Brock v Minister for Home Affairs [2008] FCAFC 165 | Case summary

Federal Court of Australia (Full Court)|2008-09-17|Before: Tracey JJ, Gray J

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.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Introduction 11 On 24 December 2007, a judge of this Court dismissed a proceeding (the Primary Proceeding) brought by the applicant (Mr Brock) under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the respondent (Minister) made on 12 May 2005 to give a notice under s 16(1) of the Extradition Act 1998 (Cth) (the Act) in relation to Mr Brock (Notice of Receipt of Extradition Request). The Primary Proceeding was Brock v Minister for Justice and Customs (2007) 243 ALR 315. Subsection 16(1) provides: 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, state that the request has been received. The Attorney-General and the Minister share responsibilities in the Attorney-General's portfolio, including in relation to extradition. Although the Act refers to the Attorney-General, the Minister is also able to exercise the Attorney-General's power under the Act: see s 19A of the Acts Interpretation Act 1988 (Cth); and generally, Mokbel v Attorney-General (Cth) (2007) 162 FCR 278 at [22] - [29]. We note that the respondent was previously named in the title Minister for Justice and Customs, but pursuant to order 1 of the orders made by the primary judge in the Primary Proceeding, the name of the respondent in the title was changed to Minister for Home Affairs. 12 The relevant extradition request was received from an "extradition country", namely, the United States of America (USA), on 9 May 2005. The then Minister for Justice and Customs issued the Notice of Receipt of Extradition Request on 12 May 2008. 13 Mr Brock accepts that on its face the Notice of Receipt of Extradition Request conformed to the Act. He contends, however, that s 16(2) of the Act prohibited the Minister from giving the notice (we discuss s 16(2) below). 14 The primary judge dismissed the proceeding on the Minister's motion on the ground that it was an abuse of process, a ground provided for in O 20 r 5 of the Federal Court Rules (Cth) (Rules). 15 On 31 January 2008 Mr Brock filed a notice of appeal. On 14 February 2008 the Minister filed a notice of objection to competency on the ground that the primary judgment was interlocutory and leave to appeal was required: see Federal Court of Australia Act 1976 (Cth) s 24(1A). Mr Brock then, on 20 February 2008, filed a notice of motion seeking an extension of time in which to apply for leave to appeal and, if the extension was granted, leave to appeal. Accordingly, Mr Brock's designation in the title has been altered from "appellant" (as Mr Brock had called himself in his notice of appeal) to "applicant".

Facts 16 The following account of the facts is based on the reasons of the primary judge. 17 Mr Brock is a citizen of the USA. He was extradited from the Netherlands to Australia to face prosecution for an offence relating to conspiracy to import cannabis into Australia. On that charge he was found guilty and sentenced to 12 years' imprisonment. 18 Mr Brock was released on parole on 17 March 2005, but on that day he was arrested by the Australian Federal Police pursuant to a provisional arrest warrant issued under s 12 of the Act. He has been in custody since that time. 19 As noted earlier, on 9 May 2005 the USA presented a formal request to Australia for the extradition of Mr Brock, and on 12 May 2005, the then Minister for Justice and Customs issued the Notice of Receipt of Extradition Request. It was addressed to "a magistrate before whom [Mr Brock] is brought". 20 On 24 November 2005, pursuant to s 19 of the Act, Magistrate Huber, a magistrate of the New South Wales Central Local Court, determined that Mr Brock was eligible for surrender to the USA, and pursuant to s 19(9) by warrant ordered that he be committed to prison to await that surrender.

Previous proceedings instituted by Mr Brock 21 On 7 September 2005, Mr Brock launched a proceeding in this Court, NSD 1612 of 2005 (the earlier s 16 proceeding), seeking judicial review of the Minister's decision to issue the Notice of Receipt of Extradition Request. While that proceeding was pending, Magistrate Huber conducted the hearing on 24 November 2005 referred to above. 22 The following day, 25 November 2005, by consent Wilcox J in this Court dismissed the earlier s 16 proceeding and noted the possibility that Mr Brock would seek review under s 21 of the Act of the Magistrate's order for the issue of the warrant of committal of 24 November 2005. 23 As foreshadowed by Wilcox J, on 8 December 2005 Mr Brock launched a proceeding in this Court, NSD 2442 of 2005, under s 21 of the Act (the earlier s 21 proceeding) for review of the order of Magistrate Huber made on 24 November 2005 that Mr Brock be committed to prison to await surrender. Mr Brock sought, inter alia, orders that the warrant issued under s 19(9) of the Act be quashed and that he be released from custody forthwith. 24 On 9 May 2006, Moore J of this Court dismissed that proceeding: see Brock v United States of America [2006] FCA 496. At that hearing, Mr Brock was represented by counsel who appeared pro bono. 25 Mr Brock's appeal from that order was dismissed: Brock v United States of America (2007) 157 FCR 121. Mr Brock was again represented by counsel on the hearing of the appeal. 26 An application by Mr Brock for special leave to appeal to the High Court was dismissed on 31 August 2007: Brock v United States of America [2007] HCA Trans 487. 27 Mr Brock then commenced two proceedings against the Minister in this Court: NSD 2003 of 2007 and NSD 2004 of 2007, the latter being the Primary Proceeding. We will discuss the Primary Proceeding in some detail below. 28 By proceeding NSD 2003 of 2007, Mr Brock attacked a determination the Minister had made on 25 September 2007 under s 22 of the Act that Mr Brock was to be surrendered to the USA, and the consequential issue of a warrant under s 23 for his surrender. 29 On the date on which the Primary Proceeding was heard (19 December 2007), proceeding NSD 2003 of 2007 was also before the primary judge. His Honour was informed that the Minister conceded that Mr Brock had been denied procedural fairness in connection with the making of the Minister's determination under s 22 that Mr Brock was to be surrendered and with the issue of the warrant for his surrender under s 23. By consent his Honour made orders in the nature of certiorari quashing both the determination and the warrant. The Court noted that the Minister conceded that Mr Brock had been denied procedural fairness in the making of the determination.

The Scheme of the Act 30 The extradition process involves four steps: 1. Commencement (by the issue of a warrant for arrest under s 12 or the issue of a notice under s 16); 2. Remand by a magistrate under s 15; 3. Conduct of proceeding under s 19 before a magistrate for determination of eligibility for surrender and, where appropriate, for the issue of a warrant of committal to prison to await surrender or release; and 4. Determination by the Minister as to whether the person is to be surrendered under s 22, and, if so, the consequential issue of a warrant for surrender of the person to the extradition country under s 23. (See Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389; Vasiljkovic v Commonwealth (2006) 227 CLR 614 at [29], [55], [144], [222].) 31 We referred earlier to s 16(2). That provision contains prohibitions against the Minister's issuing a Notice of Receipt of Extradition Request and is as follows: (2) The Attorney-General shall not give the notice: (a) unless the Attorney-General is of the opinion: (i) that the person is an extraditable person in relation to the extradition country; and (ii) 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; or (b) if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought. The expression "conduct of the person constituting an offence" in s 16(2)(a)(ii) refers to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed: see s 10(2) of the Act. 32 Subsections 19(1) and (2) of the Act provide: (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 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 considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings; the magistrate 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. (2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if: (a) the supporting documents in relation to the offence have been produced to the magistrate; (b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents have been produced to the magistrate; (c) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and (d) the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence. 33 Section 21 provides, relevantly, that where a Magistrate makes an order under s 19(9) in relation to a person whose surrender is sought by an extradition country, the person may apply to this Court for judicial review of the order. 34 As the primary judge observed (at [41]), s 16(2)(a)(ii) and s 19(2)(c) are in substance identical, but for the fact that the former provision refers to the opinion of the Attorney-General while the latter refers to the Magistrate's being satisfied that the conduct of the person satisfies the description. The requirement expressed in those provisions is commonly referred to as the "dual criminality" requirement. 35 Mr Brock contended before the primary judge, and has again contended before the Full Court, that the Minister was not, for reasons discussed below, entitled to be of the opinion referred to in s 16(2)(a)(ii) of the Act, with the result that the Minister was prohibited from issuing the Notice of Receipt of Extradition Request. It follows, according to Mr Brock's argument, that although the notice issued under s 16(1) which was ex facie valid, one of the conditions referred to in s 19(1), namely, the condition referred to in para (b) of that subsection, had not been satisfied and Magistrate Huber had therefore not been entitled to conduct the proceeding to determine whether Mr Brock was eligible for surrender. It did not matter, according to Mr Brock's submission, that the Magistrate had independently satisfied herself, as required by s 19(2)(c), that the dual criminality requirement was satisfied: the condition precedent laid down in s 19(1)(b) had not been satisfied because the purported "notice under subsection 16(1) in relation to [Mr Brock]" was in law no such notice.

The earlier s 21 proceeding 36 In the earlier s 21 proceeding, Mr Brock's amended application stated three grounds, the third of which was: The Magistrate erred in applying s 19(2)(c) of the Act by failing to consider whether exposure to being convicted of two offences in the United States of America, arising from the same conduct, would be possible in Australia and, if not, whether this offended the principle of dual criminality. Moore J simply noted that this ground was not pursued in written submissions nor at the hearing before him. It will be recalled that Mr Brock had legal representation before his Honour. 37 On the appeal against Moore J's dismissal of his application, Mr Brock again included this ground in his grounds of appeal. Despite the initial objection of counsel for the USA, the Court heard short submissions in relation to the ground. The argument presented for Mr Brock was that the requirement of dual criminality could not be satisfied because he had been charged with two offences in the USA, one of which was a "lesser included offence" in that country, and could be convicted of both offences (although sentenced for only one), whereas in Australia he could be convicted of only one. 38 Black CJ said (at [37]) that what mattered was that Mr Brock's conduct would have been, at all relevant times, an offence against the law in force in New South Wales with a maximum penalty exceeding 12 months' imprisonment: see the definition of "extradition offence" in s 5 of the Act. It followed, according to the Chief Justice, that the requirements of s 19(2)(c) were met. 39 Jacobson J agreed (at [44]) with the Chief Justice and with the third member of the Court, Rares J, that there was no error in the Magistrate's conclusion that s 19(2)(c) was satisfied. 40 Rares J concluded that it was no objection to s 19(2)(c) being met that in the USA Mr Brock could be convicted of two offences in circumstances in which he could be sentenced for only one of them (see [116] ff). 41 In sum, the Court rejected Mr Brock's argument that the Magistrate had not been entitled to be satisfied that the dual criminality requirement stipulated by s 19(2)(c) was met.

The Primary Proceeding 42 His Honour the primary judge began by reviewing the concepts of estoppel and abuse of process (at [34] to [36]). 43 His Honour noted (at [37]) that Mr Brock wished to challenge the Minister's giving of the Notice of Receipt of Extradition Request on a ground of challenge recognised for the first time in Williams v Minister for Justice and Customs (Cth) (2007) 157 FCR 286. In Williams, a Full Court of this Court held that the view previously expressed by Cooper J in Foster v Attorney-General (Cth) (1997) 97 A Crim R 560, that it was sufficient for the purposes of s 16(2)(a)(ii) that the Minister be informed of the foreign charges against the person, was incorrect, and that the Minister must be informed of the alleged conduct. In his proposed ground of challenge, Mr Brock would argue that particulars of his own conduct had not been before the Minister when the Minister issued the Notice of Receipt of Extradition Request, and that the Minister could therefore not form the opinion that the dual criminality requirement, as stipulated by s 16(2)(a)(ii), was met. It will be recalled that this was not the ground on which Mr Brock had contended in the earlier s 21 proceeding that Magistrate Huber had not been entitled to be satisfied that the dual criminality requirement specified in s 19(2)(c) was met. 44 His Honour noted (at [42]) that the Minister relied on the determination by the Full Court in the earlier s 21 proceeding that the requirements of s 19(2)(c) had been met. He also noted (at [43]) the statement by the Full Court in Williams at [45] that there is no basis for distinguishing the construction of s 16(2)(a)(ii) from s 19(2)(c). 45 The primary judge considered that Mr Brock was not defeated by the doctrine of issue estoppel. He said (at [56]): "Compliance with s 19(2)(c) has been resolved; compliance with s 16(2)(a)(ii) has not been resolved." 46 Nor, according to his Honour (at [57]), was Mr Brock defeated by "Anshun estoppel" (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598, 602). In this regard, the primary judge observed (at [59]) that although Mr Brock had not raised his present argument in the earlier s 16 proceeding, at that time the Full Court's decision in Williams had not been given and Mr Brock did not become aware of that decision until August 2007. For this reason and others, his Honour concluded that it was not unreasonable for Mr Brock not to have raised the present point in the earlier s 16 proceeding. 47 Nor did his Honour think that the commencement and dismissal by consent of the earlier s 16 proceeding precluded Mr Brock from challenging the Minister's decision to issue the Notice of Receipt of Extradition Request (at [64]). 48 The Minister does not, by notice of contention, seek to argue that his Honour erred in any of the three respects just mentioned. 49 The primary judge thought, however, that the intervention of the earlier s 21 proceeding, and, in particular, the determination in that proceeding that Mr Brock was eligible for surrender, judicially considered and affirmed, was fatal to Mr Brock's application in the Primary Proceeding for review of the Minister's decision to give the Notice of Receipt of Extradition Request. His Honour thought that the intervention of the review under s 21 had the consequence that each of the preceding stages in the extradition process had been lawfully discharged (at [66]). He considered that the lawful discharge of the functions conferred by s 16 must necessarily have been determined when the conclusion was reached in the earlier s 21 proceeding that Mr Brock was eligible for surrender (also at [66]). 50 The primary judge noted (at [68]) that there was no challenge in the earlier s 21 proceeding as to whether there had been compliance with s 16(2)(a)(ii), and that there had been no outstanding collateral challenge to the Notice of Receipt of Extradition Request prior to the earlier s 21 proceeding being concluded. His Honour also said (at [71]) that the earlier s 21 proceeding had been conducted upon the basis that the requirements of s 19(1)(b) had been satisfied, that is to say, that the Minister had given a (valid) Notice of Receipt of Extradition Request under s 16(1) in relation to Mr Brock. 51 The primary judge considered (at [71]) that the resolution of the earlier s 21 proceeding had resolved the question whether the Magistrate's decision under s 19(9) was "erroneous in some respect". His Honour referred to Pasini v United Mexican States (2002) 209 CLR 246 at [16]-[18]. 52 Finally, his Honour said (at [72]) that, independently of any conclusion in respect to estoppel, it would be an abuse of process for Mr Brock, having pursued the earlier s 21 proceeding through to ultimate conclusion, subsequently to commence a separate proceeding seeking to put in issue a requirement that was an essential part of the extradition process. His Honour referred (at [73]) to Walton v Gardiner (1993) 177 CLR 378 at 392-393 and Rogers v The Queen (1994) 181 CLR 251 at 256-257.

Extension of time and leave to appeal 53 The judgment of the primary judge was interlocutory: see Re Luck (2003) 203 ALR 1 at [9]. 54 Order 52 r 10(2A)(b) of the Rules had the effect that Mr Brock's notice of motion seeking leave to appeal was required to be filed within seven days after the date on which the Primary Proceeding was dismissed as an abuse of process on 24 December 2007. Mr Brock filed the notice of appeal on 31 January 2008; the Minister filed the notice of objection to competency on 14 February 2008; and Mr Brock filed the notice of motion seeking leave to appeal on 20 February 2008. Order 3 r 2(4A) of the Rules requires that in the calculating the seven day period, the period from 24 December 2007 to 14 January 2008 be excluded. Therefore Mr Brock had until 21 January 2008 in which to file his notice of motion seeking leave to appeal. 55 In order to obtain the extension of time and leave to appeal, Mr Brock must: (a) satisfactorily explain his failure to apply for leave to appeal in time; (b) show that the decision at first instance is attended by sufficient doubt to warrant its being considered at appellate level; and (c) show that substantial injustice would result if, supposing the decision to be wrong, leave to appeal were refused. (See Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400; Visy Industries Holdings Pty Ltd v Australian Competition & Consumer Commission (2007) 161 FCR 122 at [1], [39]). 56 In relation to (a) above, Mr Brock has satisfactorily explained his failure to apply for leave to appeal by 21 January 2008. There is evidence that he was advised that he had 21 days, excluding the period 24 December 2007 to 14 January 2008, in which to do so. That period of 21 days expired on 4 February 2008. Once he appreciated that he had only seven days excluding the period mentioned in which to seek leave to appeal, he acted as expeditiously as his circumstances of imprisonment permitted, by filing a notice of motion seeking an extension of time and leave to appeal on 20 February 2007. He is an unrepresented litigant. 57 We turn now to (b) above. It will be recalled that the Primary Proceeding was summarily dismissed as an abuse of process on the Minister's motion. It is usually said, by whatever linguistic formula, that a proceeding should be dismissed summarily only if the case for dismissal is very clear or very plain: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; Webster v Lampard (1993) 177 CLR 598 at 602-603. However, even lengthy argument may be necessary to show that the case is very clear to justify the summary intervention of the court. As Barwick CJ stated in General Steel Industries at 130: … I do not think that the exercise of the jurisdiction [in relation to summary dismissal for abuse of process] should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. 58 In the circumstances of the present case, where summary dismissal was sought on the ground of abuse of process on undisputed facts, the difference between dismissal for abuse of process summarily and as on a final hearing is, at least as a practical matter, illusory. The Court was required, and would have been required on a final hearing, to be satisfied that it was an abuse of process for the Primary Proceeding to be brought having regard to the undisputed nature and fate of the earlier s 21 proceeding. This required the application of principles governing abuse of process to uncontroversial facts. 59 The particular species of abuse of process of concern in the present case was that the bringing of the Primary Proceeding would be inconsistent with the result of the adjudication, adverse to Mr Brock, in the earlier s 21 proceeding: see Walton v Gardiner at 393. In our view, it clearly was, and there is not sufficient doubt, touching the primary judge's conclusion to that effect, to warrant its being considered at appellate level. Our reasons appear below. 60 We turn now to (c) above. The decision in question was the summary dismissal of the Primary Proceeding as an abuse of process. If that summary dismissal were reversed on appeal, the Primary Proceeding would go to a final hearing. Would substantial injustice result from Mr Brock's having been denied that final hearing? The answer depends on what the result of the final hearing would have been. The final hearing, like the motion for summary dismissal itself, would have turned on a question of law, there being no controversy as to the facts. As noted above, in these circumstances there is no practical difference between the way in which the test for abuse of process would have been applicable on a final hearing and the way in which it was to be applied on the motion for summary dismissal. 61 For the reasons given below, we are of the view that on a final hearing the Primary Proceeding would have been dismissed as an abuse of process. Therefore, there would be no substantial injustice if leave to appeal is refused. 62 The extension of time and leave to appeal sought by Mr Brock should be refused.

CONSIDERATION 63 Mr Brock wishes to challenge the issue of the Notice of Receipt of Extradition Request under s 16 on a different basis from that on which he relied in relation to s 19(2)(c) in the earlier s 21 proceeding. While the ground is again a failure to satisfy the dual criminality requirement, the argument is no longer that in the USA he would be subject to two convictions, while in Australia only one. Rather, it is that there were not before the Minister the materials identifying Mr Brock's acts and omissions (conduct) as alleged by the USA, required for the Minister to make a decision to issue the Notice of Receipt of Extradition Request. Mr Brock relied on Williams at [50]. We have previously discussed Williams at [43] above. 64 It should be assumed in favour of Mr Brock that he would be able to establish that the required materials were not before the Minister; that the Minister was therefore not entitled to be satisfied that the dual criminality requirement expressed in s 16(2)(a)(ii) was met; and that at least if he had challenged the Minister's decision under s 16 without the intervention of the earlier s 21 proceeding, he would have succeeded in having that decision and the Notice of Receipt of Extradition Request set aside. (The Minister does not dispute that the Court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to grant such relief.) 65 The result would be that Mr Brock was not eligible for surrender and that the warrant of committal of 24 November 2005 was invalidly issued by Magistrate Huber because the Minister had not given a notice under s 16(1) in relation to Mr Brock as required by s 19(1)(b) of the Act. Yet the question of the validity of the Magistrate's determination that Mr Brock was eligible for surrender and the consequential issue of the warrant of committal to prison was the very matter decided adversely to Mr Brock in the earlier s 21 proceeding. 66 There can be only one object of Mr Brock's challenge to the Minister's decision under s 16 as Mr Brock acknowledged on the hearing of his present application: to establish that the ex facie regular Notice of Receipt of Extradition Request was not valid, that the condition precedent to the Magistrate's authority to conduct a proceeding to determine eligibility for surrender was not satisfied, and therefore that the Magistrate's determination of eligibility for surrender and the issue of the warrant of committal to prison were invalid. 67 Indeed, it is to the point to note that in the Primary Proceeding Mr Brock sought, not only a declaration that the s 16 notice was invalid and should be set aside, but also declarations that the warrant of committal issued by the Magistrate under s 19(9) of the Act was invalid and should be set aside, and that his detention since 12 May 2005 pursuant to that warrant was unlawful. It will be recalled that similarly, in the earlier s 21 proceeding Mr Brock had sought orders that the warrant issued under s 19(9) of the Act be quashed, and that he be released from custody forthwith (see [23] above). 68 The abuse of process that the Primary Proceeding constituted can also be described in terms of futility. A bare declaration that the issue of the Notice of Receipt of Extradition Request was invalid and setting aside of that notice would be futile. In the absence in addition of a challenge to the dismissal of the earlier s 21 proceeding, the declaration and setting aside would not be productive of a remedy of any benefit to Mr Brock. The bringing of the Primary Proceeding was therefore an abuse of process. 69 The present case has some similarity to Reichel v Magrath (1889) 14 App Cas 665. A vicar (Reichel) resigned his benefice and subsequently purported to revoke the resignation. He sued the Bishop and the patrons of the benefice claiming a declaration that he was vicar of the benefice and that the resignation was void, and an injunction restraining the defendants from treating the benefice as vacant. North J in the Chancery Division dismissed the action: Reichel v Bishop of Oxford (1887) 35 Ch D 48. The Court of Appeal dismissed Reichel's appeal and declared that the benefice had become vacant on 1 October 1886 by reason of the resignation: Reichel v Bishop of Oxford (1887) 35 Ch D 48 at 71. The House of Lords dismissed Reichel's appeal and affirmed the order of the Court of Appeal: Reichel v Bishop of Oxford (1889) 14 App Cas 259. 70 Subsequently, on 3 February 1887, Magrath was appointed by the patrons to succeed Reichel, and, having been duly instituted, was inducted into possession. However, Reichel refused to give up possession of the parsonage-house and glebe lands. Magrath sued him for possession. Reichel filed a defence setting out the same case as had been defeated in the earlier proceedings against the Bishop and the patrons. 71 The Queen's Bench Division summarily ordered that Reichel's defence be struck out on the ground of res judicata, and that judgment be entered for Magrath with consequential relief. The orders were affirmed by the Court of Appeal, not on the ground of res judicata (it will be noted that the parties were not identical as between the two proceedings), but on the ground of abuse of process. The House of Lords dismissed Reichel's appeal and affirmed the orders of the Court of Appeal: Reichel v Magrath (1889) 14 App Cas 665. Lord Halsbury LC said (at 668): My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. 72 It may be suggested that Reichel v Magrath is distinguishable. First, in Reichel's earlier proceeding the Court of Appeal, at the suggestion of Lindley LJ (at 91), positively declared that the benefice had become vacant upon the Bishop's acceptance of Reichel's resignation, whereas in the present case neither Moore J nor the Full Court in the earlier s 21 proceeding positively declared that Magistrate Huber's warrant for the committal of Mr Brock to prison was valid. However, in our view, this does not matter for the purposes of the question of abuse of process. The validity of the Magistrate's decision that Mr Brock was eligible for surrender and of the warrant was squarely in issue in the earlier s 21 proceeding and was adjudicated upon. 73 Second, it may be said that Reichel's defence raised precisely the same case, the ineffectiveness of his resignation, as had been raised in the earlier proceeding against the Bishop and the patrons, whereas Mr Brock now wishes to argue a different case from that which he advanced in the earlier s 21 proceeding. However, the distinction is not a valid one. Mr Brock wishes again to contend that the Magistrate's decision that he was eligible for surrender and issue of the warrant of imprisonment were both invalid because the dual criminality requirement was not met, albeit he now wishes to support that case by way of ss 16(2)(a)(ii) and 19(1)(b), rather than by way of s 19(2)(c) as he did in the earlier s 21 proceeding. 74 Cases such as Reichel v Magrath and Walton v Gardiner (at 393) emphasise that the concept of abuse of process is not limited by reference to the doctrines of res judicata, issue estoppel and Anshun estoppel; and see Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58]-[70], and cases there cited by French J. 75 In our view, the present case is a clear case of abuse of process and the primary judge was entitled to dismiss the Primary Proceeding summarily on that ground. 76 We respectfully agree with the primary judge that to permit Mr Brock to prosecute the Primary Proceeding would have been, to use the words of Mason CJ in Rogers v The Queen at 256-257: ... not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but ... also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue ... : 77 We would also uphold the second ground advanced by Ms Gleeson of counsel for the Minister, for resisting the granting of leave to appeal. This is that according to the scheme of the provisions to which we have referred, the work to be done by the issue of a Notice of Receipt of Extradition Request under s 16 is spent once the s 19 stage in the process is reached. The presence of para (c) in s 19(2) demonstrates an intention that any challenge to the satisfaction of the dual criminality provision is to take place within the framework of an application under s 21 for review of the Magistrate's order. The Magistrate was required to satisfy herself independently that the dual criminality requirement was met, and was not required to review the Minister's having been previously satisfied that it was met for s 16 purposes: see Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 538-539. 78 In his written submissions, Mr Brock asserted two further grounds of attack on the reasons of the primary judge. The first is that his Honour misconstrued s 21 of the Act. However, that ground as formulated by Mr Brock involved a misreading of para [48] of his Honour's reasons. Contrary to para 4 of Mr Brock's submissions, the "final hearing" to which his Honour was referring in the first sentence of [48] was a reference to a final hearing in the very proceeding before him. This is made clear from the following sentence in [48]. 79 A further matter raised by Mr Brock in his submissions was a complaint that his Honour failed to make findings of fact. It was not, however, necessary for his Honour to make findings of fact as Mr Brock has suggested at paras 25 to 28 of Mr Brock's submissions. The nature of the abuse of process case put by the Minister did not require his Honour to do so. It could be assumed, as we have assumed, in favour of Mr Brock, that the facts were found in his favour.

CONCLUSION 80 For the above reasons the extension of time and leave to appeal sought by Mr Brock should be refused with costs. 81 Since the foregoing 70 paragraphs were written, two things have happened. First, we have had the benefit of reading the reasons of Gray J. Although we differ from his Honour as to the result, we agree that in many cases litigants are well advised not to seek summary judgment or dismissal but to seek an early final hearing. In relation to this particular case, however, we refer to what we have said at [57] to [60] above. 82 Second, Mr Brock has forwarded to the Registry a notice of motion seeking leave to make written supplementary submissions in the form attached to the notice of motion. 83 We have, necessarily, studied Mr Brock's proposed submissions. They advance further arguments attacking the decision to issue the Notice of Receipt of Extradition Request under s 16 of the Act in order to show that the decision should be reviewed. They also argue that the warrant of committal was not attacked in the Primary Proceeding. This last point was said to be relevant to a suggestion made by a member of the Court on the hearing to the effect that in order to have utility, the Primary Proceeding would have to lay the ground for, and lead to, a challenge to the dismissal of the earlier s 21 proceeding (see [68] above). 84 Mr Brock's proposed submissions do not come to grips with our course of reasoning (see in particular [64] above). However, since we have, necessarily, taken them into account and Mr Brock is not legally represented and is in prison, we think it appropriate to allow the notice of motion to be filed and to order that Mr Brock have leave to make, and be taken to have made, supplementary submissions in accordance with the supplementary submissions annexed to the notice of motion.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lindgren and Tracey.

Associate: Dated: 17 September 2008 The applicant appeared in person.

Extradition Act 1998(Cth)

Acts Interpretation Act 1988(Cth)

Extradition Act 1988(Cth)ss 16(2).

Brock v Minister for Home Affairs

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