.

Section 19(1)

44    Then, s 19 provides for a process by which there may be a determination of the eligibility of the person for surrender to the extradition country. It begins with the following provision in s 19(1):

Where:

(a)    a person is on remand under section 15;

(b)    the Attorney-General has given a notice under subsection 16(1) in relation to the person;

(c)    an application is made to a magistrate or eligible Judge by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and

(d)    the magistrate or Judge considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate or Judge shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.

45    It can be seen that the structure of the provision is to describe four requirements and then to provide that where they exist the magistrate or eligible Judge must conduct proceedings to determine whether the relevant person is eligible for surrender in relation to the identified extradition offences to the extradition country. I will refer to those proceedings as Section 19 Proceedings.

46    The four requirements in s 19(1)(a) to (d), were described in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 537 by Brennan CJ, Dawson and McHugh JJ as 'conditions of jurisdiction' that must be satisfied. It was common ground in the present proceedings that each of the requirements was a 'jurisdictional fact'. For reasons explained below, that common position was correctly adopted. However, as we observed in Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225 at [29] (Besanko, Banks-Smith and Colvin JJ):

The term is perhaps inapt because it may be applied to an opinion or an assessment that must be held or undertaken before a decision making power arises (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [130] (Gummow J)) or a state of satisfaction that must be reached (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [37] (Gummow and Hayne JJ, Gleeson CJ agreeing)). However, where the opinion or state of satisfaction is to be formed by the same decision-maker who is entrusted with the ultimate power that is to be exercised it may be appropriate to use the term pre-condition to describe the power for reasons stated by Basten JA in D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [241].

47    I note that s 19(1)(d) takes the form identified by Basten JA. It may be accepted that each of the four requirements in s 19(1) is a pre-condition which must be satisfied before a magistrate or judge has the authority and duty to determine whether the person is eligible for surrender in relation to the extradition offence for which surrender of the person is sought by the extradition country. Therefore, I will refer to the four requirements as the Four Pre-Conditions.

48    The first of the Four Pre-Conditions is that the person is on remand under s 15. It takes the same form as s 17 and s 18. In my view, the use of the same words in s 19 as those found in earlier provisions is intended to express the same requirement. For reasons already given, the requirement is met if, as a matter of fact, a decision has been made to remand the person under s 15(2) and an order to that effect is produced. There would be practical difficulties if each of those provisions, including s 19(1)(a), required an investigation of the circumstances of the remand and a conclusion that the remand is lawful before the statutory provision operated. A person in respect of whom the lawfulness of their remand had not been demonstrated would face practical difficulties in the sequence of steps contemplated by the Extradition Act to be undertaken. Those steps are explained below.

49    As to s 19 in particular, there is no suggestion that the person conducting the Section 19 Proceedings would have any authority to finally determine the lawfulness of the remand. A decision of that kind could only be made by a court. In circumstances where a magistrate or eligible Judge had in fact made a determination to remand a person and the person was consequently in custody or released on bail but there was some reason to doubt the lawfulness of the determination, the person would be required to abide by the terms of the remand but could not require the Section 19 Proceedings to be undertaken. An example is suggested by the present case where an issue was raised for Mr Pauga as to whether a decision by an acting magistrate would be valid for the purposes of the Extradition Act. Until a point of that kind had been resolved, there would be uncertainty as to whether the pre-condition in s 19(1)(a) was satisfied and therefore uncertainty as to whether there could be Section 19 Proceedings.

50    Further, a person who is brought before a magistrate must be remanded, either in custody or on bail: see s 15(2). Therefore, under the sequence that follows the issue of an arrest warrant, the Extradition Act requires a person to be remanded. If there is an invalid remand then the statutory command must still be met. The necessary result of invalidity would be mandamus requiring the statute to be carried into effect by remanding the person who has been arrested and brought before a magistrate or eligible Judge as soon as practicable. In consequence, unless some other event intervenes (such as a notice by the Attorney-General under s 17 or a consent to surrender by the person under s 18) such a person must be the subject of Section 19 Proceedings. The evident purpose of the remand is to enable the extradition process. Save for events of the kind that have been described that bring the remand to an end in some other way, it is the Section 19 Proceedings themselves that bring the remand to an end. Section 19(1)(a) is not dealing with an event which may not occur. It is required to occur once a person is arrested pursuant to an extradition arrest warrant. These are further matters that support the conclusion that s 19(1)(a) is describing a matter which has occurred in fact.

51    Finally, I observe that none of the above analysis would prevent a person from claiming that an arrest is unlawful or that the person who has been arrested has not been brought before a magistrate or eligible Judge as soon as practicable. Such matters precede remand: see s 15(1). If there is a failure to comply with s 15(1) then it is the completion of the process of arrest that is invalid. Remand occurs thereafter under s 15(2). So, a claim of invalid arrest could be raised at any point. Section 19 says nothing substantive about arrest. It is concerned only with whether a person is 'on remand under section 15': s 19(1)(a). I take that to refer to the requirement in s 15(2). It assumes that the person has been arrested and brought before the magistrate or eligible Judge as soon as practicable and requires such a person to be remanded.

52    Therefore, in my view, considered in context, s 19(1)(a) is simply reinforcing the sequential nature of the extradition process. It makes clear that the Section 19 Proceedings are only to be undertaken in respect of a person who is in fact on remand under s 15. The sequence commences when an extradition arrest warrant is issued. The circumstances in which an arrest warrant may be obtained are dealt with by s 12. It requires application to a magistrate or eligible Judge. Thereafter, the legislative scheme requires a specified sequence of steps.

53    The above approach is reflected in the reasons of Brennan CJ, Dawson and McHugh JJ in Director of Public Prosecutions (Cth) v Kainhofer at 539 where their Honours said:

The authority of a magistrate to conduct proceedings under s 19 depends on the matters specified in sub-s (1) including the making of an order of remand under s 15 and the giving of a s 16 notice. Lacking any power to review those decisions, a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made. Treating the order of remand and the giving of the notice as valid, the s 19 magistrate must proceed on the footing that the person whose surrender is sought is an extraditable person and that the case falls within either par (a)(i) or par (a)(ii) of s 6. It would be a curious interpretation of s 19 to attribute to a s 19 magistrate the power to find that the person is not an extraditable person when the s 19 magistrate's authority depends on the contrary hypothesis. In the administrative sequence, that issue is committed only to the consideration of the magistrate under s 12(1) and the Attorney-General under s 16.

54    The significance of the decision in Kainhofer for a claim that subsequent steps in the extradition process under the Extradition Act depend upon the demonstrated validity of earlier steps was noted, albeit in a different context, in Liem v Republic of Indonesia [2018] FCAFC 135; (2018) 265 FCR 251 at [62]-[65] (Mortimer, Wigney and Lee JJ).

55    Even if it be accepted that there has been a failure to remand in a manner that is lawful, it does not mean that the remand that has occurred in fact is a nullity for all purposes. As was emphasised by Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24]:

A decision made outside jurisdiction is not necessarily to be regarded as a 'nullity', in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as 'no decision at all'.

56    The possibility that a decision in fact (the remand of Mr Pauga) may be sufficient to satisfy a particular statutory criteria for a subsequent decision is implicit in the analysis undertaken in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2 at [41]-[66] (Kiefel CJ, Bell, Gageler and Keane JJ), noting that the possibility was not accepted as applying in that case. See also, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19 at [16]-[19], [21]-[24] (Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ); Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; (2015) 255 CLR 231 at [29]-[33] (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ); and Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105 at [28], [36]-[48] (Le Miere J).

57    The issue is to be answered by considering the proper construction of the provision. For reasons I have given, in my view s 19(1)(a) only requires that there to have been a remand in fact.

58    The next of the Four Pre-Conditions is s 19(1)(b) which requires that the Attorney-General must have given a notice under s 16(1). It is the mechanism by which the request from the extradition country is communicated to the magistrate or eligible Judge. It is not contentious in the present case.

59    Then there is the pre-condition in s 19(1)(c). It requires an application to be made to the magistrate or eligible Judge by the person on remand or the extradition country for the proceedings to be conducted. This is the mechanism by which the purpose of the extradition arrest warrant and the arrest is advanced. It enables either party to press for the proceedings to be conducted. It also ensures that there is an ongoing justification for the remand. Without the ongoing prospect of such an application and its ongoing pendency, the remand would be no longer justified.

60    For Mr Pauga, various points were made concerning this requirement. It was said that the application could not be made orally and there needed to be some form of written application. I do not accept that submission. No doubt it is likely that some form of written material will be provided. However, unlike other provisions in the Extradition Act where there is an express requirement for a specific form to be used, there is no form of application specified here. In those circumstances, it will be a question of fact as to whether there has been an application.

61    It was also suggested that there needed to be an application made to the particular magistrate who was to conduct the Section 19 Proceedings and that an earlier application to a different magistrate could not continue to have effect if the carriage of the process passed to a different magistrate. I see no merit in this point. Once an application is made to a magistrate, if the performance of the duty to conduct the Section 19 Proceedings is passed to another magistrate then, in the usual case, as a matter of fact, the matter will pass with the application pending. Significantly, there is no suggestion that the conduct of the Section 19 Proceedings in the present case was divided between magistrates. The Primary Magistrate dealt with the making of directions as to the conduct of the Section 19 Proceedings and also conducted those proceedings. There was no evidential basis to suggest that the statutory matters required to be addressed were considered by any person other than the Primary Magistrate or that some part of the statutory task required by s 19 was undertaken by a different magistrate. The submission in the present case was to the effect that the application was made to a different magistrate at an earlier stage in the chronology. Even accepting that there needed to be an application to the Primary Magistrate as the particular person conducting the Section 19 Proceedings, it will be a question of fact as to whether there was such an application. The fact that there was an application formulated and presented to a different magistrate at an earlier point in time does not mean that there was no such application. Nor does it mean that the Primary Magistrate could not treat that application as, in effect, being made to the Primary Magistrate when her Honour was allocated the task of conducting the Section 19 Proceedings. I deal below with what occurred in fact.

62    The final one of the Four Pre-Conditions is expressed in s 19(1)(d). Unlike the other provisions, it requires a state of mind to be formed by the magistrate or eligible Judge conducting the Section 19 Proceedings, namely that the magistrate or Judge considers that the arrested person and the extradition country have had reasonable time in which to prepare for the conduct of the Section 19 Proceedings. I deal below with whether the final requirement was met in the circumstances of the present case when addressing propositions (7) to (10).

Balance of s 19

63    Otherwise, the terms of s 19 were not in issue on the First Application. Under s 19(9), if the magistrate or eligible Judge determines that the person is eligible for surrender to the extradition country in relation to the extradition offences or one of them, then the magistrate or Judge shall order that the person be committed to prison or released on bail to await surrender (or release as provided for in s 22(5)) and also inform the person of the statutory right to seek a review under s 21(1). Section 19(10) deals with the case where there is a determination that the person is not eligible for surrender in which case the magistrate or Judge shall order the release of the person.

64    Therefore, both from the terms of the concluding words in s 19(1) (after the list of the Four Pre-Conditions) and the terms of s 19(9) and (10) it is evident that the statutory task for a magistrate or eligible Judge in conducting the Section 19 Proceedings is to determine whether the person is eligible for surrender to the extradition country in relation to an identified extradition offence. Further, in a case like the present where a determination is made under s 19(9) it is the order that the person be committed to prison that may be the subject of the statutory review.

Section 21

65    Section 21 confers a statutory right of review of the order made (that is for committal or release). As has been noted, Mr Pauga brings the Second Application under that provision. It is well established that the review to be conducted under s 21 is by way of rehearing as a full merits review (and not simply for error of law): Dutton v O'Shane [2003] FCAFC 195; (2003) 132 FCR 352 at [148] (Finn and Dowsett JJ). However, the review is subject to a limitation which confines it to consideration of the material before the magistrate or eligible Judge who made the decision under s 19: s 21(6)(d). For a time, that limitation was unqualified but an amendment was introduced which made the limitation on the material that might be considered subject to s 21A. Section 21A allows the admission of material that a party was prevented from adducing in the proceedings conducted under s 19 if the review court considers that the party should have been permitted to adduce the evidence.

66    It is important to bear in mind the distinction between the present proceedings (the subject of the First Application) and the separate proceedings brought by Mr Pauga under s 21 (the subject of the Second Application). The Second Application relates to the determination by the Primary Magistrate under s 19(2) and (9) by the conduct of the Section 19 Proceedings that Mr Pauga is eligible for surrender. The First Application does not rely upon s 21. It claims that, for various reasons, the whole of the Section 19 Proceedings were invalid. One of those reasons is a claim that the state of mind formed for the purposes of s 19(1)(d) (to the effect that Mr Pauga had a reasonable time in which to prepare) may be challenged for jurisdictional error.

The hearings before the Queensland magistrates

67    Mr Pauga relied upon a number of attributes of the way in which hearings were conducted before Queensland magistrates after the arrest of Mr Pauga. He claimed that those attributes demonstrated that the Primary Magistrate and other magistrates improperly approached the matter on the basis that they were exercising judicial power. As the only power that was entrusted to them by the Extradition Act was to act administratively, the purported exercise by them of judicial power was said to be invalid.

68    It is appropriate to differentiate between two distinct aspects of the way the claim was put. First, it was said that the proceedings conducted by the magistrates were conducted in circumstances that had the characteristics of judicial proceedings by reason of the place where those proceedings were conducted (a court building), the physical attributes of the court rooms used for the proceedings, the listing and announcement of the proceedings, the way in which the magistrates were addressed in the course of the proceedings and the way in which orders were made and carried into effect. Secondly, it was said that in certain respects what was said and done by particular magistrates indicated that they misunderstood the nature of the power that they were exercising.

69    It is necessary to place the first of these two aspects in the relevant practical context. The Extradition Act entrusted the relevant statutory authority to persons who had been appointed as magistrates. It required those magistrates to conduct hearings for the purposes of the extradition proceedings of persons who were under arrest and, unless released on bail, were to be held in custody. Therefore, as a matter of practicality the hearings that were required to be conducted for the purposes of the Extradition Act needed to occur at a place where it was possible to deal in an appropriate way with an arrested person who was being held in custody (or was to comply with bail conditions). Court rooms were an obviously suitable place for such hearings. Indeed, one may infer from the nature of the proceedings and the judicial office held by the persons who could exercise the administrative authority conferred by the Extradition Act that the legislation contemplated that those persons would use the court rooms and other facilities available to them as judicial officers in order to conduct the administrative proceedings.

70    As to the nature of the power of a magistrate or eligible Judge when conducting extradition proceedings under the Extradition Act, in Dutton v O'Shane at [159], Finn and Dowsett JJ said:

It is to be expected that a s 19 magistrate will employ, as appropriate, the practices and procedures applied in the Magistrates Court of the jurisdiction in which the determination is to be made so as to ensure the orderly and fair hearing and determination of the matter. The scheme of the Act is, in our view, premised upon this. And it carries the consequence that the processes adopted would be likely to result in the matter being dealt with in a court-like fashion: see Knauder v Moore [2002] FCAFC 404 at [25]; with, for example, rulings being made on 'the admissibility of evidence', on cross-examination, etc. However, this does not affect the character of the proceeding or of the determination itself. These remain administrative.

71    Further, as was observed by French CJ in Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 at [36], where an eligible judge is appointed by legislation to discharge a substantial non-judicial function, then the hearing of an application before the judge under the legislation 'will yield a decision which is closely linked to the exercise of jurisdiction conferred on the Supreme Court by the Act. It is very likely to involve the use of the facilities and services of that Court'. Although the point was being made for a different purpose, implicitly such a course is appropriate and indeed is to be expected.

72    Finally, there is no suggestion that those who were acting for Mr Pauga were under any misapprehension as to the administrative nature of the proceedings. Indeed, as will emerge, they went to rather extraordinary lengths to emphasise that aspect in ways that, at times, were both unhelpful and supercilious. Therefore, it cannot be said that they did not understand the character of what was occurring. Likewise, those acting for Samoa clearly understood the nature of the proceedings.

73    In those circumstances, there is a distinct air of unreality in the protests made before the magistrates and in the submissions made in these proceedings to the effect that there were aspects of the way things were done that had the character of judicial proceedings. If those participating on behalf of the parties to the proceedings well understood the nature of the proceedings, all those contextual aspects were of no moment.

74    However, the same cannot be said of the second aspect I have described, namely the understanding of the Queensland magistrates of the nature of the authority and power they were exercising. The second aspect may have merit if indeed it supports a conclusion that there was a misapprehension by any of the magistrates, particularly the Primary Magistrate, as to the nature of the power that was being exercised.

75    I say immediately that the second aspect was not differentiated from the first in the way the case was put for Mr Pauga. All matters were rolled up together. However, there were points at which submissions were made which were couched in terms that the magistrates themselves did not understand the task with which they were entrusted. If indeed that was the case then issues may arise as to whether any such misunderstanding affected the way in which the decision was made which led to the issue of the Warrant of Committal and if not, whether such a misunderstanding was a basis upon which the relief sought may be granted. I put the matter in those terms because it may be the case that a decision made in the belief that it was judicial but which, as a matter of law could only operate administratively, was nevertheless undertaken in a manner that conformed to the statute (in terms of the process and reasoning). If so, it may be that the decision could not, for that reason alone, be invalid.

76    For the reasons just given, I put to one side the first aspect of the submission to the effect that the factual circumstances indicated that one or more of the magistrates conducted the proceedings like judicial proceedings. For those reasons, in the chronology of events from arrest until the July Hearing, I include only factual matters that might bear on the second aspect of the submission.

Relevant principles concerning res judicata, issue estoppel and abuse of process

77    In the recent decision of Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 727, Jackson J reviewed the state of law concerning the application of principles of res judicata, issue estoppel and abuse of process to proceedings in which relief in the nature of habeas corpus is sought. His Honour concluded that they may be raised in answer to an application for habeas corpus: at [29]. However, in the result, his Honour preferred to rest his decision in that case on the ground of abuse of process, as explained by the High Court in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 at [24]-[26]: at [35]-[37].

78    In Tomlinson, the High Court explained that the doctrine of abuse of process 'is informed in part by similar considerations of finality and fairness' and can overlap with the doctrine of estoppel. However, abuse of process 'is inherently broader and more flexible'.

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.

79    Earlier, in Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ said:

[P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and are oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

80    As to res judicata and issue estoppel, I gratefully adopt the succinct summary of the relevant principles by White J in Matson v Attorney-General (Cth) [2021] FCA 161 at [54]-[65] (a case also concerned with the application of those principles in the context of extradition proceedings):

The principle of res judicata operates to preclude a party from litigating in a second proceeding a cause of action which has merged into judgment in a prior proceeding… Issue estoppel is a narrower principle which has the effect that once there has been a judicial determination of an issue, it is to be treated as final with the consequence that it cannot be raised again between the same parties or their privies.

The chronology of events from arrest to the July Hearing

81    The extradition arrest warrant for Mr Pauga was issued on 14 July 2020. Mr Pauga was arrested on 20 August 2020 in Queensland. After his arrest, Mr Pauga was taken to the Brisbane Watch House.

82    The affidavit of Mr Finlayson dated 11 January 2021 sworn in support of the First Application (Finlayson Affidavit) described the arrest warrant as a warrant within the meaning of s 15(1) of the Extradition Act. Further, for reasons that I gave on 24 January 2022 no issue as to the validity of the arrest warrant or the actions of the arresting officer arises in these proceedings: Pauga v Chief Executive of Queensland Corrective Services [2022] FCA 244. The statement of grounds made no such allegation. Therefore, evidence as to what occurred in relation to the arrest of Mr Pauga by a federal police officer and his delivery into custody at the Brisbane Watch House is not relevant to the case as presented at the final hearing.

83    It is significant for present purposes to note that while he was being transported to the Brisbane Watch House, Mr Pauga telephoned Mr Finlayson. Shortly after that, Mr Finlayson sent an email to the Registry of the Magistrates Court of Queensland at Brisbane in which he said:

I act for Tala Pauga who has just been arrested on an extradition warrant and whom I am informed is being brought before the Brisbane Magistrates Court.

The arresting officer has indicated that the hearing may occur by video or telephone.

I wish to co-ordinate being heard at any hearing.

Today I am in Adelaide.

84    A court clerk sent a response to Mr Finlayson by email. It said 'I will try to and arrange either a phone or video link for you to appear when the matter is mentioned'.

85    On 20 August 2020, there was a hearing before Acting Magistrate Byrne in respect of Mr Pauga. It is common ground that Mr Pauga was not physically present before the learned Magistrate and remained in the Brisbane Watch House.

86    The transcript of the hearing indicates that at 1.00 pm Mr Finlayson, who was then in Adelaide, was telephoned from a court room where his Honour was sitting. Mr McKechnie announced his appearance as counsel instructed by the Commonwealth Attorney-General's Department on behalf of Samoa. The Magistrate then addressed Mr Finlayson in the following terms:

Mr Finlayson, thank you for your appearance. This is Brisbane Magistrates Court 2. I've had the advantage of being informed by Mr McKechnie of the Commonwealth Attorney-General's Department that you have come to a mutual agreement that this matter is to be re-mentioned in early September; is that correct?

87    Mr Finlayson responded 'That's correct'. After some discussion as to the precise time and court room for the re-mention, Mr McKechnie then said:

… I don't want to speak out of turn, but I understand that my friend might be considering making a bail application. If that's the case, then it may be a number of hours. If it is just a case of setting further directions for the timetabling of the matter, then 10 minutes - - -

88    The Magistrate indicated that to be safe the matter would be listed for two hours and it would be 'an extradition hearing' and Mr Finlayson then said that it would be 'by the telephone'. Then the Magistrate asked:

All right. And it's by consent that the defendant's going to be remanded in custody and appear by video?

89    Mr McKechnie then responded 'Yes', a response to which Mr Finlayson did not demur. Then Mr Finlayson said: 'Your Honour, we also seek liberty to apply for bail in the interim, if we need to foreshadow that'.

90    Mr Finlayson was not informed that Mr Pauga was not present at the hearing on 20 August 2020. He has deposed to a personal belief that Mr Pauga had been brought and was physically present before the magistrate throughout that hearing. He was not cross-examined and it was not suggested that the statement of belief should not be accepted.

91    On 20 August 2020, a bench charge sheet was brought into existence and allocated a court file number (Charge Sheet). It is in a standard form. It is headed 'Magistrates Court of Queensland at: Brisbane'. It contains the details of Mr Pauga and identifies its short title as 'Arrest for the purposes of international extradition under the Extradition Act 1988 (Cth)'.

92    Endorsed on the Charge Sheet in handwriting are the appearances of Mr McKechnie and Mr Finlayson. There is also an endorsement using what appears to be a stamp plus handwriting which is in the following terms:

By consent, the Defendant is remanded to appear in Court 18 at am/pm on 3/9/2020 for / committal / mention / P of G / hearing extradition

Bail / on own undertaking / enlarged

RIC Appear / by video / in person LOP / excused

93    The options for 'mention', 'hearing extradition', 'RIC Appear' and 'by video' are circled. The word 'extradition' has been added in handwriting. Plainly, the abbreviation 'RIC' refers to remanded in custody. Underneath the above endorsements is a signature which appears above 'P J Byrne'. In the Finlayson affidavit it is described as the signature of Acting Magistrate Byrne.

94    There are subsequent endorsements in handwriting on the Charge Sheet. They are described below.

95    Mr Finlayson deposed to the fact that the details of the order made on 20 August 2020 were entered into the Queensland-Wide Interlinked Court System or QWIC database. The evidence to that effect was not challenged and is accepted.

96    A document headed 'Verdict and Judgment Record' (First Form 44) was also produced dated 20 August 2020. It was identified as Form 44, Rule 62 Criminal Practice Rules. It identified the Judicial Officer as 'P Byrne (Acting Magistrate)'. Under the heading 'Chg Offence' it said 'Extradition Warrant'. It then referred to the relevant provision of the Extradition Act for an extradition arrest warrant. Under the heading 'Date of Offence' it said 'On 20/08/2020' being the date of arrest. It referred to that date as the 'Plea Date' and under the heading 'Verdict/Result' said 'ADJOURNED'.

97    Then under the heading 'Judgment or Order of the Court' the First Form 44 referred to the case file number and stated:

REMAND IN CUSTODY - Conviction not applicable

It is ordered that the defendant be remanded in custody

…

It is ordered that the proceedings for TALALELEI PAUGA be adjourned for HEARING to COURT 18 - 363 GEORGE STREET, MAGISTRATES COURT at BRISBANE on 03/09/2020 at 09:00 AM.

The defendant's personal appearance is required by video link.

98    The First Form 44 was signed 'PROPER OFFICER' and a seal was affixed for 'MAGISTRATES COURT BRISBANE'. Similar records in the same form were produced for subsequent appearances.

99    A few days later, on 24 August 2020, Mr Pauga was taken to the Correctional Centre. It appears that the First Form 44 was relied upon as the basis for his detention at the Correctional Centre. Subsequent Form 44 documents in similar terms were produced after each further hearing before a Queensland magistrate and were treated as the basis for his ongoing detention. Eventually, after the July Hearing, the Warrant of Committal became the basis upon which Mr Pauga continued to be held in the Correctional Centre.

100    On 2 September 2020, a registrar sent an email in the following terms to Mr Finlayson:

I understand you currently act for Mr Pauga on his extradition matter listed before Brisbane Magistrates Court tomorrow, 3 September 2020.

Can I please confirm whether you require your client by videolink tomorrow, 3 September 2020.

Thank you in advance for your urgent clarification in this matter.

101    Mr Finlayson responded with an email in the following terms:

Yes we do require our client's attendance.

It would assist also if there were some indication of the time when the mater (sic) is likely to be called on.

102    As to this communication, Mr Finlayson deposed:

On 2 September 2020, I emailed Registry of the Brisbane Magistrates Court confirming that I required my client's attendance before the Court for the hearing the next day.

His statement is somewhat inaccurate when regard is had to the emails. In particular, he neglects to refer to the reference to 'videolink'.

103    On 3 September 2020, Mr Pauga's matter was called on before Magistrate Gilbert. After Mr McKechnie announced his appearance for Samoa, he noted that Mr Pauga was going to be appearing by video link and Mr Finlayson was dialling in. The learned Magistrate then said:

There might be some difficulty with that video link actually taking place, and Mr Finlayson has indicated that he did want Mr Pauga to appear on the video link. We're waiting for confirmation due to the restrictions on video links taking place. I might just see if my clerk can [confirm?] that Mr Pauga won't be produced on the video link today. We should alert Mr Finlayson to that.

104    When the matter resumed, Mr Mancini announced his appearance as counsel for Mr Pauga and noted that Mr Pauga was not present but was in custody at the Correctional Centre and after referring to problems in being able to speak to Mr Pauga sought an adjournment for a short period 'to have him appear'. The Magistrate then inquired whether Mr Mancini meant appear by video link. Mr Manini responded 'Whether by video link or -yes, yes'. The Magistrate then indicated the difficulties with securing video links and said there was no guarantee that it would take place on the next occasion.

105    Mr Mancini then responded:

… otherwise, your Honour, we were going to seek an adjournment for a period of four weeks, but we - I don't want to leave it [in?] limbo for that period of time.

106    After raising with counsel their availability, the Magistrate then said:

With respect to the matter of Talalelei Pauga, the matter is adjourned for an extradition hearing to take place on the 11th of September 2020, in court 18. We'll nominate 9 am. The defendant, Mr Pauga, is to appear by video link on the next occasion and I order a letter of production for his appearance by video link on the next occasion. He is otherwise remanded in custody. Anything further required?

107    In response to the question from the Magistrate, Mr Mancini indicated that they would 'like to obtain a copy of the documents on the court file and can we just do a request in a copy from the registry' (sic). The Magistrate confirmed that could be done.

108    There is an endorsement on the charge sheet dated 3 September 2020 which appears to state:

Adjourn for extradition hearing 11/9/2020

Court 18 9 am

LOFP by V/C on the next occasion

To consider if appearance by deft necessary on next occasion

RIC

109    The endorsement is signed above the notation 'R Gilbert'.

110    The hearings on 24 August 2020 and 3 September 2020 coincided with a period when 'lock downs' were occurring and restrictions on movement had been imposed as precautions to deal with the COVID-19 pandemic.

111    On 11 September 2020, the matter was called on before Magistrate Gilbert. Mr McKechnie indicated that he had spoken to Mr Finlayson and he was authorised to communicate for both parties that an adjournment was sought until 18 September 2020 because Mr Finlayson was still unable to get complete instructions and that Samoa consented to the adjournment. After a further exchange with Mr McKechnie, the Magistrate then said:

So I'll adjourn it to 18 September 2020, mention, court 19 in the Commonwealth call over at 9 am. Defendant's remanded in custody. Appearance - well, I'm just wondering whether to make his appearance required by video.

112    Mr McKechnie responded that Mr Finlayson had indicated that he did not require appearance at that occasion. He said that he assumed that what will happen is that if Mr Finlayson has instructions there will be a timetable for a bail application, 'exchange of materials and evidence and find a suitable date for hearing'. There was no suggestion that the communications by Mr McKechnie to the Magistrate on 11 September 2020 did not reflect matters that had been agreed with Mr Finlayson.

113    There is a notation on the Charge Sheet which records a consent adjournment to 9.00 am on 18 September 2020 for mention. It records that the defendant did not appear and the defendant is remanded in custody and an appearance is not required for the next hearing. It appears to record that Mr Pauga was remanded in custody.

114    Mr Finlayson deposed that:

On 12 September 2020, I was instructed by Mr Pauga for the first time, that, since his arrest he had not been brought before a magistrate, had not appeared by audio visual before a magistrate and had not been attended upon in custody by a magistrate at the hearings conducted on 20 August 2020, 3 September 2020 and 11 September 2020.

115    Of course, expressed in those terms, the statement does not reflect the full extent of the events up until that time and the nature and extent of Mr Finlayson's knowledge from participating in those events.

116    Nevertheless, on 14 September 2020, Mr Finlayson wrote to the Chief Executive asserting that there was no lawful authority for the detention of Mr Pauga by reason of various matters, including an alleged failure to comply with s 15(1) and (2) of the Extradition Act.

117    On 18 September 2020, Mr Pauga's matter came before Magistrate Gett. On that occasion Mr Mancini appeared for Mr Pauga and applied for his release. He put the nature of the application in the following terms:

It's an application to your Honour as persona designata under the Extradition Act and it's on the basis ultimately that his detention from the day of his arrest is unlawful or irregular. And so rather than take habeas corpus and declaratory relief under the Human Rights Act your Honour's the first for the court.

118    Mr Mancini pressed his application for immediate hearing on the basis that it concerned the liberty of Mr Pauga and submitted that 'liberty of the subject takes priority over the administrative functions of the state'. He also advanced a submission to the effect that, because the hearing was not a court hearing, privacy should be preserved by having any hearing not open to the public. He also maintained that there was a requirement for Mr Pauga to appear in person irrespective of any order that might be made and that was because the magistrate was acting as a persona designata and not making any orders as a court.

119    The magistrate indicated that any application would have to be heard at a later time and that the matter would be adjourned to 21 September 2020. Mr Mancini persisted with a submission that Mr Pauga was required to be present in person at that hearing and the magistrate ordered a letter of production.

120    On 21 and 22 September 2020 there was a hearing before Magistrate Merrin during which Mr Mancini presented numerous contentions as to why Mr Pauga was alleged to be unlawfully detained. When the matter was first called on, Mr Pauga was not present despite a letter having been issued requiring his personal appearance. The matter was adjourned for a short time and arrangements made for Mr Pauga to be brought to the Queensland Magistrates Court. The hearing proceeded with Mr Pauga being physically present. The contentions advanced by Mr Mancini in support of the application included claims that Mr Pauga had not been physically brought before a magistrate after his arrest as required by the Extradition Act and submissions based upon the significance of Magistrate Byrne being an acting magistrate in the context of magistrates acting as persona designata in extradition matters. Mr Pauga was remanded in custody at the end of the hearing on 21 September 2020 and was physically brought before the magistrate the following day. At the conclusion of submissions Magistrate Merrin reserved her decision and remanded Mr Pauga in custody.

121    In the course of the hearing, those acting for Mr Pauga also filed a separate originating application seeking a declaration under the Human Rights Act 2019 (Qld) that Mr Pauga's detention was unlawful and an order for his release.

122    On 25 September 2020, Mr Pauga was again brought before Magistrate Merrin. Her Honour gave reasons dismissing the application made in the extradition proceedings for the release of Mr Pauga. At the conclusion of delivery of the reasons Mr Mancini was asked whether there was any application for bail and he said that there was no bail application. At that point an oral application was made for Samoa in the following terms:

Your Honour, in those circumstances Samoa formally applies for proceedings to be conducted pursuant to section 19 of the Act. That is the next stage of the proceedings to determine Mr Pauga's eligibility for surrender. What would usually happen is that those proceedings are timetabled with the exchange of materials and submissions.

123    Mr McKechnie as counsel for Samoa then pointed out the terms of s 19 of the Extradition Act and submitted that there was a jurisdictional prerequisite that the parties have had enough time to prepare. He indicated that Samoa could file its material and submissions by 16 October 2020 and after allowing time for material from Mr Pauga proposed a hearing on about 16 November 2020. Mr Mancini sought a remand for 60 days which was declined. In response to a statement from Magistrate Merrin to the effect that, having regard to the detailed submissions had already been given, Mr Mancini must be familiar with the process and must have expected that the matter would need to proceed if his claim that Mr Pauga should be released was unsuccessful, Mr Mancini then made the following submission:

Not at all your Honour. Not at all. Please don't assume that I have firstly, that knowledge; and secondly that the ordinary courtesy of notification by the other side can be simply dispensed with. I would like to consider my client's position, obtain instructions about the application and about anything further, and before anything further is done, and including the disqualification of your Honour from making any order today, we would ask for a remand and adjournment to consider our position.

124    After further submissions, Magistrate Merrin confirmed with Mr McKechnie that he was bringing the application for proceedings to be conducted under s 19 of the Extradition Act. Mr Mancini persisted with a recusal application in respect of the making of any timetabling orders for the purposes of the s 19 application. The recusal application was refused and Magistrate Merrin said:

So all I am saying, Mr Mancini, is I am going to make a direction for you to be provided with material so that you can then respond on the next occasion to the Court and advise them how much time you might need and the matter can be set for hearing, because whoever presides at the hearing, which will not be me - I will recuse myself from the hearing, I have no difficulty with that, will need to be satisfied that you've had sufficient time that's as set out in section 19, subsection (1), subparagraph (d).

125    Then a direction was made requiring Samoa to file and serve material and submissions by 16 October 2020 and otherwise adjourning the matter. Mr Mancini then pressed the magistrate to identify the source of the power to make the direction. Magistrate Merrin responded:

Mr Mancini, I am making these directions, and, as I see it, as persona designata I'm permitted to make directions, make decisions in accordance with proper processes to allow the matter to proceed, and, as I see it, upon application by here - Samoa - I need to consider what to do in those circumstances, so adjourned to - which date did you suggest? Perhaps to 30 October. To court 20 on 30 October, at 9 am. Mr Pauga is remanded in custody and is to appear by video link. it's just intended the matter's only for mention on that date … So Mr Pauga is remanded in custody. His appearance is by video link.

126    Thereafter, an application was made in the Supreme Court of Queensland to remove the application under the Human Rights Act into the Supreme Court.

127    On 16 October 2020, Samoa filed and served its written submission and material that it relied upon in relation to the hearing to be conducted under s 19 of the Extradition Act concerning the eligibility of Mr Pauga for surrender. Those acting for Samoa sent an email to Mr Finlayson which said:

We refer to the above matter and to the submissions served earlier today by Samoa regarding your client's eligibility for surrender under section 19 of the Extradition Act 1988 (Cth).

For your assistance, we advise that, at the next mention on this matter on 30 October 2020, Samoa intends to seek further timetabling orders to prepare for the hearing on eligibility for surrender.

In particular, Samoa intends to propose that:

•    the Respondent file and serve submissions and material that he intends to rely upon by 13 November 2020 (noting that this is one month from service of our submissions and material in chief);

•    the Applicant file and serve submissions and material in reply to by 27 November 2020;

and

•    the hearing on eligibility for surrender be listed for one day on a date suitable to the magistrate and the parties

We would be grateful for advice as to whether your client agrees with this proposed approach to next steps in the matter.

128    By email in response, Mr Finlayson said:

Please find attached our application to Magistrate McLeod made on 15th October 2020. Magistrate McLeod will hear … our application for directions at 11:30am on Monday 26th October at the Adelaide Magistrates Court Building, Victoria Square Adelaide.

129    The attachment was a letter to the Duty Magistrate in Adelaide and an application under s 19 of the Extradition Act to determine the eligibility of Mr Pauga for extradition.

130    On 26 October 2020, Magistrate McLeod adjourned the matter brought before him to 9 December 2020 without making any finding as to whether the application could or should be accepted. It appears that the proceedings in Adelaide went no further.

131    On 30 October 2020, there was a hearing before the Primary Magistrate in Brisbane. Mr Pauga appeared by video link.

132    At the commencement of the hearing, counsel for Samoa explained that there was an application under the Extradition Act in which Samoa sought the extradition of Mr Pauga. He said that, before Magistrate Merrin, Samoa had made an application for proceedings to be conducted under s 19 of the Extradition Act and her Honour had timetabled the filing of material by Samoa and listed it for mention. He sought timetabling of filing of submissions and material by Mr Pauga.

133    Initially an application in the following terms (dated 29 October 2020) was pressed by Mr Mancini:

1.    Dismissal of such proceedings as may be extant before a magistrate of the Magistrates Court of Queensland.

2.    In the alternative an adjournment pending the outcome of Supreme Court of Queensland at Brisbane proceedings 10635/20 and Magistrates Court of Queensland proceedings at Brisbane M2439/20 [being the proceedings under the Human Rights Act]

3.    A determination that Talalelei Pauga is not on remand under section 15 of the Extradition Act 1988.

4.    That the magistrate call for all transcripts of proceedings before each other Magistrate or Acting Magistrate.

5.    That the magistrate decline to exercise any function under the Extradition Act 1988.

6.    That such magistrate of the Magistrates Court of Queensland as is seized of any proceedings as may be extant, determine that such magistrate does not have any present power, duty or function in respect of such proceedings.

7.    That any magistrate have on file all transcripts of bearings, correspondence, applications, affidavits and documents as have been produced in the course of proceedings to date.

134    Mr Mancini referred to the proceedings under the Human Rights Act as proceedings that 'might be loosely categorised as habeas corpus type proceedings'. He said they were going to resume in the Supreme Court on 6 November 2020. Otherwise, rather than have directions made, he sought to have the application dated 29 October 2020 listed for argument on the basis that Mr Pauga was entitled to bring a challenge to his detention under the Extradition Act. Quite properly, the Primary Magistrate then asked 'Haven't you already done so and you were refused?' to which Mr Mancini responded in the affirmative. However, he maintained that, in effect, he had more evidence and he was entitled to make a further application.

135    A submission was advanced by Mr McKechnie for Samoa that having regard to the various applications that had been made, that Mr Pauga was wasting everyone's time and engaging in vexatious litigation by seeking to re-litigate the same issues in different places. Samoa sought directions timetabling the proceedings. In that regard, the following submission was advanced:

Samoa has made a valid extradition request and is entitled to pursue it, so those are my submissions. In term of timing, ordinarily in these matters, someone in Mr Pauga's position would be given a month. If your Honour looks at section 19 of the Act, one of the jurisdictional prerequisites is that a magistrate needs to be satisfied that the parties have had adequate time to prepare. Samoa accepts that these matters can, sometimes, be complicated, and have prepared to, sort of consider, whatever a reasonable time is for the filing of that material. But it's not prepared to have this matter adjourned off to the never never whilst Mr Pauga makes application after application, after application.

136    The Primary Magistrate then proceeded to receive submissions and materials in support of the application dated 29 October 2020. Then after a period of submissions, Mr Mancini sought an adjournment which was refused. There were further exchanges between counsel and the Primary Magistrate. Eventually, the application was withdrawn. Mr Mancini then made inquiries as to whether there was an application under s 19 of the Extradition Act that was before the Primary Magistrate which led to an exchange about the oral application that had been made before Magistrate Merrin at the time that Samoa had been directed to file its materials in support of its application to have the proceedings conducted. At the conclusion of that exchange the Primary Magistrate said:

I accept that her Honour, Magistrate Merrin, had an oral application under section 19. She has made directions for the filing of material pursuant to that application, those directions have been met and she's made a note prior to that, that the application is to proceed in accordance with section 19 of the Extradition Act. I accept that the Court has an application to proceed pursuant to section 19 and is intending to proceed on that basis. I'm now going to make a direction that Mr Pauga file and serve any submissions in response to those filed by Samoa before 4 pm on the 27th of November 2020.

137    Mr Mancini then indicated that he was 'going to ask for a little bit longer'. He then asked for the time to be until 11 December 2020. Subsequently, Mr Mancini indicated that what he was proposing to do was not file substantive submissions in response. Rather, he was going to put on evidence as to the steps that were proposed to be taken to gather the material to be relied upon to raise extradition objections. It was articulated by him in the following way:

Your Honour, just to be clear, but there's at least a number of stages that we have to go through. One is concerning whether the Samoan materials can be relied upon for the purposes of extradition proceedings continuing; the next question will be whether we've had time and whether time is required to be had - being a reasonable time to then have a hearing effectively on extradition objections. Now we've been working on that ­ those questions, but these are complex issues and they're going to require international law considerations, expert evidence and other things. Some - witness summonses by a magistrate; potentially an application to the Supreme Court under the mutual assistance legislations for evidence to be obtained in Samoa; any hearing is going to take in excess of two weeks and we have to be ready for that. So what we're seeking to do, it's advancing these matters - we will put in some responding submissions and set out some evidence by affidavit of what we have to do. And we'll do that in time for the 11th.

138    However, the Primary Magistrate then made a direction for the filing of submissions in response to Samoa's submissions by 4.00 pm on 10 December 2020 and listed the matter for mention in the call over of Commonwealth matters on 11 December 2020. Mr Mancini asked if the mention would be before the Primary Magistrate to which her Honour responded that she did not know and then said 'I do not consider that I'm seized of this matter as there is no ongoing application before me'.

139    There is no note on the Charge Sheet of any order remanding Mr Pauga. The transcript that was in evidence does not record the making of an order. However, there is a Form 44 dated 30 October 2020 which states: 'It is ordered that the defendant be remanded in custody'. There was no attempt to impeach that record (which was produced by Mr Finlayson as an attachment to one of his affidavits) and it should be accepted as evidence establishing that there was such an order. Of course, the claim that the Form 44 was invalid for various other reasons (along with the other Form 44s) will need to be considered. However, as a matter of fact, I determine that there was an order remanding Mr Pauga in custody.

140    On 6 November 2020 there was a hearing before Martin J of the Supreme Court of Queensland of action 10635/2020, being the proceedings under the Human Rights Act. Leave was given to Mr Pauga to file an amended originating application in those proceedings seeking the issue of a writ of habeas corpus. The matter was listed for hearing on 16 December 2020. The amended application was in the following terms:

1.    That a writ of habeas corpus issue to the Chief Executive Queensland Corrective Services that Talalelei Pauga be brought before the Court and submit to the further order of the Court as to his custody.

2.    That Talalelei Pauga forthwith be released from the custody of the Chief Executive Officer of the Queensland Corrective Services.

3.    That Talalelei Pauga forthwith be released from custody at Arthur Gorrie Corrective Centre.

141    The following consolidation of grounds for the application was also provided:

1.    The detention in custody of Talalelei Pauga has been and continues to be wrongful or irregular.

2.    A person holding the office of a Magistrate in Queensland is not acting in the capacity of a magistrate when carrying out any functions as a persona designata under the Extradition Act 1988. Such a person is acting in their personal capacity and not as a court or a member of a court pursuant to section 45B of the Extradition Act 1988.

3.    The Magistrates Court of Queensland does not have jurisdiction to remand Talalelei Pauga and the Forms 44 of the Queensland Magistrates Court were made without jurisdiction or in the alternative exhibit an error of law on their face in purporting to be instruments of the Queensland Magistrates Court exercising powers under the Extradition Act 1988 (Cth) which powers the Magistrates Court of Queensland does not have.

4.    Mr Pauga was not brought before a magistrate as a persona designata as soon as practicable as required by section 15 of the Extradition Act 1988 following his arrest on [the] extradition arrest warrant and his imprisonment became unlawful at the end of the time in which he might reasonably practically have been brought and any purported orders of remand of Mr Pauga were in excess of jurisdiction in the absence of Mr Pauga having been brought as soon as practicable or at all before a Persona Designata.

5.    At the time of the Queensland Arrangement the office of Stipendiary Magistrate was an office under the Justices Act, there being no office of 'acting magistrate'.

6.    'Magistrate' is defined in section 5 of the Extradition Act 1988 as, inter alia, 'a magistrate of a State or the Australian Capital Territory in relation to whom an arrangement is in force under section 46'.

7.    Section 46(1) of the Extradition Act 1988 provides that the Governor-General may arrange with the Governor of a State for the performance, by all or any persons who from time to time hold office as magistrates of that State, of the functions of a magistrate under the Extradition Act 1988.

8.    An acting magistrate is not included in such arrangements. An acting magistrate does not hold office as a magistrate in the State of Queensland and the office of acting magistrate was not either in existence at the time of, or in the contemplation of the arrangement entered into between the Governor-General of the Commonwealth and the Governor of Queensland of 30 November 1988.

9.    Section 6 of the Magistrates Act 1991 (Qld) provides for the appointment of acting magistrates. By virtue of section 6(6) a person who is appointed to act as a magistrate acts as a magistrate only when directed by the Chief Magistrate to carry out the duties of a magistrate. By virtue of section 6(7), the Magistrates Act 1991 and other Acts apply to the person acting as a magistrate as if the person were a magistrate.

10.    The appointment of an acting magistrate is not to the office of a magistrate and is to be contrasted with the appointment of a magistrate under section 5. A magistrate exercises all the jurisdiction, powers and functions conferred on a magistrate by or under the law of the State by virtue of section 8.

11.    However, an acting magistrate does not exercise the jurisdiction, powers and functions of a magistrate under section 8. Rather, an acting magistrate acts with limitations as prescribed by the directions of the Chief Magistrate to carry out the duties of a magistrate, as distinct from the jurisdiction, powers and functions of a magistrate in the statutory office of a magistrate of the Magistrates Court.

12.    Therefore, Acting Magistrate Byrne purporting to do anything in respect to Mr Pauga on 20 August 2020 was not empowered to do so. He was not capable of exercising any powers under the Extradition Act 1988 because, as merely an acting magistrate, he was not a magistrate, had limitations upon him in his role as an acting magistrate and was not identified in that role as a persona designata for the purposes of the Extradition Act 1988 or the Queensland Arrangement.

13.    Insofar as the Acting Magistrate presiding on 20 August 2020 held any office, he held the office of an acting magistrate and not the office of a magistrate. This is further established by section 50 of the Magistrates Act 1991.

14.    Any purported remand of Mr Pauga by the Acting Magistrate was not authorised by the Magistrates Act 1991 nor the Extradition Act 1988, was beyond power and in excess of jurisdiction.

15.    The Acting Magistrate presiding on 20 August 2020 was not a magistrate for the purposes of section 15 of the Extradition Act 1988 which required that Mr Pauga be brought before a Persona Designata, as distinct from an acting magistrate.

16.    The attendance on 3 September 2020 before a magistrate did not have Mr Pauga in attendance. He was in custody at the Brisbane watch house and had not been brought. Any remand of a person in custody requires that the person attend or appear at the conclusion of the period of each remand to be further remanded or otherwise dealt with according to law. It is a fundamental requirement that the person appear or attend so as to engage a Persona Designata's power to again remand. A person cannot be lawfully remanded in custody in the absence of appearance by the person. It is by virtue of a warrant of remand, warrant of commitment, order for remand or Form 44 Rule 62 Criminal Practice Rules Verdict and Judgment Record that a person is lawfully remanded in custody and the requisite legal authority exists for detention and admission to a corrective services facility as required, being necessary but not sufficient, by section 9 of the Corrective Services Act 2006.

17.    The proposed listing of the extradition matter on 30 October 2020 ought not occur in the Magistrates Court of Queensland as it has no jurisdiction to deal with the matter and a prohibition injunction ought issue.

18.    The proceedings on each occasion on 3 September 2020, 11 September 2020, and 18 September 2020 did not take place m accordance with the applicable Magistrates Court Practice Direction, that is, Practice Direction No. 5 of 2020 which repealed 'Practice Direction No. 3 Appearance of persons in custody -use of video link facilities', issued by the Chief Magistrate and dated 7 April 2020, to the extent that such Practice Direction was applicable. Exhibited and marked GJFl is a copy of Practice Directions No. 5 of 2020 and Practice Direction 3 of 2020.

19.    The applicant was not taken before the proposed Fourth Respondent by the watch house officer responsible for the applicant's custody on 20 August 2020 contrary to Order 10.4.2 of the Queensland Police Operational Procedures Manual, issued by the Commissioner of Police pursuant to the provisions of section 4.9 of the Police Service Administration Act 1990, so that the applicant could be dealt with according to law. Exhibited and marked GJF2 is a copy of Chapter 10 of the Queensland Police Operational Procedures Manual.

20.    The applicant was not taken before the proposed Fourth Respondent by a prescribed police officer at the watch house on 20 August 2020 contrary to section 394(2)(d) of the Police Powers and Responsibilities Act 2000 (the PPRA).

21.    The officer in charge at the relevant time or the watch house manager did not ensure compliance with the warrant issued under section 12 of the Extradition Act 1988 pursuant to which the applicant had been arrested and delivered into the custody of the officer in charge of the Brisbane Watch house on 20 August 2020 contrary to section 395 of the PPRA.

22.    The applicant was not taken before the proposed Fourth Respondent on 20 August 2020 contrary to section 393 of the PPRA by the relevant police officer contrary to section 393(l)(d) of the PPRA, to the extent that it was applicable.

23.    The first respondent did not have the authority to admit and detain the applicant in accordance with section 9 of the Corrective Services Act 2006 (the CSA).

24.    The first respondent relies upon the Form 44 Verdict and Judgment Record issued in respect to the applicant on 20 August 2020, 3 September 2020, 11 September 2020, 18 September 2020, 21 September 2020, 22 September 2020, 25 September 2020 and 30 October 2020. The only proper and lawful authority which may have been relied upon by the Respondents pursuant to section 9 of the CSA was a warrant for the detention of the applicant as required by section 9(1)(c) of the CSA.

25.    The use of the Form 44 Verdict and Judgment Record on each occasion was irregular and not authorised by Rule 61 of the Criminal Practice Rules as there had not been a verdict or judgment given in respect to the applicant, and the applicant was required to be before a magistrate acting in his or her personal capacity and not acting as a court or as an officer of a Magistrates Court.

26.    Pursuant to section 69(1) of the CSA the first respondent was required to produce the applicant to the hearings taking place on 3 September 2020, 11 September 2020, 18 September 2020 and 30 October 2020. The applicant was not produced. As a result the detention of him by the first respondent from 3 September 2020 was not authorised.

27.    No remand was made during the hearing before [the Primary Magistrate] on the 30th October 2020.

28.    Insofar as it may have been noted by [the Primary Magistrate] subsequent to the hearing on 30th October 2020 that the applicant was remanded in custody this act of notation:

a.    did not amount to a lawful authority for remand of the Applicant;

b.    was performed in a manner which denied procedural fairness to the Applicant;

c.    did not form a lawful basis for the issue of the Form 44 dated 30 October 2020.

29.    The form 44 of 30 October 2020 was issued by the Magistrates Court of Queensland without affording procedural fairness to the Applicant including to make submissions that it ought not be created and issued by the Magistrates Court of Queensland in the circumstances.

30.    It is impermissible to undertake proceedings under the Extradition Act 1988 in the sessions of, in association with all the usual manifestations and features of, or resort to the seal of, the Magistrates Court of Queensland.

142    On 10 December 2020, Crow J of the Supreme Court of Queensland determined applications to set aside subpoenas issued at the request of Mr Pauga and an application by Mr Pauga for production of documents.

143    On 11 December 2020, written submissions were filed for Mr Pauga in the extradition proceedings. They began with a section headed 'Jurisdiction'. It set out short submissions to the effect that the jurisdiction being exercised in the extradition proceedings was administrative. It then had a section headed 'Jurisdictional facts or prerequisites'. It described the Four Pre-Conditions and set out reasons why they were said not to be met. As to whether Mr Pauga had been given reasonable time to prepare it submitted that a reasonable time to collate and present extradition objections was 24 to 36 months. There was very little in the written submissions to explain why that might be so.

144    The submissions ended with the following conclusion:

At this stage Mr Pauga submits that this matter ought to be allocated to a magistrate who becomes the magistrate dealing with and responsible for the s19 process. That allocation ought be performed in a considered fashion rather than appearance in a rostered list. A section 19 application ought be taken out of the Court and any manifestation or ability to conflate the persona designate [sic] with the Court. Procedural processes ought be clarified. There ought be recognition at this stage that the reasonable time to prepare for the hearing is in the order of years not weeks.

145    At the mention hearing before the Primary Magistrate on that date, Mr Pauga appeared by video link. Counsel for Samoa proposed that Mr Pauga be directed to file a report by a date in January as to the progress of preparations to date and a plan as to what is still to be done.

146    Mr Mancini did not oppose the course of an adjournment for the proposed purpose of providing a report. He also asked for the matter to be allocated to a particular magistrate. In the result, the matter was relisted for 12 February 2021 for mention. A direction was made requiring Mr Pauga to file and serve by 4.00 pm on 5 February 2021 a written plan as to the evidence, reports or witnesses to be relied upon and a timetable as to when they will be available. Mr Pauga was remanded in custody with a direction that he appear by video on 12 February 2021.

147    Written submissions were filed in the Supreme Court proceedings on 15 December 2020.

148    The submissions for Mr Pauga began by raising a version of the course of the extradition proceedings up until 11 December 2020 and the course of the proceedings in the Supreme Court. It then advanced the following propositions:

(1)    'Relief by way of habeas corpus is available to the applicant. He asserts that his detention from 20 August 2020 has been unlawful'.

(2)    There was a failure to comply with the legislative requirements at the hearing on 20 August 2020.

(3)    The Chief Executive had not given any sufficient explanation or identified sufficiently the reason for Mr Pauga's detention.

(4)    The Extradition Act does not deprive the Supreme Court of its jurisdiction to entertain relief in the nature of habeas corpus.

(5)    The Extradition Act required that Mr Pauga had to be brought before a magistrate as soon as reasonably practicable after his arrest.

(6)    Mr Pauga was not before Acting Magistrate Byrne when the proceedings were called on at 1.00 pm on 20 August 2020.

(7)    Acting Magistrate Byrne did not pronounce any order of remand.

(8)    Nothing occurred during the four day period that Mr Pauga was in the Brisbane Watch House to have him brought before a magistrate.

(9)    The jurisdiction of the magistrate can only be enlivened if the person arrested is brought before the magistrate.

(10)    Insofar as there was any order for remand by Acting Magistrate Byrne (which is disputed) it was without jurisdiction or power.

(11)    Mr Pauga's detention was unlawful under the Human Rights Act.

(12)    'The precondition to the conduct of the section 19 extradition proceedings required compliance with section 15'.

(13)    The precondition to remand on 20 August 2020 and any further remand thereafter was compliance with the brought before requirement in s 15.

(14)    At the point of any order for remand on 20 August 2020 and 'thereafter to date' the detention of Mr Pauga has been unlawful, in breach of the Extradition Act and not regular or sufficient for the purposes of Mr Pauga's continuing detention at the Brisbane Watch House or at the Corrective Centre.

(15)    Nothing that has occurred since can and has made his detention lawful nor could it.

(16)    Anything done by Acting Magistrate Byrne as a persona designata was not of any effect and it was as if it were never done because an acting magistrate was not empowered to carry out any power, duty or function under the Extradition Act.

(17)    'Each and every Form 44 that issued are not those of any Magistrate. The only order of remand that could give effect to the remand of [Mr Pauga] would be an order made by a Magistrate in their capacity as a persona designata'.

(18)    Each of the Form 44s were forms of the Magistrates Court of Queensland and were forms prescribed in its criminal jurisdiction and the forms may not be used in the context of a magistrate acting as a persona designata under the Extradition Act.

(19)    A form of warrant for the remand of Mr Pauga was required by the Extradition Act.

(20)    As Mr Pauga was not transferred to court on 3, 11 and 18 September 2020, any order for remand was not valid because it requires the presence of the person on remand in order for there to be further remand.

(21)    'The operation of the statutory regime for audio visual appearance by an accused person under the relevant provisions of the Justices Act is not a substitute or alternative for the ordinary requirements of remand under the [Extradition Act]'.

(22)    'Any order of the Magistrates Court of Queensland purporting to be based on the Extradition Act is a nullity'.

149    The hearing in the Supreme Court of the amended application for relief by way of habeas corpus proceeded on 16 and 17 December 2020. The decision of Crow J on the application was reserved.

150    On 18 December 2020, Crow J delivered oral reasons dismissing the application. In those reasons, his Honour:

(1)    found that it was on 21 September 2020 that Mr Pauga was for the first time brought before a magistrate in accordance with s 15(1);

(2)    there was ample evidence to explain what had occurred between 20 August 2020 when Mr Pauga was arrested and 21 September 2020;

(3)    what had occurred was an unfortunate consequence of the COVID-19 pandemic;

(4)    Mr Pauga could not be brought to Court until 21 September 2020;

(5)    a claim that a remand by use of a Form 44 was not a proper remand was rejected as a basis for claiming that Mr Pauga had not been lawfully detained on the basis that it contained all the necessary elements to constitute a warrant for the purposes of s 6(1) of the Corrective Services Act 2006 (Qld);

(6)    a claim based upon the Human Rights Act that Mr Pauga's detention was unlawful had a fundamental problem because Mr Pauga was being detained not on the authority of a public entity of the State of Queensland but by the action of a magistrate as a persona designata acting in an administrative function under the Extradition Act of the Commonwealth; and

(7)    concluded, based on the above findings of fact and law (and other findings) that the amended application for the issue of a writ of habeas corpus or for an order for release of Mr Pauga should be dismissed.

151    It may be noted that the reasons of Crow J rest upon findings based upon evidence before Crow J concerning the difficulties that arose as a result of 'lock downs' and other steps being taken to limit movements, including the movement of persons in custody, by reason of the COVID pandemic.

152    On 5 January 2021, an application was brought by Mr Pauga to recall and reopen the decision of Crow J.

153    On 12 February 2021, the extradition proceedings were mentioned before the Primary Magistrate. Although a request for Mr Pauga to appear in person had been granted, Mr Pauga had not been brought up when the mention hearing commenced. At the hearing, Mr Mancini handed up a document that he described as a roadmap to the proceedings. He said that it complied with the earlier direction 'to the extent that we can comply'. It was a five page list of 61 items. The Primary Magistrate expressed the view that it did not comply because what was required was a written plan. That view was plainly correct when regard is had to the terms of the direction and the content of the five page list.

154    By reason of the significance that was sought to be given by Mr Mancini to the roadmap (both at the hearing and subsequently), I set out the whole of its contents:

1.    Eligibility for Extradition - Section 19 EA Proceedings

2.    Effect of Habeas Corpus Proceedings and appeals thereof

3.    Identification of 'the Magistrate' for the purpose of s19 Proceedings

4.    Consideration of Recusal

5.    Section 46B Discretion to be seized

6.    Integrity of the file

7.    Application for Legal Aid

8.    Legal Aid Samoa

9.    Legal Aid Queensland

10.    Special Circumstances Scheme

11.    Due Process

12.    Identification by the Magistrate of the procedures to be adopted and evidential rules and procedures

13.    Operation of Procedure Compliant with Privacy Act

14.    Jurisdictional Questions

15.    Operation of Section 19

16.    Outline Investigations to be Undertaken by respondent

17.    Disclosure

18.    Subpoenas

19.    Freedom of Information Processes

20.    Mutual Assistance in Criminal Matters

21.    Consensual Investigations

22.    Deposition/Evidential Hearings

23.    Savali Campaign

24.    Australian Aid to Samoan Justice

25.    Information

26.    Police Investigation of the Criminal Defamation Matter

27.    Relationship between informant and witnesses

28.    Process by which Criminal Defamation was abandoned

29.    Credibility of Potential Prosecution Witness

30.    Proces[s] by which charges were investigated against each defendant

31.    Current Process in Samoa

32.    Circumstances of Guilty Plea by Co-accused

33.    Circumstances in which the warrant has issued

34.    Executive influence on The Samoan Judicial System

35.    Constitution and makeup of Samoan Judiciary

36.    Prime Minister's Abuse of Power in Respect of the Respondent

37.    Samoan Concepts of Race and relationship between informant's clan and Pauga clan and Samoan concepts of punishment

38.    Palagi

39.    Feagaiga Institution

40.    Law in Samoa

41.    Criminal Law, Procedure and Evidence

42.    Extradition Law

43.    Prison Law

44.    Rule of Law

45.    Human Rights Law

46.    Background and correspondence in respect of extradition requests for Pauga

47.    Australia-Samoa International Law Obligations and Arrangements

48.    Samoan Political, Sociological Relationships and History

49.    Investigate Magistrates Court file

50.    List of Potential Witnesses and related Issues

51.    NZ Professor

52.    Samoan Legal Practitioner(s)

53.    Honourable Miheal Kirby (sic)

54.    Anthropologist

55.    Tuilaepa Aiono Sailele Malielegaoi

56.    Extradition Objections

57.    DFAT Officers

58.    Samoan former DPP

59.    Prime Minister

60.    Examination of Authenticity

61.    Hearing on Extradition Objections and Submissions

155    No lawyer acting reasonably could conceive of such a document as being a document of the kind that might comply with the direction made by the Primary Magistrate on 11 December 2020 (and acceded to by Mr Mancini).

156    Mr Mancini also again raised the question of 'which magistrate was going to be seized of the matter'. The Primary Magistrate indicated that she thought that she would be conducting the entire matter because 'it makes sense that it stays with one person'. Mr Mancini then foreshadowed an application for recusal. He was then invited to make the recusal application. He declined to do so and said that it would need to be prepared. In the absence of a recusal application, the Primary Magistrate indicated that she would proceed given the nature of the hearing which concerned directions. Her Honour sought an explanation as to why the earlier direction had not been complied with.

157    Mr Mancini then said that he would wait until his client was present. He maintained that the matter being discussed was a matter of substance that should not proceed in the absence of Mr Pauga. The Primary Magistrate then stood the matter down. When the matter resumed Mr Pauga was brought in. Mr Mancini began by again asking who was going to be seized of the matter, which led to further exchanges about whether that position needed to be made clear and whether there was an application to recuse for bias. Mr Mancini indicated that he would file the application. The Primary Magistrate indicated that if an application for recusal was not made as to why she could not deal with the mention hearing then her Honour would proceed.

158    Mr Mancini then began an explanation as to why he submitted that previous directions were not valid because of jurisdictional points including whether Mr Pauga had been 'brought before' a magistrate after his arrest. In effect, he sought to reargue points that had been determined by Crow J. After being asked to focus his submissions on the directions to be made, he submitted in essence that they had done as much as they could and where there were other things to be done they were set out in the 'roadmap'. Those submissions gave to the five page document that had been handed up a character which it plainly did not have. It was no more than a rather obscurely expressed list of topics with no indication of their substantive relevance, what they involved or when they might be done. Ultimately, Mr Mancini submitted that the only order that should be made was to adjourn the matter until after the outcome of the proceedings in the Supreme Court to reopen the decision of Crow J.

159    The Primary Magistrate proceeded to determine that the document described by Mr Mancini as a roadmap that had been handed up during the hearing did not comply with the previous directions made on 10 December 2021. Directions were made requiring an affidavit setting out all the steps that had been taken in furtherance of the directions made in December 2020 and any explanation as to why the directions had not been complied with. Also, Mr Pauga was directed to file and serve an affidavit as to a written plan of the evidence and reports of any witnesses he intended to call and a timetable as to when reports and statements from any such witnesses will be available. The affidavits were directed to be filed before 4.00 pm on 26 February 2021. The matter was adjourned to 12 March 2021.

160    Leave was also given, at the request of Mr Mancini, to inspect the court file. Mr Mancini sought liberty to apply to deal with any matter arising from the Supreme Court proceedings. A direction was made allowing for liberty to apply. The Primary Magistrate also indicated that any application for recusal would be heard on 12 March 2021 and that the papers for any such application should also be filed by 26 February 2021. Mr Pauga was remanded in custody until 12 March 2021.

161    Then on the following Monday, 15 February 2021, Mr Finlayson sent an email to a registrar in the Magistrates Court. It said:

I refer to the liberty to apply granted by the Court on 12 February 2021

Mr Pauga seeks that the matter be called on pursuant to that liberty to apply and will seek orders that the orders of [the Primary Magistrate] in respect of the filing of any affidavits be stayed pending the objection to jurisdiction raised by Mr Pauga in written submissions and again by his counsel on 12 February 2021 and the question of the validity of the orders made on 11 December 2020 being listed for subsequent argument on notice, heard and determined.

We request to have this matter brought on as soon as possible on 48 hours' notice (not being on 19 February 2021) for hearing by telephone for the above purpose.

162    The application pursuant to the liberty to apply came before the Primary Magistrate on 23 February 2021. Her Honour dismissed the application for a stay of the direction requiring the filing of affidavits and amended the previous direction to require that any exercise of the liberty to apply be on 7 days' notice and be in the form of a written application.

163    In the meantime, the application to recall and reopen proceedings before Crow J was heard and dismissed by his Honour on 19 February 2021. The decisions by Crow J have not been the subject of any appeal.

164    On 11 March 2021, a solicitor from the Commonwealth Attorney-General's Department acting for Samoa sent an email to Mr Finlayson which set out the history of directions made in the extradition proceedings and then said:

At present, this Department has no substantive material before it as to what steps your client has, or intends to take, to prepare submissions and material in support of extradition objections at the section 19 hearing. Based on your latest correspondence, we also understand that your client does not intend to provide further information on these matters.

In the absence of any evidence or substantive material from your client since 10 December 2021 on preparation of extradition objections, and noting that your client remains in custody, we consider currently that the appropriate course of action is to request that the matter be listed for a surrender eligibility hearing before her Honour … at her earliest convenience.

We intend to do so at the directions hearing tomorrow 12 March 2021.

Should your client wish to provide further information, or his proposed orders for the direction hearing tomorrow, we would happy to consider and advise whether this alters our proposed approach at the case management hearing.

165    The reference to a 'surrender eligibility hearing' reflects the terminology of s 19. It provides that where the matters listed in s 19(1) pertain (which include an application for proceedings to be conducted under the section and the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for such proceedings), the magistrate 'shall conduct proceedings to determine whether the person is eligible for surrender'.

166    The email from the Department met with the following response from Mr Finlayson:

Dear Ms Hemingway,

In the Magistrates Court of Queensland at Brisbane MAG-00152606/20(6) BRIS-MAG-00025579/20

Thank you for your email of earlier today.

We refer to your invitation in the last paragraph for our client to provide further information in respect of preparation of materials in support of our client's extradition objections.

Our client has always been disposed to provide such further information and indeed sought to do so with the provision of the Roadmap, the attendance at the hearing on 12th February 2021, to speak to that document and provide such further information and to do so since then. We welcome your invitation to do so and will provide that information to you in further correspondence.

Our endeavours to do so at the hearings thus far has been foreclosed by [the Primary Magistrate]. However, we take the view that does not prevent us doing so outside of the court processes.

As you would appreciate from the Responding Submissions dated 11 December 2020, the issues, investigations and contemplated materials are extensive and complex. We have been working on them. We consider that we can support the foreshadowed objections with evidence and we gave a broad estimate of the timeframe for that. The work progressing this is ongoing by ourselves, our client and third parties.

Of course, these are not the only issues which we have identified for the purpose of the Extradition Act proceedings.

It was for those purposes that we have been making applications to the Court and [the Primary Magistrate] including the Application of 29 October 2020, the Application for recusal on 12 February 2021 and applications to be heard on the matters raised in our filed submissions. None of these Applications have been heard and determined.

We respectfully suggest that it is not open to [the Primary Magistrate] to prevent our client from making such applications, and being fully heard.

We point out that, apart from the orders of the court, [the Primary Magistrate] has not done anything more than list the matter for mention from time to time, not allocated any time for hearing of any Application or submissions, not asked the parries in the usual way as to what time would be required to hear such applications and submissions, and has proceeded in a peremptory fashion in a highly congested Court list without allowing us to articulate our objections to the making of the orders which have been made.

Such issues, and the dictates of procedural fairness will not go away and need to be heard and determined. We are not abandoning any of the matters outlined in our filed submissions or Roadmap. Accordingly, we regard your invitation as a welcome method of resolving the impasse presented at Court.

We suggest that the matter be adjourned on the joint request of the parties for a period of ten weeks for us to provide the further information in response to your invitation.

We wish to raise some matters now as they are aspects of the issues which we have already identified as follows:

1.    The oral application made on 25 September 2020 is is [sic] not in accordance with the Extradition Act as it was not made to the Magistrate who is to conduct the section 19 proceedings. This is a matter of statutory interpretation and gives rise to a jurisdictional issue which needs to be heard and determined.

2.    The orders made on 25 September 2020 were not valid. This is a matter of statutory interpretation and gives rise to a jurisdictional issue which needs to be heard and determined.

3.    The same applies in respect of the orders made on 30 October 2020.

4.    The same applies in respect of the orders made on 11 December 2020.

5.    The same applies in respect of the orders made on 12 February 2021.

6.    You refer to the Roadmap and the 61 topics identified therein. We would like to explain that document and the topics to the Court for the purposes of the proceedings. We should not be precluded from doing so. We would hope that [the Primary Magistrate] would enable us to do so in due course. If she continues to preclude our client it will be a denial of procedural fairness and amount to jurisdictional error.

7.    The proposed proceedings by way of judicial review will be brought in the Federal Court of Australia and will seek relief including by way of writs of habeas corpus, prohibition, certiorari, injunction and quo warranto, and will give rise to constitutional issues including Chapter III considerations, the validity of the Arrangement under section 46 of the Extradition Act relied upon by Samoa. The proposed respondents will include the Magistrates Court of Queensland, Magistrates Previtera, Merrin, Gett and Gilbert, Acting Magistrate Byrne and the Chief Executive of Queensland Corrective Services. We are progressing preparation of those proceedings and they will be commenced as soon as practicable.

8.    In your email you indicate that the proceedings be listed for a surrender eligibility hearing. We note that you have not given notice in accordance with the orders of the Court made on 23 February 2021. We will oppose such application, and seek a dedicated hearing in respect of any such application and any other applications and submissions as may be appropriate.

We respectfully suggest that it is not in the interests of the parties and the interests of justice that there be continued contested applications when there is work to be done on the matters raised in our client's Responding Submissions and the Roadmap and to be addressed in response to your invitation for further information. Let's review the situation after we provide that further information.

167    The extradition matter next came before the Primary Magistrate on 12 March 2021. The proceedings commenced with her Honour noting that no materials had been filed in respect of the proposed recusal application. In response to her Honour's inquiry as to whether Mr Pauga was proceeding with the recusal application, Mr Mancini responded 'Yes, your Honour. But not today because we're not ready'.

168    Mr Mancini began by saying that he needed transcripts of the hearings on 11 December 2020 and 12 February 2021 which he said had been sought on 13 February 2021 (a Saturday) together with a fee waiver request. There was then an exchange about whether the recusal application should proceed because it had been listed. Mr Mancini maintained that he was not ready to proceed. The Primary Magistrate then proposed that Samoa's application for extradition be set down.

169    Mr Mancini maintained his submission that there was a fundamental question as to whether jurisdiction had been engaged. He maintained that those questions went to whether there had been any jurisdiction or power to make the directions that had been made and that question, he submitted, needed to be 'identified' and he sought to be heard about 'those questions'.

170    The Primary Magistrate proceeded to seek submissions from Mr Mancini about the listing of hearing dates for the matter on the basis that there was no application and no material before her Honour about the jurisdictional matters. In doing so, her Honour made clear:

I propose setting hearing dates today. I'll set another date for the making of any preliminary applications but I'm setting a hearing. So I would like you to address me on … when you'll be ready for a hearing.

171    Her Honour's statement resulted in the following exchange with Mr Mancini (bearing in mind there had already been two exchanges in which Mr Mancini made clear that he did not wish to proceed with any application for recusal):

MR MANCINI: For what hearing?

BENCH: The extradition hearing.

MR MANCINI: I don't understand what that is, your Honour.

BENCH: Well, I can't give you legal advice, Mr Mancini.

MR MANCINI: No, no, no, your Honour.

BENCH: It's not my role to assist you.

MR MANCINI: [indistinct] telling me your listing and has a function of how to list a hearing of an application.

BENCH: It's the extradition application … The application that Samoa has brought.

MR MANCINI: Which application is that, your Honour?

BENCH: Mr Mancini, I cannot give you legal advice. It's not - - -

MR MANCINI: I'm not asking for legal advice.

BENCH: It is not my role, all right.

MR MANCINI: Your Honour, I'm asking - - -

BENCH: It is not my role.

MR MANCINI: I'm asking your Honour, politely, for your Honour to identify the application.

BENCH: It's the application filed by Samoa for your client to be extradited to Samoa.

…

MR MANCINI: Yes. Precisely. Precisely

172    At that point counsel for Samoa asked if he might be heard and said 'The Section 19 application made by Samoa'.

173    Mr Mancini objected to the interruption. Then the Primary Magistrate said 'It's a Section 19 application for Mr Pauga's extradition to Samoa'. It prompted the following further exchange.

BENCH: It cannot be any clearer than that in this court's view. But, look, I can't assist you to understand it any more than that. It is not my role to give advice

MR MANCINI: No, no. It's not, your Honour.

MR MANCINI: No, but it's your Honour's role to identify what is the power your Honour's exercised. And the basis of - - -

BENCH: It's the power pursuant to Section 19. That's how we're proceeding.

MR MANCINI: Well-yes, your Honour.

BENCH: All right.

MR MANCINI: Put it - - -

BENCH: The ruling has been given on that already before her Honour Magistrate Merrin and I propose to set hearing dates today with any outstanding applications to be listed before another date. I'm proposing hearing dates of the 10ᵗʰ and 11ᵗʰ of June are - - -

MR MANCINI: Of - of what, your Honour?

BENCH: 10ᵗʰ and 11ᵗʰ of June.

MR MANCINI: Of?

BENCH: Of the application under Section 19.

MR MANCINI: Two days is only set aside.

174    Mr Mancini then said that he was not available on those dates. He was then asked to provide two days in June when he was available. Counsel for Samoa was then asked as to his availability and how long the hearing would take. It led to the following submission:

I'm going to make two submissions. Firstly, with regards to jurisdiction, the jurisdiction that your Honour has to determine a Section 19 application is set out in Section 19 itself. Section 19 subsection (l) contains four elements which Federal Courts, on review, often refer to as the jurisdictional requirements. And the usual practice is that they're heard at the same time. So they're - that's the first hurdle that Samoa has to overcome to get your Honour to conduct the hearing and then there's more substantive elements. And that's already in my written submissions.

(emphasis added)

175    The emphasised words assume significance because, ultimately, the July hearing proceeded on the basis that the question whether the Four Pre-Conditions had been met and the Section 19 Proceedings were considered at a single hearing. Mr Mancini raised no objection to that course. At the July Hearing and in this Court he has claimed that to proceed in that way was not permitted by the Extradition Act.

176    At that point the Primary Magistrate intervened to draw the attention of Mr Mancini to what was being said on the basis that it was answering what had been raised earlier. Mr Mancini indicated that he was listening.

177    Counsel for Samoa then continued:

The second submission I have regarding the length of the hearing goes to the issues that are to be determined. Currently, they are matters of law that rise and fall upon the extradition documents that have been filed by Samoa. The more extensive issues of questions of fact about extradition [objections] were, as your Honour has identified, the subject of the orders that Mr Pauga has repeatedly­ not only repeatedly failed to comply with but has repeatedly failed to comply with further orders of your Honour asking him why he hasn't complied. And Samoa submits that this hearing will take two days on the very clear understanding - and I'm putting this very clearly on the record - that there is to be no argument about extradition objections because today's an opportunity to put that material in. And the time has come to proceed with that hearing.

So in the absence of any of that, it's essentially legal argument only. In an ordinary matter, I would say one day. But as I said before, I accept for a matter like this that two days is appropriate.

178    After a further exchange, the Primary Magistrate indicated that the matter would be adjourned for hearing for two days on 8 and 9 July 2021 and Samoa was directed to file written submissions in reply by 10 June 2021.

179    Mr Mancini then objected to the making of directions and to the course that had been followed. Reference was made to the approach that had been proposed in correspondence prior to the hearing. It was said that 'we're going to give the information'. He stated that there was no power under the Extradition Act for a magistrate to make any order or directions of the kind that had been made. He then said that they were working on a review application. He then made the following submission:

But the review is not to do with those processes because we might at least, to exhaust our avenues or properly, fairly and reasonably, putting those matters to you so that you can consider them before we embark upon the expense and the burden of taking reviews in respect of those orders. I did say on the last occasion, your Honour, that we are advancing Federal Court proceedings and the detail of those Federal Court proceedings is actually in our email. And that's being worked on. But we're not going to rush into it. We don't have material, evidentiary material, and I've identified that for your Honour, the transcripts. We don't - and we're working on the issues around that.

Those proceedings are serious proceedings and are concerned with jurisdiction of your Honour, the functions of your Honour as a judicial officer, the functions of the Magistrates Court of Queensland and its - to use the neutral term, interference in the process under the Extradition Act and its involvement in the process of the Extradition Act. We're concerned with issues around chapter 3 and issues around prohibition and recusal of your Honour. So we can make a recusal application here and we will do so. But we made it once before, your Honour. Your Honour does - would recall that of the 12ᵗʰ of February. And your Honour dealt with it by dismissing it without anything more.

180    There was then a further exchange about whether there had been a recusal application on 12 February 2021, after which Mr Mancini returned to matters of jurisdiction with the following submission:

So your Honour, in the Extradition Act, I'd like to take your Honour to it for the purposes of these orders and understanding that nothing has been advanced by Mr McKechnie in support of any conception that your Honour has such a power. Nothing has been identified as arising in the Extradition Act in - as identifying such a power and nor has your Honour identified such a power. So I'd like to make my submissions about that question in - in the face of the failure to [indistinct] the strategic forensic failure of my learned friend to identify such a power. And for your Honour to understand that until your Honour identifies a power rather than an amorphous statement based on some submissions of Mr McKechnie, which we haven't had an opportunity to make submissions about, then we will know whether your Honour can or should exercise that power and what would be the terms of it. Because the first question is: should you exercise a power, is it a power in existence and what is the discretion that arises in respect of that power.

Now, before your Honour made any orders, I would have wanted to have been heard. We still haven't been heard on any of those things and I have submissions to make. And your Honour has studiously precluded me from making submissions about what we'd like to say about these questions, about these directions, about these affidavits and about the information.

181    Following further exchanges between Mr Mancini and the Primary Magistrate concerning whether Mr Mancini was being given an opportunity to make submissions, Mr Mancini then made lengthy submissions. They included the following:

(1)    at no stage had time been allocated to hear submissions that go to the question of power, jurisdiction or statutory interpretation;

(2)    there was unfairness in requiring Mr Mancini to develop those submissions 'on the fly' at a mention hearing;

(3)    an adjournment would be sought after the submissions had been made for further time to make more submissions;

(4)    the written submissions that had been filed (on 11 December 2020) were a 'very complex document in respect of the submissions under these extradition objections';

(5)    the directions made for a plan as to the filing of evidence and reports were made 'without hearing submissions about that';

(6)    as to the directions 'we said we're not required to and we don't want to for various reasons which were directorially dismissed without any regard to anything';

(7)    as to the five page roadmap document that was then provided, Mr Mancini said he wanted to speak to that document so as to provide a better understanding of what they were trying to do;

(8)    a repeated submission to the effect that the Primary Magistrate had no power under the Extradition Act to make directions about filing affidavits; and

(9)    the proceeding being conducted was 'as a judicial officer in a court' with everything being done in orders and directions by 'some functionary of the Registry on its orders - and not on your Honour's orders' all of which were matters to which objection was taken.

182    Then there was the following exchange:

BENCH: What's your authority that says the Magistrates Court is not a court?

MR MANCINI: Your Honour-no, no, no.

BENCH: That's what you're saying.

MR MANCINI: An extradition - precisely the problem. Extradition proceedings are not in the court and your Honour has been doing as a court … every single thing has been as a Magistrate, judicial officer.

BENCH: And what's your authority that says that that's not the procedure?

MR MANCINI: Well - -

BENCH: What's your authority?

MR MANCINI: I'll give it to your Honour. It's all the authorities with which Extradition Act [applications] by a Magistrate are heard and determined. It's by persona designate … in a personal capacity. Section 46B of the Extradition Act makes that plain. Your Honour hasn't even had regard to that. Your Honour hasn't even had regard to the submission I want to make about all that.

Everything your Honour has done and every other Magistrate has done leading up to today, including today, comes from a judicial officer garbed in this fashion exercising a judicial function representing to the world at large that you're a court and a judicial officer. And then

BENCH: But who am I really?

MR MANCINI: You're just Tina Previtera, Magistrate assigned by an arrangement between the Commonwealth and Queensland to process extradition proceedings. Yes. And it's how you have to conduct the proceeding. Your Honour hasn't even bothered to listen to us about that. Your Honour just goes along, processes it just like you do. Processes it just like a court. Every time we come here, your Honour, we're in a court. We're not - has your Honour ever processed, for example, a search warrant for the Commonwealth? Your Honour … does it as a persona designata, not in a court … open to the public in a hearing, garbed in the fashion that your Honour is garbed, with the coat of arms, finalised by way of court seals and registries, signatures, etcetera etcetera.

Every single one of these things in the Brisbane Magistrates Court has failed.

…

BENCH: So is your argument that there can never be extradition proceedings brought in any court?

MR MANCINI: That's right. It - - -

MR FINLAYSON: Yes.

MR MANCINI: With a Magistrate. Yes, that's right. Can't be done. Sorry, that's what your Honour is doing. That's what Mr McKechnie keeps asking you to do. Court do this, court do that. Relies upon, remand orders, etcetera etcetera. I'll take you through it, your Honour, but give me the chance and the opportunity to do so because if your Honour wants to make sure that you've got the power to do it, there will not be [indistinct] make sure you have. And we are putting this seriously to your Honour because it's a serious issue. Because if your Honour hasn't got the power, whatever your Honour ends up doing is going to be a failure. And if your Honour hasn't got the power, then stop it immediately. Every single order is not an order of your Honour. Every single order is not an order of Tina Previtera, Magistrate in Queensland. Every single order is your Honour garbed as a Magistrate judicial officer in the court, in public. Then finalised by way of a sealed document not of your Honour. Your Honour hasn't signed a single order in this case. Not one single order has been made by you. We've ended up ---

BENCH: Who's been making them?

MR MANCINI: Who's been publishing them?

BENCH: No. Who's been making them?

MR MANCINI: The Magistrates Court of Queensland. Have a look at the file, your Honour. They're there.

BENCH: And in what guise do they appear there today?

…

MR MANCINI: Yes. And your Honour, everything- everything that happens in this - in this place is as if it's a court. Everything to do with Mr Pauga is done not by your Honour in remands and so forth in bringing him here, it's done by the Magistrates Court of Queensland in Brisbane. Tipstaffs tell people not to do things because they're in the court, not to take photos. It's none of their business because it's not a court. … the only business it is is your Honour, without regard, without the coat of arms, then determining how this whole thing is going to go.

183    There were more submissions along the same lines. Then, having allowed considerable latitude, the Primary Magistrate interrupted to refer Mr Mancini to the fact that leave had been given to apply on seven days' notice in writing in the form of a written application and supporting affidavit material but no such application had been brought on behalf of Mr Pauga. It met with the following response from Mr Mancini:

So your Honour, about identified some of the matters that should be considered. Whether your Honour wants an application or not in my submission it does not matter. Your Honour has to decide these questions. We can do that, let's do it. Let's do it with a proper hearing on these issues. Because your Honour, these are threshold issues. They got to the heart of the proceedings, the heart of the process, the validity of any orders and whether any of this process to date has been valid and can continue. So your Honour, these are very important questions. These are very important questions of which there are legal issues with outlines. They are before the court. And your Honour, we have been working…in that context and there are a number of matters. And we'd like to explain all of that.

184    Much more was submitted as to the points that Mr Mancini said were points that should be determined on a preliminary basis. Counsel for Samoa referred to authority to support the approach whereby power had been entrusted to magistrates to act as persona designata and that those authorities did not say anything to the effect that the authority could not be exercised by a magistrate in robes sitting in a court room.

185    Eventually, matters returned to the position that hearing dates were to be set for 8 and 9 July 2021 and in the meantime there was liberty to apply.

186    Mr Mancini then submitted that the liberty that had been given previously could only have been exercised in respect of the orders then made. The Primary Magistrate then made clear that the liberty was a general liberty. Mr Mancini then inquired as to the forms that were to be used which appeared to be an attempt to expose his submission that the procedures of the Magistrates Court of Queensland did not apply.

187    After further exchanges directions were made in the terms that had been indicated with the clear statement that the hearing on the extradition application would take place on 8 and 9 July 2021. There was a direction that Samoa file and serve any material upon which it relies for the hearing before 4.00 pm on 10 June 2021 and a direction that Mr Pauga file and serve any material on which he relies for the hearing before 4.00 pm on 24 June 2021. Mr Pauga was remanded in custody and an order was made that he be produced from custody for the hearing on 8 July 2021.