Dutton v Republic of South Africa

THE COURT: 1 At the conclusion of the hearing, on 22 June 1999, we dismissed with costs this appeal from the judgment of Branson J in Dutton v Republic of South Africa (1999) 162 ALR 625. We indicated we would give reasons in due course. 2 In the Court below the appellant invoked s 39B of the Judiciary Act 1903 in order to challenge the validity and effectiveness of a notice dated 21 January 1998 issued by the Minister for Justice and Customs, the third respondent ("the Minister"), on behalf of the Attorney-General under s 16(1) of the Extradition Act 1988 ("the Act"). The notice related to an extradition request from the Republic of South Africa, the first respondent ("the Republic"), for the surrender of the appellant. The Republic had made application to a magistrate for proceedings to be conducted under s 19 of the Act to determine whether the appellant was eligible for surrender. The relief sought by the appellant also included a stay of those proceedings until his costs incurred in earlier proceedings before another magistrate were paid by the Republic. 3 Those earlier proceedings related to a notice dated 18 December 1995 issued by the Attorney-General under s 16(1) of the Act in respect of the same extradition offences as those stated in the notice dated 21 January 1998. Because of a perceived insufficiency in the material before her, the first magistrate determined that the appellant was not eligible for surrender in relation to those offences. On the basis of that determination and notwithstanding the subsequent receipt of the extradition request that was the subject of the notice dated 21 January 1998, the appellant applied to the Court for a permanent stay of the proceedings before the second magistrate pursuant to that later notice. That application was dismissed by Burchett J: Dutton v Republic of South Africa (1999) 84 FCR 291. 4 The s 19 proceedings before the second magistrate were adjourned pending the determination of the application by Burchett J. In the meantime, and after his Honour reserved his decision, the first magistrate refused to order the Republic to pay the appellant's costs of the earlier s 19 proceedings determined by her, on the basis she had no such power, and the appellant had representations made by his local member of parliament to the Minister about the continuation of the pending s 19 proceedings. On 6 January 1999 the Minister replied to the local MP indicating it was not her function to interfere with s 19 proceedings and it would be inappropriate for her to do so. The next day Burchett J delivered his judgment. The local MP (who had, by this time, himself become a Minister of State) persisted, however, with fruitless representations to the Minister's staff. 5 That was the background to the application, filed on 9 March 1999, that came before Branson J. The respondents sought to have the appellant's claims for relief in the new application stayed or dismissed by reason of the disposition of his earlier application by Burchett J. They relied on the doctrine of res judicata and on the species of estoppel applied in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. Branson J held that there was no res judicata against the appellant and he was not seeking to litigate a "cause of action" which had merged in the earlier judgment of Burchett J. However, her Honour held that Anshun estoppel applied so as to preclude the appellant from now challenging the validity of the s 16(1) notice dated 21 January 1998. She thought any such issue could and should have been brought forward in the proceeding before Burchett J. 6 The appellant tendered at the hearing before her Honour a copy of a letter dated 26 March 1999 from the Minister to his local MP, in which the Minister stated: "The first matter on which you sought clarification in your letter of 3 February 1999 is whether or not I have given the issues of dual criminality and extradition objections sufficient consideration. In my letter to you of 6 January 1999, I advised that once I have made a threshold determination on the matters of dual criminality and absence of extradition objections, these become matters for determination by the magistrate in proceedings conducted pursuant to section 19 of the Extradition Act 1988. Accordingly, it is inappropriate for me to reconsider my decision to issue the notice under section 16 of the Act. You also question whether it is fair to subject Mr Dutton to a further section 19 hearing given that no one is prepared to pay his costs in the first hearing. While it may seem unfair that Mr Dutton has successfully defended the first section 19 hearing and is unable to recover the costs, that reflects the position under law. South Africa is entitled to make a second request for Mr Dutton's extradition, and in the absence of any grounds for declining to proceed with the request Australia, in accordance with international comity, must deal with the request in accordance with the law." 7 Branson J held the appellant was not estopped from claiming: "a declaration that all proceedings taken upon the Notice [dated 21 January 1998] from the time [the Minister] refused to consider material relating to the extradition objections and lack of dual criminality provided to [the Minister], have been invalid and are a nullity", and "an Order that the present application for extradition be stayed as an abuse of process unless and until [the Republic] pays the costs of the Applicant in successfully defending the previous extradition applications made by [the Republic], in relation to the same alleged conduct and the same charges as the present application, in the Magistrates Court proceedings." Her Honour described (at 634) this relief as raising the complaint that the Attorney-General and the Minister denied the appellant natural justice and procedural fairness when they failed to consider whether certain material placed before them by the appellant might warrant the withdrawal of the notice dated 21 January 1998. 8 However, her Honour summarily dismissed these claims because each of them disclosed "no reasonable cause of action". She accepted (at 635) the respondents' contention that the statutory scheme contained in the Act does not allow for the withdrawal of a s 16 notice. Her Honour rejected (at 637) the appellant's contention that the Court has a general supervisory jurisdiction over magistrates hearing extradition proceedings and over parties to extradition proceedings, such as to enable the Court to overcome what the appellant characterized as the "legislative oversight" which had resulted in the Act making no provision in respect of the costs of extradition proceedings. 9 Counsel for the appellant submitted to us that the hearing before Burchett J was not directed at the validity of the s 16 notice dated 21 January 1998 and, accordingly, Anshun estoppel did not apply. Counsel drew attention to Burchett J's statement (FCR at 303) that he did not understand the appellant's argument in that case to involve a challenge to the decision under s 16 of the Act. Branson J expressly noted that statement (at 633) but the important thing to bear in mind is, as her Honour observed (at 634), that the appellant was obliged, when challenging extradition proceedings based on that notice, to bring forward his whole case. Indeed, in the proceeding before Burchett J the appellant's points of claim, as amended, clearly impugned the validity of the notice dated 21 January 1998. The fact that the point was not argued only reinforces the strength of the Anshun estoppel which was, in our opinion, correctly identified by Branson J. 10 So far as the alleged power to withdraw a notice issued under s 16(1) of the Act is concerned, counsel for the appellant did not suggest any statutory source for such a power of withdrawal. He contented himself with the submission that her Honour's construction meant that, if the Attorney-General had a change of mind, potentially expensive and ultimately futile proceedings under s 19 of the Act would still have to be conducted. This, it was submitted, would be an absurd result. 11 Section 19(1) of the Act provides: "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 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." 12 The provisions of pars (a)-(d) must all be satisfied before a magistrate commences proceedings under s 19 of the Act. As her Honour noted (at 635), par (b) of s 19(1) only requires that the Attorney-General "has given" a s 16(1) notice. If such a notice was given and subsequently withdrawn, that requirement would still be fulfilled. The result suggested by counsel would thus not be avoided. A more likely route for avoiding the inconvenience of futile proceedings may be provided by s 17(1) of the Act. That provision would seem to permit the Attorney-General, even after he has issued a s 16(1) notice, to cause a person's remand to cease. That person would then not be "on remand under section 15" within the meaning of s 19(1)(a), and proceedings under s 19 could not commence. 13 Her Honour noted (at 635) the existence of the Attorney-General's s 17 power. In that context, she expressed her view that a notice under s 16 of the Act, once issued, cannot be withdrawn. We agree. 14 The appellant, or his local MP on his behalf, never asked the Minister on behalf of the Attorney-General to exercise any power available under s 17. Nonetheless, Branson J dealt with this possibility (at 636): "Further, in my view, it is a necessary implication from the statutory scheme established by the Act that the Attorney-General is not obliged to accord to a person in the position of the applicant an opportunity to be heard on the question of whether the Attorney-General should form the view that his or her remand under s 15 of the Act should cease - at least to the extent that such person wishes to ventilate issues required to be considered by the magistrate who conducts the extradition proceeding under s 19 of the Act. It would be disruptive of the scheme established by the Act if a person in the position of the applicant were to have repeated rights to be heard in respect of the same issues. The statutory scheme viewed in its entirety gives the applicant adequate opportunity to present his case on the issues of extradition objections and "dual criminality". 15 In dealing with what the appellant's counsel called the "question of costs", he repeated to us the submissions recorded in her Honour's reasons (at 636-638). What her Honour had to say on this topic was clearly correct, bound, as she was, in respect of the nature of s 19 proceedings by the decision of the Full Court of this Court in Papazoglou v Republic of Philippines (1997) 74 FCR 108, to which she referred. We were faintly asked to reconsider the views expressed in that decision. No such submission was foreshadowed in the grounds of appeal. We declined to do so, particularly in the light of the acknowledgment by counsel for the appellant that he had not read the Full Court's reasons for judgment. 16 Branson J's conclusion on the statutory construction and jurisdiction issues, with which we agree, meant that the appellant's claims, which her Honour held that the appellant was not estopped from pursuing, were nonetheless doomed to fail. Summary termination was entirely justified. In judicial review cases it is more usual, in the context of summary dismissal, to speak of the claim disclosing "no reasonable basis for the application", rather than "no reasonable cause of action". See, for example, Federal Court Rules, O 54 r 6. That is, however, a minor semantic quibble. In our view, her Honour's decision summarily to dismiss these claims was the correct and preferable way of determining the remaining claims in the proceeding before her. 17 The appeal was utterly hopeless. A date having been fixed this month for the resumption of the s 19 proceedings, it was appropriate forthwith to pronounce the order dismissing the appeal.