Brock v Minister for Home Affairs

REASONS FOR JUDGMENT GRAY J: 1 There are cases in which an application to strike out a proceeding is unnecessary and inappropriate. This case at first instance was one such case. A final hearing of the proceeding instituted by the appellant would have been unlikely to occupy more than one day of a judge's hearing time. If the strike-out application had been unsuccessful, the case would have occupied a judge on two separate days, one for the hearing of the strike-out application and the other for a final hearing. As the appellant was then unsuccessful, this Court is now considering an application to extend the time for applying for leave to appeal from the interlocutory judgment at first instance, an application for leave to appeal, and, if necessary, an appeal on the strike-out application. If the appellant is to succeed, the result will be that he returns to a final hearing at first instance, with the prospect of another appeal to this Court if he should be unsuccessful. The respondent should not have made an application to strike-out the proceeding at first instance. If a strike-out application were to be made, the learned primary judge should have adjourned it to the same time as the final hearing of the proceeding and decided the matter on a final basis. 2 I have read in draft form the reasons for judgment of Lindgren and Tracey JJ. The facts and circumstances of the case are set out in some detail in those reasons for judgment and it is unnecessary for me to set them out again. Unlike their Honours, I have reached the conclusion that the time for applying for leave to appeal should be extended, leave to appeal should be granted and the appeal should be allowed. The orders of the primary judge dismissing the appellant's application with costs should be set aside. The matter should be remitted to the primary judge, so that the appellant can have his case heard and determined on a final basis. 3 The strike-out application at first instance was brought on two bases. The first was that the proceeding was barred by reason of issue estoppel or Anshun estoppel. The second relied on O 20 r 5 of the Federal Court Rules, and could only succeed if the proceeding was frivolous or vexatious, or an abuse of process. 4 The appellant was seeking to challenge the validity of the respondent's decision under s 16 of the Extradition Act 1988 (Cth) ("the Extradition Act"). This was a decision to give a notice, directed to a magistrate, notifying the magistrate that a request had been received from the United States of America for the extradition of the appellant. The ground on which the challenge was based only became available to the appellant after the judgment of the Full Court in Williams v Minister for Justice and Customs [2007] FCAFC 33 (2007) 157 FCR 286, which overruled Foster v Attorney-General (Cth) (1997) 97 A Crim R 560. The ground is that the respondent could not form the opinion required by s 16(2)(a)(ii) of the Extradition Act without having before him a statement of the conduct of the appellant on which the United States of America relied. That opinion is that: if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia The Full Court in Williams held that it was insufficient for the decision-maker simply to have a statement of the extradition offence alleged. 5 The appellant had not previously challenged the validity of the respondent's decision to give the notice on this ground. His only earlier challenge to that decision was on a different ground and was dismissed by consent, without any determination of its merits, after a judge of this Court encouraged the appellant to believe that it would be far more useful for him to forget the challenge to the s 16 notice and apply for review of the decision under s 19 of the Extradition Act instead. 6 The primary judge was correct to hold that the appellant was not barred by issue estoppel from challenging the respondent's decision on this ground. Such a challenge had never been determined. Further, his Honour was correct to hold that the appellant was not barred by Anshun estoppel. At the time of his earlier challenge to the s 16 decision, the ground on which he now seeks to rely was not available to him. Nor was it open to him, in any of the proceedings he took to challenge the subsequent decisions under s 19 and s 21 of the Extradition Act, to raise the question of the validity of the respondent's decision under s 16. The validity of the s 16 decision was not in issue in relation to either of the s 19 or s 21 decisions, and could not have been. 7 How, then, could the appellant's proceeding at first instance constitute an abuse of process? Dismissal of a proceeding as an abuse of process requires that there be no arguable basis on which the proceeding could be maintained. It is enough to cite General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 per Barwick CJ: It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action…is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". 8 The primary judge took the view that, because the appellant had failed to review successfully the subsequent decision made under s 21 of the Extradition Act, it must follow that each of the preceding stages in the extradition process had been discharged lawfully, including the function exercised by the respondent pursuant to s 16. It is difficult to see how this could be so. If it was never open to the appellant to challenge the validity of the s 16 decision in the proceedings in which he sought to challenge the validity of the s 21 decision, it is at least arguable that that opportunity remained open to him despite the s 21 proceeding. It is at least arguable that, if the s 16 decision were now overturned, the subsequent decisions under s 19 and 21 would be of no effect. The magistrate could not have embarked on the process of making a decision under s 19 without a valid decision under s 16. In turn, the s 21 decision could not have occurred without a valid decision under s 19. The appellant had never had an opportunity to raise the question of the validity of the s 16 decision in any of his proceedings challenging the validity of the s 19 and s 21 decisions. The argument that he is now entitled to do so and that, if he succeeds, the process of his extradition must start again, has sufficient substance not to be dismissed summarily. 9 It may be that, if the appellant's application had been heard to finality, he would have been denied relief in the exercise of the Court's discretion. This would be on the basis that the process had gone too far for him now to be granted relief that would have the effect of nullifying the subsequent steps in the process. The possible exercise of a judicial discretion adversely to an applicant cannot convert an otherwise arguable application into an abuse of process. By its very nature, a discretion may be exercised either for or against an applicant. It can only be exercised when all of the circumstances of the case are taken into account. The appellant's case was highly unusual, because he had been persuaded to give up his earlier challenge to the s 16 decision, and the ground on which he became entitled to challenge it only became known after other events in the chain of decisions leading to his extradition had occurred. It may be that the circumstances would be such that the appellant could have persuaded the Court not to exercise its discretion against him, and to grant him relief. The case is, after all, one concerning liberty. 10 For these reasons, which I have expressed briefly, I differ from my learned colleagues on this Court. In my view, the orders to which I have referred in [2] should be made. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.