60 Where the submissions of the Minister do prevail is in respect to his submission that there has now been a judicial resolution of the question whether Mr. Brock is or is not "eligible for surrender".
61 It is, of course, the magistrate who makes the determination as to whether a person is "eligible for surrender." That is the task entrusted to the magistrate by s 19.
62 A determination that Mr. Brock is "eligible for surrender" has been made pursuant to s 19(9). That determination is an administrative determination. There has been an application to the Federal Court for review of that determination. That application came before the Federal Court and was resolved. That is a judicial determination.
63 Had there been judicial resolution of the validity of the s 16 notice prior to the resolution of the s.21 review, the invalidity of that notice would have been "fatal to the proceedings before the magistrate" : Williams v Minister for Justice and Customs [2007] FCAFC 33 at [53], 157 FCR 286. But that is not the sequence of events in the present proceedings. There have been s 21 proceedings (being the proceedings which ultimately were unsuccessful upon an application for special leave to appeal to the High Court) and no prior resolution of the s 16 notice other than the earlier dismissal by consent of proceedings.
64 It is not considered that any issue estoppel should arise out of the consent orders made in November 2005 as there was there no resolution of any "issue". Rather, an unrepresented applicant accepted an alternative forensic course explained to him by the trial judge. The learned trial judge in those proceedings helpfully provided as much assistance to Mr Brock as was then considered appropriate and stated, in part, as follows:
His Honour: … What I'm going to suggest to you is that I understand you want to challenge what's happening - that's fine, you've got the right to do it, I've got no idea whether you will be successful but that's another matter. The far more useful thing for you is to forget the challenge to the section 16 certificate, which would get you nowhere. And put in an application for review under section 19. If you do that, I suggest you do it as quickly as possible…
… I'm not going to say you should or you shouldn't, that's up to you, but if you do want to resist it I suggest you put in an application for review under section 19 of the Act and forget the section 16. It's just a distraction and a nuisance.
Clearly, His Honour would not have considered that the orders he made in that case constituted the resolution of any "issue".
65 The principles of res judicata and issue estoppel apply where earlier proceedings are in the nature of an application for judicial review, including the "review" undertaken pursuant to s 21. In Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51, Lindgren J observed:
[41] I have come to the conclusion that, sitting as I am as a single judge, I am bound to accept that res judicata and issue estoppel do apply where the earlier proceeding was in the nature of an application for judicial review of an administrative decision, and that they apply independently of any exercise of discretion. In the alternative, that is to say, if I am not so bound, I have concluded that even on the present motions for summary dismissal, there is a course of decision in the Court to the effect mentioned, which I should follow unless convinced it is clearly wrong, and I am not so convinced.
[42] In support of the applicability of res judicata and issue estoppel where the earlier proceeding was in the nature of an application for judicial review of an administrative decision, as well as of the non-discretionary nature of those doctrines, the Minister relies on the Full Court decision of this Court in Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 ('Taylor v Ansett') at 354-6 per Fisher J, 365 per Ryan J, and on the judgments of Merkel J in Somanader v Minister for Immigration & Multicultural Affairs (2000) 178 ALR 677 ('Somanader'); Sackville J in BC v Minister for Immigration & Multicultural Affairs (2001) 67 ALD 60 ('BC'); Heerey J in Re Ruddock; Ex parte LX [2003] FCA 561 ('LX'), and Merkel J in Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 ('Thayananthan').
[43] I need not discuss res judicata or issue estoppel at length. (The expression 'res judicata' is sometimes used to include issue estoppel as one form, and merger of cause of action in judgment as a different form, but, consistently with the cases to be discussed below, I will use it here to refer to the form of estoppel which arises from the establishment, or failure to establish, a cause of action, by reason of a judgment.) For res judicata to operate:
· there must have been a final judgment (albeit appealable) within its jurisdiction, by a judicial tribunal, based on the establishment or failure to establish a cause of action;
· the later proceeding must raise the same cause of action; and
· except where the prior judgment was in rem, the parties to the two proceedings must be the same: cf Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996) at 1-3; Campbell, 'Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation' (1994) 20 Mon U L Rev 21 at 21-22, and cases cited in both works.
[44] For issue estoppel to apply, an issue of fact or law which is raised for decision in the later proceeding must necessarily have been determined by reason of the final judgment in the earlier proceeding, and, again, except where the prior judgment was in rem, there must be identity of parties: Spencer Bower, Turner and Handley, chs 8, 9; Campbell at 22-23, and cases cited in both works.
[45] In Blair v Curran (1939) 62 CLR 464, Dixon J distinguished between res judicata and issue estoppel on the basis that in the case of res judicata the cause of action itself has 'passed into judgment, so that it is merged and has no longer has an independent existence', whereas, in the case of issue estoppel, 'for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order' (at 532 - the passage was adopted in Anshun by Gibbs CJ, Mason and Aickin JJ at 597).
66 It is the intervention of the review conducted pursuant to s 21 which, it is considered, has the consequence that each of the preceding stages in the extradition process has been lawfully discharged. The lawful discharge of the functions conferred by s 16 "must necessarily have been determined" in reaching the conclusion that Mr Brock was eligible for surrender.
67 It is considered unnecessary to resolve the question as to the extent of - or the nature of - the review which is permitted under s 21 as to whether the requirements of s 19(1) have been satisfied. Justice Gyles has very recently queried whether the requirements of s 19(1) could be considered in a review pursuant to s 21 and whether challenges to those requirements were to be made by way of separate proceedings based on administrative law grounds: Tervonen v Finland [2007] FCA 2067 at [4]. His Honour, however, also there referred to Knauder v Moore (2002) 127 FCR 327 and Brock v United States of America (2007) 157 FCR 121 as providing a basis for the "current practice" that some form of review was permissible.
68 For present purposes it is sufficient to note that there was no challenge in the s 21 review to whether or not there had been compliance with s 16(2)(a)(ii) and to note that there was no outstanding collateral challenge to the s 16 notice prior to the s 21 review being concluded. Whether compliance with s 16(2)(a)(ii) was a jurisdictional fact or a condition precedent to the exercise by the magistrate of his power under s 19, there was no challenge to the lawfulness of the notice.
69 The Respondent to the proceedings dismissed by Wilcox J was the Minister for Justice and Customs; the Respondents to the s 21 proceedings were the United States of America and the magistrate who conducted the s 19 hearing. For issue estoppel to operate there must be - as noted by Lindgren J - an identity of parties, except where the proceedings are in rem.
70 The s 21 proceedings do not derive "from any private arrangement but from the decision of a public authority exercising the statutory powers conferred upon it" and concern the status of the Applicant and are, accordingly proceedings in rem: P E Bakers v Yehuda (1988) 15 NSWLR 437 at 445 per Hope JA (appl'd: Wiks Peoples v State of Queensland (1994) 49 FCR 1 at 5 per Drummond J). The distinction between judgments in personam and judgments in rem, particularly in public law litigation, has been described as "unfortunate", but a judgment in rem includes a judgment "on the validity of decisions affecting a person's status under citizenship or migration legislation": Campbell, 'Relitigation in Government Cases : A Study of the Use of Estoppel Principles in Public Law Litigation'(1994) 20 Monash University Law Review 21 at 65. The s 21 decision involving the Extradition Act 1988 (Cth) is in no different position.
71 In reaching the present conclusion the terms of s 21(6)(d) have not been ignored. For the purposes of the s 21 review, the proceedings were conducted upon the basis that the requirements of s 19(1)(b) had been complied with. The determination of the s 21 proceedings conclusively resolves the entitlements of Mr Brock as well as whether he is eligible for surrender. The resolution of those proceedings has resolved whether the decision of the magistrate under s 19(9) was "erroneous in some respect". In Pasini v United Mexican States [2002] HCA 3, 209 CLR 246, Gleeson CJ, Gaudron, McHugh and Gummow JJ concluded:
[16] The function of the Federal Court under s 21 is to review an order made under sub‑ss (9) or (10) of s 19 of the Act. It is not in issue that a decision of a magistrate under s 19 of the Act is an administrative decision. When a court is required to review an administrative decision, it is required, at the very least, to determine whether or not that decision is erroneous in some respect that renders the rights or liabilities of the person to whom it relates other than as set out in that decision. In so doing, the court declares and enforces the law and, thus, exercises judicial power.
[17] In the case of review under s 21 of the Act, the Federal Court is required, if the magistrate's decision was erroneous, to determine what order should have been made by the magistrate. So much follows from ss 21(2)(b) and 21(6) of the Act. The latter sub-section relevantly requires that the Federal Court "have regard only to the material that was before the magistrate". And s 21(2)(b) empowers that Court, if it does not confirm the magistrate's order, to quash that order and direct the magistrate either to release the person or to order that he or she be committed to prison to await surrender.
[18] Although there may be little difference in practical effect, the function of the Federal Court under s 21 of the Act is different in nature from that of a magistrate under s 19 of the Act. The magistrate is required to determine administratively whether a person is eligible for surrender to an extradition country. The Federal Court is required to determine whether that decision was right or wrong and, if wrong, what decision should have been made by the magistrate, thereby determining the rights and liabilities of the parties to the review proceedings and, thus, exercising judicial power.
72 Moreover, and independently of any conclusion in respect to estoppel, it is considered that it would be an abuse of process for Mr Brock to have pursued the s 21 proceedings through to ultimate conclusion and to thereafter now be permitted to commence separate proceedings seeking to put in issue a requirement which was an essential part of the extradition process. He had previously abandoned the proceedings in respect to s 16 at an earlier time - for whatever reason does not matter. To now permit Mr Brock to again commence separate proceedings in respect to the validity of the s 16 notice would certainly not promote finality in litigation and would only encourage a fragmentation of the avenues by which litigants can seek review of each of the four stages of extradition.
73 The power of this Court, and other superior courts, to stay proceedings in such circumstances is well recognised: Walton v Gardiner (1993) 177 CLR 378. Mason CJ, Deane and Dawson JJ there summarised the position as follows at 392-3 (citations omitted):
The inherent jurisdiction of a superior Court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a Court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that Court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings 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 oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings….
The concluding words of their Honours are apposite to the present Motion. Consenting to the dismissal of the first s 16 proceedings in 2005 may well have been understandable. But that which should not now be permitted is to allow the Applicant to conduct s 21 proceedings through to ultimate conclusion and, upon being met with failure, to thereafter fragment the extradition process by going back to the position he first sought to litigate in September 2005. He should not be permitted to "litigate anew" the manner in which the extradition process has been undertaken.
74 It is thus considered that to now permit Mr Brock to continue the prosecution of the present proceedings would be, to use the words of Mason CJ in Rogers v The Queen (1994) 181 CLR 251 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…. :