Bennett v Government of the United Kingdom

2. The applicant is not eligible for surrender to the United Kingdom in relation to a charge of fraud concerning a car. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT 1 The present proceeding has its origin in the seeking by the United Kingdom of the extradition of Mr Paul James Bennett from Australia for two offences of fraud under Scottish law. Subsequently, a New South Wales magistrate determined at the instance of the United Kingdom that Mr Bennett was eligible for surrender to it in relation to both of those offences. The magistrate accordingly ordered under subs 19(9) of the Extradition Act 1988 (Cth) ("the Act") that Mr Bennett be committed to prison to await a decision by the Commonwealth Attorney-General either to surrender him to the United Kingdom or to release him. 2 In the present proceeding, Mr Bennett has applied to this Court under subs 21(1) of the Act, which subsection provides for a "review" of the order made by the magistrate under subs 19(9) of the Act. Mr Bennett has of course (in effect) named the United Kingdom as a respondent to the proceeding. He has also named the magistrate as a respondent to the proceeding, but, not surprisingly, she has taken no active role in it. (Indeed, it may be that she should not even have been so named: compare Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 543-44 (Gummow J).) Subsection 21(6) of the Act provides relevantly that on an application of the present type this Court "shall have regard only to the material that was before the magistrate". Subsection 21(2) of the Act provides relevantly that this Court may either confirm the magistrate's order or quash it and direct the magistrate to order Mr Bennett's release. 3 The order of which review is sought by Mr Bennett was made by the magistrate at the conclusion of proceedings which she had conducted under subs 19(1) of the Act. In Zoeller v Federal Republic of Germany (1989) 23 FCR 282, a Full Court of this Court (Lockhart, Gummow and Hill JJ), having referred to the fact that the ultimate issue to be decided by a magistrate in proceedings under subs 19(1) of the Act is whether a person in respect of whom an extradition request has been made is "eligible for surrender", then continued (at 303-04), "To determine that issue the magistrate will be required to determine the following constituent matters: