Pauga v Chief Executive of Queensland Corrective Services

order made by: COLVIN J DATE OF ORDER: 16 SEPTEMBER 2022

1. The determination by the third respondent that the applicant is eligible for extradition be quashed.
2. The warrant of committal of the applicant dated 9 July 2021 and signed by the third respondent be quashed.
3. The proceedings under the Extradition Act 1988 (Cth) in respect of which a warrant dated 14 July 2020 was issued for the arrest of the applicant and in respect of which he was arrested be remitted to a magistrate who has accepted the function and power to conduct proceedings under s 19 of the Extradition Act for such proceedings to be determined according to law.
4. The applicant be remanded in custody until 7 October 2022 or such further date as may be ordered by a judge of this Court.
5. There be liberty to apply as to the remand of the applicant.
6. Otherwise, the further remand of the applicant as required by s 15(2) of the Extradition Act shall be determined by a magistrate who has accepted the function and power to remand a person under s 15(2) of the Extradition Act.
7. Save as ordered herein, the application is dismissed.
8. The question of any order as to costs of the proceedings be reserved for determination on a date to be fixed.
9. On or before 7 October 2022 any party seeking an order for costs of the proceedings shall file a minute of proposed orders stating precisely the terms of the cost order sought together with submissions of no more than 5 pages and any affidavit in support. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 In July 2020, a warrant for the arrest of Mr Talalelei Pauga was issued under s 12 of the Extradition Act 1988 (Cth). It was issued following a request from the Independent State of Samoa. Thereafter, Mr Pauga was arrested and taken to the Brisbane Watch House. Four days later, he was transferred from the Brisbane Watch House to the Arthur Gorrie Correctional Centre (Correctional Centre). He claims that his detention has been and continues to be unlawful. Numerous grounds are advanced to support that claim. They are based upon alleged failures to conform to the requirements of the Extradition Act by various Queensland magistrates. 2 Speaking generally, the claims made concern the way in which Mr Pauga was purportedly remanded as well as the conduct of a hearing on 8 and 9 July 2021 (July Hearing) concerning whether Mr Pauga was eligible for surrender under the Extradition Act. The July Hearing was conducted by Magistrate Previtera, a Queensland magistrate (Primary Magistrate). At the conclusion of the July Hearing, her Honour signed a form of warrant ordering the committal to prison of Mr Pauga to await his surrender under the Extradition Act (Warrant of Committal). 3 By proceedings commenced in this Court in July 2021, Mr Pauga seeks an order that he be released from custody or that a writ of habeas corpus issue 'to show cause as to the lawfulness of [his] custody' (First Application). The First Application also seeks orders quashing various documents produced at or after the hearings before various Queensland magistrates in the period leading up to the July Hearing. All parties accept that the relevant authority conferred upon magistrates under the Extradition Act is administrative in character and is to be exercised as a persona designata. 4 The administrative character of the power exercised by magistrates under the Extradition Act has significance for the extent to which an attack may be raised in the context of proceedings in which a writ of habeas corpus or an order in the nature of habeas is sought. Where a warrant that is on its face valid and is sustained by orders made by a court then the warrant itself will sufficiently answer the application: Vasiljkovic v Honourable Brendan O'Connor [2010] FCA 1246 at [61]. In such a case, it would be necessary to seek to challenge the order by way of appeal or by way of prerogative relief having regard to the nature of judicial power. However, where, as here, the authority for the warrant is the exercise of executive power then it is possible to raise an issue as to the lawfulness of that exercise as a basis for relief in the nature of habeas corpus. 5 The contentions advanced to support the relief sought include claims that (a) Mr Pauga was not remanded as required by the Extradition Act; (b) the magistrates involved purported to exercise judicial power when the only authority they had was administrative power as personae designata; (c) some of the documents that have provided the basis for the detention of Mr Pauga were issued by court officers and not by the decision of any magistrate acting administratively; (d) there was a failure to accord procedural fairness in relation to the conduct of the July Hearing; and (e) the form of the Warrant of Committal does not conform to the requirements of the Extradition Act. In short, it is claimed that actions have been taken that are beyond the statutory authority conferred by the Extradition Act and, in consequence, the ongoing detention of Mr Pauga lacks lawful justification. A claim of apprehended bias on the part of the Primary Magistrate was not pressed (although it was a matter that was raised before her Honour on a number of occasions). 6 The proceedings were brought against Samoa, each of the Queensland magistrates who conducted hearings in the extradition proceedings concerning Mr Pauga and the Chief Executive of Queensland Corrective Services (Chief Executive). The Attorney-General for the Commonwealth intervened. In the course of interlocutory steps there were appearances for the Queensland magistrates in relation to disclosure orders sought against them. However, the Queensland magistrates submitted to any final order and did not appear at the final hearing. 7 The Chief Executive took a limited part in the final hearing. The position of the Chief Executive was that Mr Pauga was detained initially on the basis of documents that were issued after each appearance before a Queensland magistrate that stated that he had been remanded in custody (referred to in the proceedings as Form 44s) and thereafter on the basis of the Warrant of Committal. The Chief Executive maintained that the Form 44s and the Warrant of Committal were sufficient authority to detain Mr Pauga and it was not for the Chief Executive to go behind those instruments. Otherwise, the Chief Executive did not seek to be heard on any issue as to the validity of those instruments and whether they could or should be set aside as contended for by Mr Pauga. Rather, those aspects of the case advanced by Mr Pauga were addressed by Samoa and the Attorney-General as intervenor. 8 The Extradition Act also confers a statutory right to seek review of the making of an order that a person be committed to prison to await surrender: see s 21(1). By separate application, Mr Pauga has exercised the statutory right to seek judicial review of the order made at the July Hearing that Mr Pauga was eligible for extradition (Second Application). The Second Application assumed the validity of the Warrant of Committal and sought statutory review of the making of the order that led to its issue. The merits of the Second Application (which was heard immediately after the First Application) are considered in separate reasons to be published at the same time as these reasons. 9 Shortly prior to the scheduled hearing of the two substantive applications, those acting for Mr Pauga indicated that they were ready to proceed with applications by Mr Pauga for bail. Those applications had been flagged from the outset but there was considerable delay by those acting for Mr Pauga in identifying the basis for the applications. Shortly after hearing the two substantive applications, I heard the bail applications. After reserving my decision on those applications for a short time, I refused the applications and indicated that reasons for doing so would be published at the same time as the reasons on the substantive applications. Therefore, these reasons (and the separate reasons in respect of the Second Application) also deal with the question of bail.

Outcome 10 For the reasons which follow, the First Application should be allowed on the sole basis that Mr Pauga was not afforded procedural fairness at the July Hearing because of the pre-emptory refusal of his application to adduce oral evidence. All other claims and contentions should not be upheld. The Warrant of Committal should be set aside and the matter remitted for determination according to law. Mr Pauga shall be remanded in custody by order of this Court until the supervision of his remand is resumed by a Queensland magistrate. 11 I will reserve the question of any order for costs for later determination if the parties are unable to agree cost orders.

The contentions advanced by Mr Pauga expressed as propositions 12 The case advanced by Mr Pauga complains about the events that occurred on various dates in 2020 and 2021 when hearings were conducted before Queensland magistrates in Brisbane. Throughout that period, Mr Pauga was held in custody, initially on the basis that he had been arrested pursuant to an extradition arrest warrant and thereafter on the basis that he had been remanded in custody under s 15 of the Extradition Act. 13 The case advanced for Mr Pauga on the present application raised many separate contentions as to why his detention is unlawful. Ultimately, they came to be set out in a statement of grounds that was filed shortly prior to the final hearing. The statement of grounds was received on the basis that it was a submission setting out a comprehensive list of each contention advanced on the First Application. I explained the history of the circumstances in relation to the identification of the grounds of the First Application in Pauga v Chief Executive of Queensland Corrective Services (No 5) [2022] FCA 684. The statement of grounds was filed after those reasons were published. As the case for Mr Pauga at the final hearing was put on the basis that the only grounds that were pressed were those set out in the statement of grounds, I will confine myself to the contentions raised in that document. To be clear, evidence and submissions to be found in the materials that are not relevant to the matters listed in the statement of grounds will not be considered. 14 In due course, it will be necessary to consider in some detail the history of the appearances before various Queensland magistrates consequent upon Mr Pauga's arrest and then to address the contentions raised for Mr Pauga in that context. However, at this stage, it is possible to divide the contentions advanced in support of the First Application into the following propositions, namely: (1) Contrary to the terms of s 15(1) of the Extradition Act, Mr Pauga was not brought before a magistrate as soon as reasonably practicable after his arrest with the consequence that he has never been lawfully detained. (2) In making orders to remand Mr Pauga and the directions and orders as to the conduct of the July Hearing, the Queensland magistrates purported to exercise judicial power and thereby acted without any lawful authority. (3) Certain of the instruments purporting to authorise the continuing detention of Mr Pauga in the period from his arrest until the July Hearing (being the Charge Sheet and Form 44s) were not valid because (a) their contents meant they were not valid and therefore did not authorise any remand under the Extradition Act; and (b) they were prepared and issued by persons other than the Queensland magistrates with the consequence that Mr Pauga was not lawfully detained. (4) There was no remand ordered by the Primary Magistrate at the hearing on 30 October 2020 with the consequence that thereafter he was not lawfully detained. (5) There was no jurisdiction to conduct the July Hearing unless Mr Pauga had been lawfully remanded and by reason of each of the matters stated in (1) to (4) he had not been lawfully remanded. (6) There was no jurisdiction to conduct the July Hearing unless an application had been made to the Primary Magistrate for proceedings to be conducted under s 19 of the Extradition Act in relation to Mr Pauga and no such application had been made, with the consequence that the Primary Magistrate had no jurisdiction to issue the Warrant of Committal. (7) There was no jurisdiction to conduct the July Hearing unless the Primary Magistrate considered that Mr Pauga had been allowed reasonable time in which to prepare for the conduct of the proceedings under s 19 of the Extradition Act and as the Primary Magistrate did not form that view before proceeding with the July Hearing the Primary Magistrate had no jurisdiction to issue the Warrant of Committal. (8) Alternatively to (7), the consideration by the Primary Magistrate as to whether the applicant had been allowed a reasonable time in which to prepare for the conduct of the proceedings under s 19 of the Extradition Act was undertaken without affording procedural fairness to Mr Pauga. (9) Alternatively to (7) and (8), the view of the Primary Magistrate that s 19(1)(d) of the Extradition Act had been met was formed in a manner that was arbitrary and capricious because the Primary Magistrate did not investigate the facts. (10) The July Hearing was conducted without opportunity for Mr Pauga to make submissions or adduce evidence with the consequence that the Primary Magistrate did not consider whether there were any extradition objections. (11) The Warrant of Committal was invalid by reason of the form in which it was issued. (12) Section 15 of the Extradition Act does not authorise the remand of a person in prison. 15 The statement of grounds also includes claims in relation to the detention of Mr Pauga in the Brisbane Watch House after his arrest. It is alleged that he was held in the Brisbane Watch House from 20 August 2021 to 24 August 2021 without authority and was transferred from there to the Correctional Centre without authority. No oral submissions were advanced to explain the purport of those claims. In those circumstances, I treat them as alleged conclusions that are said to follow from the propositions. As best I can tell, that is mostly the nature of what is stated in paragraphs 16 and following of the statement of grounds.

An important premise for much of Mr Pauga's case 16 In order to support the issue of a writ of habeas corpus or an order in the nature of habeas corpus, an applicant must establish matters that bear upon the validity of the applicant's current detention. Past unlawful detention may give rise to a claim for damages for unlawful imprisonment but it is not relevant to the present application unless it can be said to infect the validity of Mr Pauga's current detention. I referred to the relevant authorities in AKW22 v Commonwealth of Australia [2022] FCA 869 at [14]-[16]. As there explained, a person who was once detained without authority may subsequently become detained with authority. Accordingly: … if the lawfulness of the current detention of a person depends solely upon current circumstances then it is only those circumstances that are to be examined. … If the lawfulness of the current detention depends wholly or partly on past circumstances then those circumstances must be evaluated. All of which is to expose the importance of considering the nature and extent of the particular power relied upon to justify detention. Whether past actions affect the lawfulness of the current detention depends upon the nature of the authority relied upon to detain the person. 17 Mr Pauga is not currently being detained on the basis that he is remanded under the provisions of the Extradition Act. Rather, his current detention is only sought to be justified by the Warrant of Committal. Therefore, it is necessary for Mr Pauga to advance a basis upon which the Warrant of Committal is unlawful or that some aspect of the past events means that his current detention is unlawful.

Structure of these reasons 18 There was no real factual dispute as to the course of events. Rather, the dispute concerned the proper legal characterisation of those events or the legal significance to be given to them. Therefore, I will begin the main part of my reasons by describing the chronology. I should be taken to have made findings in the terms set out in the parts of these reasons that describe the chronology (being the section describing the chronology of events from arrest to the July Hearing and the section concerning what occurred at the July Hearing before the Primary Magistrate). 19 I will then deal with each of the propositions advanced by Mr Pauga. In the course of doing so, I will address contentions advanced by Samoa and the Attorney-General for the Commonwealth as intervener (supported in some respects by the Chief Executive) to the effect that the application of principles of res judicata, issue estoppel or abuse of process (either separately or together) mean that Mr Pauga is unable to raise propositions (1), (2), (3) and (4) in these proceedings. 20 Finally, I will provide my reasons for refusing the bail application. 21 However, before addressing the propositions advanced by Mr Pauga, I will begin with a brief explanation of the statutory provisions and my consideration of the issues of statutory construction that arise concerning s 15 and s 19 of the Extradition Act. I will then turn to some general findings concerning the claim that the way in which the Queensland magistrates conducted hearings supports the claim that they acted judicially. I will also summarise the relevant principles concerning res judicata, issue estoppel and abuse of process.

General principles of construction 22 'The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose': SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ), see also at [37]-[39] (Gageler J). However, a very general purpose will not provide much context and the nature of the task, which requires the interpretation of the language of the statute, must be adhered to throughout: R v A2 [2019] HCA 35; (2019) 269 CLR 507 at [32]-[37] (Kiefel CJ and Keane J). The process should not be guided by making an a priori assumption about the purpose of the provision: Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 at [21]. It is the words of the statute that have constitutional effect and the fundamental duty of the Court is to give meaning to the legislative command according to the terms in which it has been expressed: Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 at [16]; and Tian Zhen Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at [28]. 23 In the present case, no party sought to advance any purpose that should guide the proper construction of the provisions of the Extradition Act. Plainly, the broad purpose of the legislation is to provide for the manner in which persons may be extradited to and from Australia (see long title). The principal objects of the legislation are expressed in s 3 in the following terms: The principal objects of this Act are: (a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence; (b) to facilitate the making of requests for extradition by Australia to other countries; and (c) to enable Australia to carry out its obligations under extradition treaties. 24 In addition to due regard to context and purpose, where, as here, the legislative provision is concerned with a fundamental common law right or freedom such as the right to personal liberty then that right will not be abrogated, curtailed or overridden without unmistakable and unambiguous language: Coco v The Queen (1994) 179 CLR 427 at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ); and Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at [21] (Gleeson CJ) quoted with approval in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [15]; and North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 at [11] (French CJ, Kiefel and Bell JJ), see also R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 (Brennan J); and Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [20] (Gleeson CJ). 25 As to context, the meaning of particular provisions is to be considered within the scheme and framework of the legislation rather than read in isolation: Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 at [136]-[138].

Section 15(1) 26 Section 15(1) of the Extradition Act provides that: A person who is arrested under an extradition arrest warrant shall be brought as soon as practicable before a magistrate or eligible Judge in the State or Territory in which the person is arrested. 27 Mr Pauga submits that s 15 requires a person to be brought physically before a magistrate or eligible Judge. The terminology 'brought before' is a time honoured phrase used in provisions that are designed to protect from arbitrary detention by ensuring that the ongoing detention of a person must be justified to a judicial officer, albeit in the present case a magistrate or judge exercising administrative power as a persona designata. It is language that is used to express the common law requirement that a person who is arrested must be brought before a justice of the peace or a court as soon as practicable: North Australian Aboriginal Justice Agency Limited v Northern Territory at [28] (French CJ, Kiefel and Bell JJ), [97] (Gageler J); and Williams v The Queen (1986) 161 CLR 278. The substantive significance of the words lies in the fact that they require prompt judicial scrutiny of the basis for ongoing detention (usually by the bringing of a charge). However, in the case of executive detention it requires that there be prompt regard to the source of any power to detain and whether there is any basis for the exercise of the power in respect of the person brought before the person entrusted with the relevant authority. It ensures conformity with fundamental limitations upon the extent to which there may be executive detention by requiring prompt consideration as to whether detention is justified by the limited circumstances in which such detention is constitutionally lawful. 28 It was submitted for Mr Pauga that the terminology 'brought before' also facilitated the examination of the person under arrest in order to ensure a correspondence between the identity of the arrested person and the identity of the person the subject of the charge (or whose ongoing detention was to be otherwise justified) and this could not occur without the person being physically present before the magistrate. It was further submitted that if a person is not brought before a magistrate as required then the consequence would be that the lawfulness of the arrest pursuant to the extradition arrest warrant would come to an end and the authority of the arrest warrant could not be relied upon thereafter as the lawful justification for Mr Pauga to be detained or re-arrested. 29 Under previous legislation dealing with extradition there was a reference to any magistrate before whom a person 'may be brought': s 15(1)(b) of the Extradition (Foreign States) Act 1966 (Cth). In Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 98, Wilcox and O'Loughlin JJ said of that provision: If a person arrested under a warrant was remanded in custody to appear at a later date, it would be a natural use of language to describe him as being 'brought' before the magistrate on the remand day. Perhaps the phrase 'may be brought' less literally describes the position of a person remanded on bail. But such a person is required, by the terms of the remand and his bail, physically to appear before the magistrate on the remand day. In that sense he is 'brought' to the court. Although Mr Winkler was entitled to a discharge from his bail on 16 March 1988, he was not in fact discharged. He remained subject to the direction of the court and was required by the terms of his remand and bail to appear before the magistrate on subsequent occasions. (emphasis added) 30 It may be accepted that a requirement for there to be a physical appearance before a judicial officer (or in the present case a judicial officer acting as a persona designata) affords a substantial protection for the arrested or detained person. It enables the judicial officer to question the person directly in circumstances where it is possible by direct observation not only to identify the person but also to hear any complaint concerning the lawfulness of the arrest. It is also possible to see whether answers are being given free from threat, intimidation or other oppressive conduct arising from the circumstances in which the person is being held (noting that there limits on the role of a magistrate in relation to identification for the purposes of extradition proceedings: Marku v Republic of Albania [2013] FCAFC 51; (2013) 212 FCR 50 at [74]). In the context of that aspect of the subject matter, it is significant that s 15 of the Extradition Act uses the phrase, well known to the common law, of 'brought before'. It is terminology which, in the context of arrest and detention, usually means 'physically brought before'. 31 The effectiveness of the protection afforded by the common law requirement would be substantially undermined if it could be met by some form of appearance that was not a physical appearance. Significantly, the circumstances in which an arrested or remanded person facing criminal charges may make a court appearance remotely are addressed by statute: see, for example, in Queensland, s 178C of the Justices Act 1886 (Qld). There is no such provision under the Extradition Act. 32 For those reasons, I conclude that s 15(1) requires a person arrested under an extradition arrest warrant to be physically brought before a magistrate or eligible Judge. As will emerge, that conclusion as to the meaning of the statute accords with views expressed by Crow J of the Supreme Court of Queensland when dealing with an application brought by Mr Pauga for relief in the nature of habeas corpus on the basis of claims that his arrest in August 2020 under the terms of the extradition arrest warrant and his subsequent detention were unlawful. His Honour also made findings to the effect that Mr Pauga had been physically brought before a magistrate 'as soon as practicable'. The significance of those findings is addressed below.

Section 15(2) 33 Section 15(2) provides that a person 'shall be remanded by a magistrate or eligible Judge in custody, or … on bail, for such period or periods as may be necessary for proceedings [required by the Act] to be conducted'. The requirement for remand ensures that the duration of the person's ongoing detention until hearing is subject to supervision. The remand is only to be for so long as is necessary for the extradition proceedings to be conducted, a matter to be adjudged by the magistrate or eligible Judge. 34 There is an issue between the parties as to whether s 15(2) contemplates a single remand for so long as is necessary for the required proceedings to be conducted (with the possibility that the remand may be in custody or on bail) or whether it contemplates that there may be a remand from time to time. The divergence in views concerns the meaning of the words 'for such period or periods as may be necessary for proceedings … to be conducted'. 35 Plainly, there is a statutory requirement for a person who has been arrested and brought before a magistrate as required by s 15(1) to then be remanded until the relevant proceedings have been conducted. In my view, the use of the words 'period or periods' indicates that the magistrate or judge has a discretion whether to remand to a nominated time or until the time of the proceedings (if known) and that the exercise of the discretion is to be informed by what may be necessary for the required proceedings to be conducted. The proceedings themselves may be divided up. For example, there may be an initial remand until a date when an application for bail is to be heard. There may be a remand until a hearing at which some preliminary argument as to the validity of the extradition arrest warrant is to be considered. There may be remand until a date when the steps that might be taken before the proceedings are conducted or are expected to be completed. In each case, such a remand would be for a period that was necessary for the proceedings to be conducted even though it was not a remand until a known date when the proceedings were to be concluded. The use of the word 'period' supports the conclusion that the remand must be to an identifiable date so that the duration of the detention (from one point in time to another) is known at the time of the remand. The importance of supervising the duration of the remand also supports such a construction. 36 If such a course were not possible then the person concerned would be required to be remanded in custody until the proceedings were concluded (which is a date that is unlikely to be known when the person is first arrested and brought before a magistrate as required) and therefore would not appear before the magistrate for any intermediate step in the proceedings, or alternatively there could be no intermediate step. Either of those alternatives would be impractical. As to the first alternative, it would be inconsistent with fundamental rights if part of the proceedings could occur without the person concerned being able to appear. As to the second alternative, there is no reason why the conduct of the proceedings must occur at a single hearing. It follows that I do not accept the contention advanced for Samoa that there must be a single remand for the proceedings or that there could be a remand of unspecified duration (being until the relevant proceedings were completed). 37 However, there is a particular significance to the first remand. Once a person has been 'brought as soon as practicable' before the magistrate or eligible Judge and remanded as required then the arrangements for the ongoing remand are a matter for the magistrate or eligible Judge. Further, the statutory imperative thereafter is to continue to remand the person for such period or periods as may be necessary. So, if there were an initial remand and then a failure to remand on some later occasion then the later failure would not provide the foundation for an order requiring the person to be released from custody. Rather, it would produce the consequence that the person must be remanded as necessary for the extradition proceedings to be conducted. The mandatory nature of the provision requiring remand must be given effect. The duty imposed may be enforced by mandamus, but a failure to perform the duty does not mean that a person is entitled to be released. In that respect, the required analysis bears some similarities to that undertaken in Commonwealth of Australia v AJL20 [2021] HCA 21 at [49]-[53] (Kiefel CJ, Gageler, Keane and Steward JJ). A person who has been remanded is thereafter required to be remanded until the relevant proceedings under the Extradition Act have been conducted. 38 Therefore, I see no basis upon which some failure, by reason of administrative slip or oversight, to order a further remand at the end of a period of remand might found an application for an order that the person be released from detention. In such a case, unless it be shown that remand was no longer necessary for the extradition proceedings to be conducted, the appropriate order would be to require that the person be remanded for a period as may be necessary for the conduct of the required proceedings.

Section 15(4) 39 It may be noted that s 15(4) confers power upon the Attorney-General in respect of a person who is on remand under s 15(2) to issue a warrant in the statutory form authorising a police officer to take the person in custody 'to appear' before a magistrate or eligible Judge 'in a specified State or Territory'. It was suggested that the use of the terminology 'to appear' provided context that supported a construction of s 15(1) that required an arrested person to be physically brought before a magistrate or a judge. In my view the difference in language is explained by the fact that any person to whom s 15(4) applies will already have been brought before such a person and remanded. As to such persons who are the subject of a warrant issued by the Attorney-General under s 15(4), they are required by the terms of s 15(5) to be remanded in custody or on bail by a magistrate or judge in the specified State or Territory. They are not required to be brought as soon as practicable before such a magistrate or judge. The use of the terminology 'appear' reflects the fact s 15(4) and s 15(5) are concerned with a person who has been arrested and remanded. In contrast, the terminology used in s 15(1) 'brought as soon as practicable before' a magistrate or judge reflects the fact that it is addressed to a case where a person has been arrested under an extradition arrest warrant but not yet remanded. 40 Nevertheless, in a case about interstate extradition under the Service and Execution of Process Act 1992 (Cth), it has been determined that personal appearance was required where the legislation required the person '[to] be taken … to a specified place in the place of issue of the warrant': Formica & Forni v Victoria Police [2020] VSC 719 at [29] (Hollingworth J). Despite the use of the different phrases 'the person appear' and 'the person be taken' in the legislation, both were determined to require physical attendance in the jurisdiction to which the person was to be taken under the extradition warrant. The reasoning in that case supports an approach that would require personal appearance after arrest as a basic common law protection, a position which is only to be altered or departed from by the use of clear language.

Section 16, s 17 and s 18 41 Section 16 then provides for notification to any magistrate or eligible Judge of the receipt of an extradition request from an extradition country in relation to a person. It provides as follows: (1) 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 or eligible Judge, state that the request has been received. Person must be extraditable person in relation to extradition country (2) The Attorney-General must not give the notice unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the extradition country. (3) As soon as practicable after the person is remanded under section 15 or the notice is given, whichever is the later: (a) a copy of the notice; and (b) copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b); shall be given to the person. (4) A notice given under subsection (1) is not a legislative instrument. 42 There is provision whereby, in respect of a person who is on remand under s 15, the Attorney-General may direct a magistrate or eligible Judge by notice to release a person from custody or discharge the recognizances on which bail was granted: s 17. There is also a mechanism by which a person on remand may consent to surrender to the extradition country: s 18. Significantly for present purposes, each of those provisions is expressed to apply where 'a person is on remand under section 15'. I note that it would be strange if the validity of a notice from the Attorney-General to release a person, or the validity of any consent to surrender, might depend upon whether the remand itself was valid. Of course, a person who claimed not to have been validly remanded could raise that claim and thereby challenge the lawfulness of their detention. However, there is no evident reason why the lawfulness of a notice requiring a person to be released would depend upon the lawfulness or otherwise of the remand. The evident purpose of the provision is to provide a mechanism by which a person may be directed to be released on the authority of a notice from the Attorney-General. The fulfilment of that purpose does not depend upon the lawfulness of the remand. Similar reasoning applies where a person consents to surrender to the extradition country. The evident purpose is that the consensual act will operate, not that the consent is only effective if it is the case that the remand was lawful. A contrary construction would frustrate the evident purpose of the provisions. 43 It follows that the reference in s 17 and in s 18 to the provision applying where the person is on remand under s 15, is referring to a matter of fact not a matter of lawfulness.

Section 19(1) 44 Then, s 19 provides for a process by which there may be a determination of the eligibility of the person for surrender to the extradition country. It begins with the following provision in s 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 or eligible Judge 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 or Judge considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings; the magistrate or Judge 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. 45 It can be seen that the structure of the provision is to describe four requirements and then to provide that where they exist the magistrate or eligible Judge must conduct proceedings to determine whether the relevant person is eligible for surrender in relation to the identified extradition offences to the extradition country. I will refer to those proceedings as Section 19 Proceedings. 46 The four requirements in s 19(1)(a) to (d), were described in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 537 by Brennan CJ, Dawson and McHugh JJ as 'conditions of jurisdiction' that must be satisfied. It was common ground in the present proceedings that each of the requirements was a 'jurisdictional fact'. For reasons explained below, that common position was correctly adopted. However, as we observed in Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225 at [29] (Besanko, Banks-Smith and Colvin JJ): The term is perhaps inapt because it may be applied to an opinion or an assessment that must be held or undertaken before a decision making power arises (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [130] (Gummow J)) or a state of satisfaction that must be reached (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [37] (Gummow and Hayne JJ, Gleeson CJ agreeing)). However, where the opinion or state of satisfaction is to be formed by the same decision-maker who is entrusted with the ultimate power that is to be exercised it may be appropriate to use the term pre-condition to describe the power for reasons stated by Basten JA in D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [241]. 47 I note that s 19(1)(d) takes the form identified by Basten JA. It may be accepted that each of the four requirements in s 19(1) is a pre-condition which must be satisfied before a magistrate or judge has the authority and duty to determine whether the person is eligible for surrender in relation to the extradition offence for which surrender of the person is sought by the extradition country. Therefore, I will refer to the four requirements as the Four Pre-Conditions. 48 The first of the Four Pre-Conditions is that the person is on remand under s 15. It takes the same form as s 17 and s 18. In my view, the use of the same words in s 19 as those found in earlier provisions is intended to express the same requirement. For reasons already given, the requirement is met if, as a matter of fact, a decision has been made to remand the person under s 15(2) and an order to that effect is produced. There would be practical difficulties if each of those provisions, including s 19(1)(a), required an investigation of the circumstances of the remand and a conclusion that the remand is lawful before the statutory provision operated. A person in respect of whom the lawfulness of their remand had not been demonstrated would face practical difficulties in the sequence of steps contemplated by the Extradition Act to be undertaken. Those steps are explained below. 49 As to s 19 in particular, there is no suggestion that the person conducting the Section 19 Proceedings would have any authority to finally determine the lawfulness of the remand. A decision of that kind could only be made by a court. In circumstances where a magistrate or eligible Judge had in fact made a determination to remand a person and the person was consequently in custody or released on bail but there was some reason to doubt the lawfulness of the determination, the person would be required to abide by the terms of the remand but could not require the Section 19 Proceedings to be undertaken. An example is suggested by the present case where an issue was raised for Mr Pauga as to whether a decision by an acting magistrate would be valid for the purposes of the Extradition Act. Until a point of that kind had been resolved, there would be uncertainty as to whether the pre-condition in s 19(1)(a) was satisfied and therefore uncertainty as to whether there could be Section 19 Proceedings. 50 Further, a person who is brought before a magistrate must be remanded, either in custody or on bail: see s 15(2). Therefore, under the sequence that follows the issue of an arrest warrant, the Extradition Act requires a person to be remanded. If there is an invalid remand then the statutory command must still be met. The necessary result of invalidity would be mandamus requiring the statute to be carried into effect by remanding the person who has been arrested and brought before a magistrate or eligible Judge as soon as practicable. In consequence, unless some other event intervenes (such as a notice by the Attorney-General under s 17 or a consent to surrender by the person under s 18) such a person must be the subject of Section 19 Proceedings. The evident purpose of the remand is to enable the extradition process. Save for events of the kind that have been described that bring the remand to an end in some other way, it is the Section 19 Proceedings themselves that bring the remand to an end. Section 19(1)(a) is not dealing with an event which may not occur. It is required to occur once a person is arrested pursuant to an extradition arrest warrant. These are further matters that support the conclusion that s 19(1)(a) is describing a matter which has occurred in fact. 51 Finally, I observe that none of the above analysis would prevent a person from claiming that an arrest is unlawful or that the person who has been arrested has not been brought before a magistrate or eligible Judge as soon as practicable. Such matters precede remand: see s 15(1). If there is a failure to comply with s 15(1) then it is the completion of the process of arrest that is invalid. Remand occurs thereafter under s 15(2). So, a claim of invalid arrest could be raised at any point. Section 19 says nothing substantive about arrest. It is concerned only with whether a person is 'on remand under section 15': s 19(1)(a). I take that to refer to the requirement in s 15(2). It assumes that the person has been arrested and brought before the magistrate or eligible Judge as soon as practicable and requires such a person to be remanded. 52 Therefore, in my view, considered in context, s 19(1)(a) is simply reinforcing the sequential nature of the extradition process. It makes clear that the Section 19 Proceedings are only to be undertaken in respect of a person who is in fact on remand under s 15. The sequence commences when an extradition arrest warrant is issued. The circumstances in which an arrest warrant may be obtained are dealt with by s 12. It requires application to a magistrate or eligible Judge. Thereafter, the legislative scheme requires a specified sequence of steps. 53 The above approach is reflected in the reasons of Brennan CJ, Dawson and McHugh JJ in Director of Public Prosecutions (Cth) v Kainhofer at 539 where their Honours said: The authority of a magistrate to conduct proceedings under s 19 depends on the matters specified in sub-s (1) including the making of an order of remand under s 15 and the giving of a s 16 notice. Lacking any power to review those decisions, a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made. Treating the order of remand and the giving of the notice as valid, the s 19 magistrate must proceed on the footing that the person whose surrender is sought is an extraditable person and that the case falls within either par (a)(i) or par (a)(ii) of s 6. It would be a curious interpretation of s 19 to attribute to a s 19 magistrate the power to find that the person is not an extraditable person when the s 19 magistrate's authority depends on the contrary hypothesis. In the administrative sequence, that issue is committed only to the consideration of the magistrate under s 12(1) and the Attorney-General under s 16. 54 The significance of the decision in Kainhofer for a claim that subsequent steps in the extradition process under the Extradition Act depend upon the demonstrated validity of earlier steps was noted, albeit in a different context, in Liem v Republic of Indonesia [2018] FCAFC 135; (2018) 265 FCR 251 at [62]-[65] (Mortimer, Wigney and Lee JJ). 55 Even if it be accepted that there has been a failure to remand in a manner that is lawful, it does not mean that the remand that has occurred in fact is a nullity for all purposes. As was emphasised by Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24]: A decision made outside jurisdiction is not necessarily to be regarded as a 'nullity', in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as 'no decision at all'. 56 The possibility that a decision in fact (the remand of Mr Pauga) may be sufficient to satisfy a particular statutory criteria for a subsequent decision is implicit in the analysis undertaken in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2 at [41]-[66] (Kiefel CJ, Bell, Gageler and Keane JJ), noting that the possibility was not accepted as applying in that case. See also, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19 at [16]-[19], [21]-[24] (Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ); Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; (2015) 255 CLR 231 at [29]-[33] (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ); and Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105 at [28], [36]-[48] (Le Miere J). 57 The issue is to be answered by considering the proper construction of the provision. For reasons I have given, in my view s 19(1)(a) only requires that there to have been a remand in fact. 58 The next of the Four Pre-Conditions is s 19(1)(b) which requires that the Attorney-General must have given a notice under s 16(1). It is the mechanism by which the request from the extradition country is communicated to the magistrate or eligible Judge. It is not contentious in the present case. 59 Then there is the pre-condition in s 19(1)(c). It requires an application to be made to the magistrate or eligible Judge by the person on remand or the extradition country for the proceedings to be conducted. This is the mechanism by which the purpose of the extradition arrest warrant and the arrest is advanced. It enables either party to press for the proceedings to be conducted. It also ensures that there is an ongoing justification for the remand. Without the ongoing prospect of such an application and its ongoing pendency, the remand would be no longer justified. 60 For Mr Pauga, various points were made concerning this requirement. It was said that the application could not be made orally and there needed to be some form of written application. I do not accept that submission. No doubt it is likely that some form of written material will be provided. However, unlike other provisions in the Extradition Act where there is an express requirement for a specific form to be used, there is no form of application specified here. In those circumstances, it will be a question of fact as to whether there has been an application. 61 It was also suggested that there needed to be an application made to the particular magistrate who was to conduct the Section 19 Proceedings and that an earlier application to a different magistrate could not continue to have effect if the carriage of the process passed to a different magistrate. I see no merit in this point. Once an application is made to a magistrate, if the performance of the duty to conduct the Section 19 Proceedings is passed to another magistrate then, in the usual case, as a matter of fact, the matter will pass with the application pending. Significantly, there is no suggestion that the conduct of the Section 19 Proceedings in the present case was divided between magistrates. The Primary Magistrate dealt with the making of directions as to the conduct of the Section 19 Proceedings and also conducted those proceedings. There was no evidential basis to suggest that the statutory matters required to be addressed were considered by any person other than the Primary Magistrate or that some part of the statutory task required by s 19 was undertaken by a different magistrate. The submission in the present case was to the effect that the application was made to a different magistrate at an earlier stage in the chronology. Even accepting that there needed to be an application to the Primary Magistrate as the particular person conducting the Section 19 Proceedings, it will be a question of fact as to whether there was such an application. The fact that there was an application formulated and presented to a different magistrate at an earlier point in time does not mean that there was no such application. Nor does it mean that the Primary Magistrate could not treat that application as, in effect, being made to the Primary Magistrate when her Honour was allocated the task of conducting the Section 19 Proceedings. I deal below with what occurred in fact. 62 The final one of the Four Pre-Conditions is expressed in s 19(1)(d). Unlike the other provisions, it requires a state of mind to be formed by the magistrate or eligible Judge conducting the Section 19 Proceedings, namely that the magistrate or Judge considers that the arrested person and the extradition country have had reasonable time in which to prepare for the conduct of the Section 19 Proceedings. I deal below with whether the final requirement was met in the circumstances of the present case when addressing propositions (7) to (10).

Balance of s 19 63 Otherwise, the terms of s 19 were not in issue on the First Application. Under s 19(9), if the magistrate or eligible Judge determines that the person is eligible for surrender to the extradition country in relation to the extradition offences or one of them, then the magistrate or Judge shall order that the person be committed to prison or released on bail to await surrender (or release as provided for in s 22(5)) and also inform the person of the statutory right to seek a review under s 21(1). Section 19(10) deals with the case where there is a determination that the person is not eligible for surrender in which case the magistrate or Judge shall order the release of the person. 64 Therefore, both from the terms of the concluding words in s 19(1) (after the list of the Four Pre-Conditions) and the terms of s 19(9) and (10) it is evident that the statutory task for a magistrate or eligible Judge in conducting the Section 19 Proceedings is to determine whether the person is eligible for surrender to the extradition country in relation to an identified extradition offence. Further, in a case like the present where a determination is made under s 19(9) it is the order that the person be committed to prison that may be the subject of the statutory review.

Section 21 65 Section 21 confers a statutory right of review of the order made (that is for committal or release). As has been noted, Mr Pauga brings the Second Application under that provision. It is well established that the review to be conducted under s 21 is by way of rehearing as a full merits review (and not simply for error of law): Dutton v O'Shane [2003] FCAFC 195; (2003) 132 FCR 352 at [148] (Finn and Dowsett JJ). However, the review is subject to a limitation which confines it to consideration of the material before the magistrate or eligible Judge who made the decision under s 19: s 21(6)(d). For a time, that limitation was unqualified but an amendment was introduced which made the limitation on the material that might be considered subject to s 21A. Section 21A allows the admission of material that a party was prevented from adducing in the proceedings conducted under s 19 if the review court considers that the party should have been permitted to adduce the evidence. 66 It is important to bear in mind the distinction between the present proceedings (the subject of the First Application) and the separate proceedings brought by Mr Pauga under s 21 (the subject of the Second Application). The Second Application relates to the determination by the Primary Magistrate under s 19(2) and (9) by the conduct of the Section 19 Proceedings that Mr Pauga is eligible for surrender. The First Application does not rely upon s 21. It claims that, for various reasons, the whole of the Section 19 Proceedings were invalid. One of those reasons is a claim that the state of mind formed for the purposes of s 19(1)(d) (to the effect that Mr Pauga had a reasonable time in which to prepare) may be challenged for jurisdictional error.

The hearings before the Queensland magistrates 67 Mr Pauga relied upon a number of attributes of the way in which hearings were conducted before Queensland magistrates after the arrest of Mr Pauga. He claimed that those attributes demonstrated that the Primary Magistrate and other magistrates improperly approached the matter on the basis that they were exercising judicial power. As the only power that was entrusted to them by the Extradition Act was to act administratively, the purported exercise by them of judicial power was said to be invalid. 68 It is appropriate to differentiate between two distinct aspects of the way the claim was put. First, it was said that the proceedings conducted by the magistrates were conducted in circumstances that had the characteristics of judicial proceedings by reason of the place where those proceedings were conducted (a court building), the physical attributes of the court rooms used for the proceedings, the listing and announcement of the proceedings, the way in which the magistrates were addressed in the course of the proceedings and the way in which orders were made and carried into effect. Secondly, it was said that in certain respects what was said and done by particular magistrates indicated that they misunderstood the nature of the power that they were exercising. 69 It is necessary to place the first of these two aspects in the relevant practical context. The Extradition Act entrusted the relevant statutory authority to persons who had been appointed as magistrates. It required those magistrates to conduct hearings for the purposes of the extradition proceedings of persons who were under arrest and, unless released on bail, were to be held in custody. Therefore, as a matter of practicality the hearings that were required to be conducted for the purposes of the Extradition Act needed to occur at a place where it was possible to deal in an appropriate way with an arrested person who was being held in custody (or was to comply with bail conditions). Court rooms were an obviously suitable place for such hearings. Indeed, one may infer from the nature of the proceedings and the judicial office held by the persons who could exercise the administrative authority conferred by the Extradition Act that the legislation contemplated that those persons would use the court rooms and other facilities available to them as judicial officers in order to conduct the administrative proceedings. 70 As to the nature of the power of a magistrate or eligible Judge when conducting extradition proceedings under the Extradition Act, in Dutton v O'Shane at [159], Finn and Dowsett JJ said: It is to be expected that a s 19 magistrate will employ, as appropriate, the practices and procedures applied in the Magistrates Court of the jurisdiction in which the determination is to be made so as to ensure the orderly and fair hearing and determination of the matter. The scheme of the Act is, in our view, premised upon this. And it carries the consequence that the processes adopted would be likely to result in the matter being dealt with in a court-like fashion: see Knauder v Moore [2002] FCAFC 404 at [25]; with, for example, rulings being made on 'the admissibility of evidence', on cross-examination, etc. However, this does not affect the character of the proceeding or of the determination itself. These remain administrative. 71 Further, as was observed by French CJ in Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 at [36], where an eligible judge is appointed by legislation to discharge a substantial non-judicial function, then the hearing of an application before the judge under the legislation 'will yield a decision which is closely linked to the exercise of jurisdiction conferred on the Supreme Court by the Act. It is very likely to involve the use of the facilities and services of that Court'. Although the point was being made for a different purpose, implicitly such a course is appropriate and indeed is to be expected. 72 Finally, there is no suggestion that those who were acting for Mr Pauga were under any misapprehension as to the administrative nature of the proceedings. Indeed, as will emerge, they went to rather extraordinary lengths to emphasise that aspect in ways that, at times, were both unhelpful and supercilious. Therefore, it cannot be said that they did not understand the character of what was occurring. Likewise, those acting for Samoa clearly understood the nature of the proceedings. 73 In those circumstances, there is a distinct air of unreality in the protests made before the magistrates and in the submissions made in these proceedings to the effect that there were aspects of the way things were done that had the character of judicial proceedings. If those participating on behalf of the parties to the proceedings well understood the nature of the proceedings, all those contextual aspects were of no moment. 74 However, the same cannot be said of the second aspect I have described, namely the understanding of the Queensland magistrates of the nature of the authority and power they were exercising. The second aspect may have merit if indeed it supports a conclusion that there was a misapprehension by any of the magistrates, particularly the Primary Magistrate, as to the nature of the power that was being exercised. 75 I say immediately that the second aspect was not differentiated from the first in the way the case was put for Mr Pauga. All matters were rolled up together. However, there were points at which submissions were made which were couched in terms that the magistrates themselves did not understand the task with which they were entrusted. If indeed that was the case then issues may arise as to whether any such misunderstanding affected the way in which the decision was made which led to the issue of the Warrant of Committal and if not, whether such a misunderstanding was a basis upon which the relief sought may be granted. I put the matter in those terms because it may be the case that a decision made in the belief that it was judicial but which, as a matter of law could only operate administratively, was nevertheless undertaken in a manner that conformed to the statute (in terms of the process and reasoning). If so, it may be that the decision could not, for that reason alone, be invalid. 76 For the reasons just given, I put to one side the first aspect of the submission to the effect that the factual circumstances indicated that one or more of the magistrates conducted the proceedings like judicial proceedings. For those reasons, in the chronology of events from arrest until the July Hearing, I include only factual matters that might bear on the second aspect of the submission.

Relevant principles concerning res judicata, issue estoppel and abuse of process 77 In the recent decision of Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 727, Jackson J reviewed the state of law concerning the application of principles of res judicata, issue estoppel and abuse of process to proceedings in which relief in the nature of habeas corpus is sought. His Honour concluded that they may be raised in answer to an application for habeas corpus: at [29]. However, in the result, his Honour preferred to rest his decision in that case on the ground of abuse of process, as explained by the High Court in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 at [24]-[26]: at [35]-[37]. 78 In Tomlinson, the High Court explained that the doctrine of abuse of process 'is informed in part by similar considerations of finality and fairness' and can overlap with the doctrine of estoppel. However, abuse of process 'is inherently broader and more flexible'. Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel. 79 Earlier, in Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ said: [P]roceedings 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 are oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. 80 As to res judicata and issue estoppel, I gratefully adopt the succinct summary of the relevant principles by White J in Matson v Attorney-General (Cth) [2021] FCA 161 at [54]-[65] (a case also concerned with the application of those principles in the context of extradition proceedings): The principle of res judicata operates to preclude a party from litigating in a second proceeding a cause of action which has merged into judgment in a prior proceeding… Issue estoppel is a narrower principle which has the effect that once there has been a judicial determination of an issue, it is to be treated as final with the consequence that it cannot be raised again between the same parties or their privies.

The chronology of events from arrest to the July Hearing 81 The extradition arrest warrant for Mr Pauga was issued on 14 July 2020. Mr Pauga was arrested on 20 August 2020 in Queensland. After his arrest, Mr Pauga was taken to the Brisbane Watch House. 82 The affidavit of Mr Finlayson dated 11 January 2021 sworn in support of the First Application (Finlayson Affidavit) described the arrest warrant as a warrant within the meaning of s 15(1) of the Extradition Act. Further, for reasons that I gave on 24 January 2022 no issue as to the validity of the arrest warrant or the actions of the arresting officer arises in these proceedings: Pauga v Chief Executive of Queensland Corrective Services [2022] FCA 244. The statement of grounds made no such allegation. Therefore, evidence as to what occurred in relation to the arrest of Mr Pauga by a federal police officer and his delivery into custody at the Brisbane Watch House is not relevant to the case as presented at the final hearing. 83 It is significant for present purposes to note that while he was being transported to the Brisbane Watch House, Mr Pauga telephoned Mr Finlayson. Shortly after that, Mr Finlayson sent an email to the Registry of the Magistrates Court of Queensland at Brisbane in which he said: I act for Tala Pauga who has just been arrested on an extradition warrant and whom I am informed is being brought before the Brisbane Magistrates Court. The arresting officer has indicated that the hearing may occur by video or telephone. I wish to co-ordinate being heard at any hearing. Today I am in Adelaide. 84 A court clerk sent a response to Mr Finlayson by email. It said 'I will try to and arrange either a phone or video link for you to appear when the matter is mentioned'. 85 On 20 August 2020, there was a hearing before Acting Magistrate Byrne in respect of Mr Pauga. It is common ground that Mr Pauga was not physically present before the learned Magistrate and remained in the Brisbane Watch House. 86 The transcript of the hearing indicates that at 1.00 pm Mr Finlayson, who was then in Adelaide, was telephoned from a court room where his Honour was sitting. Mr McKechnie announced his appearance as counsel instructed by the Commonwealth Attorney-General's Department on behalf of Samoa. The Magistrate then addressed Mr Finlayson in the following terms: Mr Finlayson, thank you for your appearance. This is Brisbane Magistrates Court 2. I've had the advantage of being informed by Mr McKechnie of the Commonwealth Attorney-General's Department that you have come to a mutual agreement that this matter is to be re-mentioned in early September; is that correct? 87 Mr Finlayson responded 'That's correct'. After some discussion as to the precise time and court room for the re-mention, Mr McKechnie then said: … I don't want to speak out of turn, but I understand that my friend might be considering making a bail application. If that's the case, then it may be a number of hours. If it is just a case of setting further directions for the timetabling of the matter, then 10 minutes - - - 88 The Magistrate indicated that to be safe the matter would be listed for two hours and it would be 'an extradition hearing' and Mr Finlayson then said that it would be 'by the telephone'. Then the Magistrate asked: All right. And it's by consent that the defendant's going to be remanded in custody and appear by video? 89 Mr McKechnie then responded 'Yes', a response to which Mr Finlayson did not demur. Then Mr Finlayson said: 'Your Honour, we also seek liberty to apply for bail in the interim, if we need to foreshadow that'. 90 Mr Finlayson was not informed that Mr Pauga was not present at the hearing on 20 August 2020. He has deposed to a personal belief that Mr Pauga had been brought and was physically present before the magistrate throughout that hearing. He was not cross-examined and it was not suggested that the statement of belief should not be accepted. 91 On 20 August 2020, a bench charge sheet was brought into existence and allocated a court file number (Charge Sheet). It is in a standard form. It is headed 'Magistrates Court of Queensland at: Brisbane'. It contains the details of Mr Pauga and identifies its short title as 'Arrest for the purposes of international extradition under the Extradition Act 1988 (Cth)'. 92 Endorsed on the Charge Sheet in handwriting are the appearances of Mr McKechnie and Mr Finlayson. There is also an endorsement using what appears to be a stamp plus handwriting which is in the following terms: By consent, the Defendant is remanded to appear in Court 18 at am/pm on 3/9/2020 for / committal / mention / P of G / hearing extradition Bail / on own undertaking / enlarged RIC Appear / by video / in person LOP / excused 93 The options for 'mention', 'hearing extradition', 'RIC Appear' and 'by video' are circled. The word 'extradition' has been added in handwriting. Plainly, the abbreviation 'RIC' refers to remanded in custody. Underneath the above endorsements is a signature which appears above 'P J Byrne'. In the Finlayson affidavit it is described as the signature of Acting Magistrate Byrne. 94 There are subsequent endorsements in handwriting on the Charge Sheet. They are described below. 95 Mr Finlayson deposed to the fact that the details of the order made on 20 August 2020 were entered into the Queensland-Wide Interlinked Court System or QWIC database. The evidence to that effect was not challenged and is accepted. 96 A document headed 'Verdict and Judgment Record' (First Form 44) was also produced dated 20 August 2020. It was identified as Form 44, Rule 62 Criminal Practice Rules. It identified the Judicial Officer as 'P Byrne (Acting Magistrate)'. Under the heading 'Chg Offence' it said 'Extradition Warrant'. It then referred to the relevant provision of the Extradition Act for an extradition arrest warrant. Under the heading 'Date of Offence' it said 'On 20/08/2020' being the date of arrest. It referred to that date as the 'Plea Date' and under the heading 'Verdict/Result' said 'ADJOURNED'. 97 Then under the heading 'Judgment or Order of the Court' the First Form 44 referred to the case file number and stated: REMAND IN CUSTODY - Conviction not applicable It is ordered that the defendant be remanded in custody … It is ordered that the proceedings for TALALELEI PAUGA be adjourned for HEARING to COURT 18 - 363 GEORGE STREET, MAGISTRATES COURT at BRISBANE on 03/09/2020 at 09:00 AM. The defendant's personal appearance is required by video link. 98 The First Form 44 was signed 'PROPER OFFICER' and a seal was affixed for 'MAGISTRATES COURT BRISBANE'. Similar records in the same form were produced for subsequent appearances. 99 A few days later, on 24 August 2020, Mr Pauga was taken to the Correctional Centre. It appears that the First Form 44 was relied upon as the basis for his detention at the Correctional Centre. Subsequent Form 44 documents in similar terms were produced after each further hearing before a Queensland magistrate and were treated as the basis for his ongoing detention. Eventually, after the July Hearing, the Warrant of Committal became the basis upon which Mr Pauga continued to be held in the Correctional Centre. 100 On 2 September 2020, a registrar sent an email in the following terms to Mr Finlayson: I understand you currently act for Mr Pauga on his extradition matter listed before Brisbane Magistrates Court tomorrow, 3 September 2020. Can I please confirm whether you require your client by videolink tomorrow, 3 September 2020. Thank you in advance for your urgent clarification in this matter. 101 Mr Finlayson responded with an email in the following terms: Yes we do require our client's attendance. It would assist also if there were some indication of the time when the mater (sic) is likely to be called on. 102 As to this communication, Mr Finlayson deposed: On 2 September 2020, I emailed Registry of the Brisbane Magistrates Court confirming that I required my client's attendance before the Court for the hearing the next day. His statement is somewhat inaccurate when regard is had to the emails. In particular, he neglects to refer to the reference to 'videolink'. 103 On 3 September 2020, Mr Pauga's matter was called on before Magistrate Gilbert. After Mr McKechnie announced his appearance for Samoa, he noted that Mr Pauga was going to be appearing by video link and Mr Finlayson was dialling in. The learned Magistrate then said: There might be some difficulty with that video link actually taking place, and Mr Finlayson has indicated that he did want Mr Pauga to appear on the video link. We're waiting for confirmation due to the restrictions on video links taking place. I might just see if my clerk can [confirm?] that Mr Pauga won't be produced on the video link today. We should alert Mr Finlayson to that. 104 When the matter resumed, Mr Mancini announced his appearance as counsel for Mr Pauga and noted that Mr Pauga was not present but was in custody at the Correctional Centre and after referring to problems in being able to speak to Mr Pauga sought an adjournment for a short period 'to have him appear'. The Magistrate then inquired whether Mr Mancini meant appear by video link. Mr Manini responded 'Whether by video link or -yes, yes'. The Magistrate then indicated the difficulties with securing video links and said there was no guarantee that it would take place on the next occasion. 105 Mr Mancini then responded: … otherwise, your Honour, we were going to seek an adjournment for a period of four weeks, but we - I don't want to leave it [in?] limbo for that period of time. 106 After raising with counsel their availability, the Magistrate then said: With respect to the matter of Talalelei Pauga, the matter is adjourned for an extradition hearing to take place on the 11th of September 2020, in court 18. We'll nominate 9 am. The defendant, Mr Pauga, is to appear by video link on the next occasion and I order a letter of production for his appearance by video link on the next occasion. He is otherwise remanded in custody. Anything further required? 107 In response to the question from the Magistrate, Mr Mancini indicated that they would 'like to obtain a copy of the documents on the court file and can we just do a request in a copy from the registry' (sic). The Magistrate confirmed that could be done. 108 There is an endorsement on the charge sheet dated 3 September 2020 which appears to state: Adjourn for extradition hearing 11/9/2020 Court 18 9 am LOFP by V/C on the next occasion To consider if appearance by deft necessary on next occasion RIC 109 The endorsement is signed above the notation 'R Gilbert'. 110 The hearings on 24 August 2020 and 3 September 2020 coincided with a period when 'lock downs' were occurring and restrictions on movement had been imposed as precautions to deal with the COVID-19 pandemic. 111 On 11 September 2020, the matter was called on before Magistrate Gilbert. Mr McKechnie indicated that he had spoken to Mr Finlayson and he was authorised to communicate for both parties that an adjournment was sought until 18 September 2020 because Mr Finlayson was still unable to get complete instructions and that Samoa consented to the adjournment. After a further exchange with Mr McKechnie, the Magistrate then said: So I'll adjourn it to 18 September 2020, mention, court 19 in the Commonwealth call over at 9 am. Defendant's remanded in custody. Appearance - well, I'm just wondering whether to make his appearance required by video. 112 Mr McKechnie responded that Mr Finlayson had indicated that he did not require appearance at that occasion. He said that he assumed that what will happen is that if Mr Finlayson has instructions there will be a timetable for a bail application, 'exchange of materials and evidence and find a suitable date for hearing'. There was no suggestion that the communications by Mr McKechnie to the Magistrate on 11 September 2020 did not reflect matters that had been agreed with Mr Finlayson. 113 There is a notation on the Charge Sheet which records a consent adjournment to 9.00 am on 18 September 2020 for mention. It records that the defendant did not appear and the defendant is remanded in custody and an appearance is not required for the next hearing. It appears to record that Mr Pauga was remanded in custody. 114 Mr Finlayson deposed that: On 12 September 2020, I was instructed by Mr Pauga for the first time, that, since his arrest he had not been brought before a magistrate, had not appeared by audio visual before a magistrate and had not been attended upon in custody by a magistrate at the hearings conducted on 20 August 2020, 3 September 2020 and 11 September 2020. 115 Of course, expressed in those terms, the statement does not reflect the full extent of the events up until that time and the nature and extent of Mr Finlayson's knowledge from participating in those events. 116 Nevertheless, on 14 September 2020, Mr Finlayson wrote to the Chief Executive asserting that there was no lawful authority for the detention of Mr Pauga by reason of various matters, including an alleged failure to comply with s 15(1) and (2) of the Extradition Act. 117 On 18 September 2020, Mr Pauga's matter came before Magistrate Gett. On that occasion Mr Mancini appeared for Mr Pauga and applied for his release. He put the nature of the application in the following terms: It's an application to your Honour as persona designata under the Extradition Act and it's on the basis ultimately that his detention from the day of his arrest is unlawful or irregular. And so rather than take habeas corpus and declaratory relief under the Human Rights Act your Honour's the first for the court. 118 Mr Mancini pressed his application for immediate hearing on the basis that it concerned the liberty of Mr Pauga and submitted that 'liberty of the subject takes priority over the administrative functions of the state'. He also advanced a submission to the effect that, because the hearing was not a court hearing, privacy should be preserved by having any hearing not open to the public. He also maintained that there was a requirement for Mr Pauga to appear in person irrespective of any order that might be made and that was because the magistrate was acting as a persona designata and not making any orders as a court. 119 The magistrate indicated that any application would have to be heard at a later time and that the matter would be adjourned to 21 September 2020. Mr Mancini persisted with a submission that Mr Pauga was required to be present in person at that hearing and the magistrate ordered a letter of production. 120 On 21 and 22 September 2020 there was a hearing before Magistrate Merrin during which Mr Mancini presented numerous contentions as to why Mr Pauga was alleged to be unlawfully detained. When the matter was first called on, Mr Pauga was not present despite a letter having been issued requiring his personal appearance. The matter was adjourned for a short time and arrangements made for Mr Pauga to be brought to the Queensland Magistrates Court. The hearing proceeded with Mr Pauga being physically present. The contentions advanced by Mr Mancini in support of the application included claims that Mr Pauga had not been physically brought before a magistrate after his arrest as required by the Extradition Act and submissions based upon the significance of Magistrate Byrne being an acting magistrate in the context of magistrates acting as persona designata in extradition matters. Mr Pauga was remanded in custody at the end of the hearing on 21 September 2020 and was physically brought before the magistrate the following day. At the conclusion of submissions Magistrate Merrin reserved her decision and remanded Mr Pauga in custody. 121 In the course of the hearing, those acting for Mr Pauga also filed a separate originating application seeking a declaration under the Human Rights Act 2019 (Qld) that Mr Pauga's detention was unlawful and an order for his release. 122 On 25 September 2020, Mr Pauga was again brought before Magistrate Merrin. Her Honour gave reasons dismissing the application made in the extradition proceedings for the release of Mr Pauga. At the conclusion of delivery of the reasons Mr Mancini was asked whether there was any application for bail and he said that there was no bail application. At that point an oral application was made for Samoa in the following terms: Your Honour, in those circumstances Samoa formally applies for proceedings to be conducted pursuant to section 19 of the Act. That is the next stage of the proceedings to determine Mr Pauga's eligibility for surrender. What would usually happen is that those proceedings are timetabled with the exchange of materials and submissions. 123 Mr McKechnie as counsel for Samoa then pointed out the terms of s 19 of the Extradition Act and submitted that there was a jurisdictional prerequisite that the parties have had enough time to prepare. He indicated that Samoa could file its material and submissions by 16 October 2020 and after allowing time for material from Mr Pauga proposed a hearing on about 16 November 2020. Mr Mancini sought a remand for 60 days which was declined. In response to a statement from Magistrate Merrin to the effect that, having regard to the detailed submissions had already been given, Mr Mancini must be familiar with the process and must have expected that the matter would need to proceed if his claim that Mr Pauga should be released was unsuccessful, Mr Mancini then made the following submission: Not at all your Honour. Not at all. Please don't assume that I have firstly, that knowledge; and secondly that the ordinary courtesy of notification by the other side can be simply dispensed with. I would like to consider my client's position, obtain instructions about the application and about anything further, and before anything further is done, and including the disqualification of your Honour from making any order today, we would ask for a remand and adjournment to consider our position. 124 After further submissions, Magistrate Merrin confirmed with Mr McKechnie that he was bringing the application for proceedings to be conducted under s 19 of the Extradition Act. Mr Mancini persisted with a recusal application in respect of the making of any timetabling orders for the purposes of the s 19 application. The recusal application was refused and Magistrate Merrin said: So all I am saying, Mr Mancini, is I am going to make a direction for you to be provided with material so that you can then respond on the next occasion to the Court and advise them how much time you might need and the matter can be set for hearing, because whoever presides at the hearing, which will not be me - I will recuse myself from the hearing, I have no difficulty with that, will need to be satisfied that you've had sufficient time that's as set out in section 19, subsection (1), subparagraph (d). 125 Then a direction was made requiring Samoa to file and serve material and submissions by 16 October 2020 and otherwise adjourning the matter. Mr Mancini then pressed the magistrate to identify the source of the power to make the direction. Magistrate Merrin responded: Mr Mancini, I am making these directions, and, as I see it, as persona designata I'm permitted to make directions, make decisions in accordance with proper processes to allow the matter to proceed, and, as I see it, upon application by here - Samoa - I need to consider what to do in those circumstances, so adjourned to - which date did you suggest? Perhaps to 30 October. To court 20 on 30 October, at 9 am. Mr Pauga is remanded in custody and is to appear by video link. it's just intended the matter's only for mention on that date … So Mr Pauga is remanded in custody. His appearance is by video link. 126 Thereafter, an application was made in the Supreme Court of Queensland to remove the application under the Human Rights Act into the Supreme Court. 127 On 16 October 2020, Samoa filed and served its written submission and material that it relied upon in relation to the hearing to be conducted under s 19 of the Extradition Act concerning the eligibility of Mr Pauga for surrender. Those acting for Samoa sent an email to Mr Finlayson which said: We refer to the above matter and to the submissions served earlier today by Samoa regarding your client's eligibility for surrender under section 19 of the Extradition Act 1988 (Cth). For your assistance, we advise that, at the next mention on this matter on 30 October 2020, Samoa intends to seek further timetabling orders to prepare for the hearing on eligibility for surrender. In particular, Samoa intends to propose that: • the Respondent file and serve submissions and material that he intends to rely upon by 13 November 2020 (noting that this is one month from service of our submissions and material in chief); • the Applicant file and serve submissions and material in reply to by 27 November 2020; and • the hearing on eligibility for surrender be listed for one day on a date suitable to the magistrate and the parties We would be grateful for advice as to whether your client agrees with this proposed approach to next steps in the matter. 128 By email in response, Mr Finlayson said: Please find attached our application to Magistrate McLeod made on 15th October 2020. Magistrate McLeod will hear … our application for directions at 11:30am on Monday 26th October at the Adelaide Magistrates Court Building, Victoria Square Adelaide. 129 The attachment was a letter to the Duty Magistrate in Adelaide and an application under s 19 of the Extradition Act to determine the eligibility of Mr Pauga for extradition. 130 On 26 October 2020, Magistrate McLeod adjourned the matter brought before him to 9 December 2020 without making any finding as to whether the application could or should be accepted. It appears that the proceedings in Adelaide went no further. 131 On 30 October 2020, there was a hearing before the Primary Magistrate in Brisbane. Mr Pauga appeared by video link. 132 At the commencement of the hearing, counsel for Samoa explained that there was an application under the Extradition Act in which Samoa sought the extradition of Mr Pauga. He said that, before Magistrate Merrin, Samoa had made an application for proceedings to be conducted under s 19 of the Extradition Act and her Honour had timetabled the filing of material by Samoa and listed it for mention. He sought timetabling of filing of submissions and material by Mr Pauga. 133 Initially an application in the following terms (dated 29 October 2020) was pressed by Mr Mancini: 1. Dismissal of such proceedings as may be extant before a magistrate of the Magistrates Court of Queensland. 2. In the alternative an adjournment pending the outcome of Supreme Court of Queensland at Brisbane proceedings 10635/20 and Magistrates Court of Queensland proceedings at Brisbane M2439/20 [being the proceedings under the Human Rights Act] 3. A determination that Talalelei Pauga is not on remand under section 15 of the Extradition Act 1988. 4. That the magistrate call for all transcripts of proceedings before each other Magistrate or Acting Magistrate. 5. That the magistrate decline to exercise any function under the Extradition Act 1988. 6. That such magistrate of the Magistrates Court of Queensland as is seized of any proceedings as may be extant, determine that such magistrate does not have any present power, duty or function in respect of such proceedings. 7. That any magistrate have on file all transcripts of bearings, correspondence, applications, affidavits and documents as have been produced in the course of proceedings to date. 134 Mr Mancini referred to the proceedings under the Human Rights Act as proceedings that 'might be loosely categorised as habeas corpus type proceedings'. He said they were going to resume in the Supreme Court on 6 November 2020. Otherwise, rather than have directions made, he sought to have the application dated 29 October 2020 listed for argument on the basis that Mr Pauga was entitled to bring a challenge to his detention under the Extradition Act. Quite properly, the Primary Magistrate then asked 'Haven't you already done so and you were refused?' to which Mr Mancini responded in the affirmative. However, he maintained that, in effect, he had more evidence and he was entitled to make a further application. 135 A submission was advanced by Mr McKechnie for Samoa that having regard to the various applications that had been made, that Mr Pauga was wasting everyone's time and engaging in vexatious litigation by seeking to re-litigate the same issues in different places. Samoa sought directions timetabling the proceedings. In that regard, the following submission was advanced: Samoa has made a valid extradition request and is entitled to pursue it, so those are my submissions. In term of timing, ordinarily in these matters, someone in Mr Pauga's position would be given a month. If your Honour looks at section 19 of the Act, one of the jurisdictional prerequisites is that a magistrate needs to be satisfied that the parties have had adequate time to prepare. Samoa accepts that these matters can, sometimes, be complicated, and have prepared to, sort of consider, whatever a reasonable time is for the filing of that material. But it's not prepared to have this matter adjourned off to the never never whilst Mr Pauga makes application after application, after application. 136 The Primary Magistrate then proceeded to receive submissions and materials in support of the application dated 29 October 2020. Then after a period of submissions, Mr Mancini sought an adjournment which was refused. There were further exchanges between counsel and the Primary Magistrate. Eventually, the application was withdrawn. Mr Mancini then made inquiries as to whether there was an application under s 19 of the Extradition Act that was before the Primary Magistrate which led to an exchange about the oral application that had been made before Magistrate Merrin at the time that Samoa had been directed to file its materials in support of its application to have the proceedings conducted. At the conclusion of that exchange the Primary Magistrate said: I accept that her Honour, Magistrate Merrin, had an oral application under section 19. She has made directions for the filing of material pursuant to that application, those directions have been met and she's made a note prior to that, that the application is to proceed in accordance with section 19 of the Extradition Act. I accept that the Court has an application to proceed pursuant to section 19 and is intending to proceed on that basis. I'm now going to make a direction that Mr Pauga file and serve any submissions in response to those filed by Samoa before 4 pm on the 27th of November 2020. 137 Mr Mancini then indicated that he was 'going to ask for a little bit longer'. He then asked for the time to be until 11 December 2020. Subsequently, Mr Mancini indicated that what he was proposing to do was not file substantive submissions in response. Rather, he was going to put on evidence as to the steps that were proposed to be taken to gather the material to be relied upon to raise extradition objections. It was articulated by him in the following way: Your Honour, just to be clear, but there's at least a number of stages that we have to go through. One is concerning whether the Samoan materials can be relied upon for the purposes of extradition proceedings continuing; the next question will be whether we've had time and whether time is required to be had - being a reasonable time to then have a hearing effectively on extradition objections. Now we've been working on that ­ those questions, but these are complex issues and they're going to require international law considerations, expert evidence and other things. Some - witness summonses by a magistrate; potentially an application to the Supreme Court under the mutual assistance legislations for evidence to be obtained in Samoa; any hearing is going to take in excess of two weeks and we have to be ready for that. So what we're seeking to do, it's advancing these matters - we will put in some responding submissions and set out some evidence by affidavit of what we have to do. And we'll do that in time for the 11th. 138 However, the Primary Magistrate then made a direction for the filing of submissions in response to Samoa's submissions by 4.00 pm on 10 December 2020 and listed the matter for mention in the call over of Commonwealth matters on 11 December 2020. Mr Mancini asked if the mention would be before the Primary Magistrate to which her Honour responded that she did not know and then said 'I do not consider that I'm seized of this matter as there is no ongoing application before me'. 139 There is no note on the Charge Sheet of any order remanding Mr Pauga. The transcript that was in evidence does not record the making of an order. However, there is a Form 44 dated 30 October 2020 which states: 'It is ordered that the defendant be remanded in custody'. There was no attempt to impeach that record (which was produced by Mr Finlayson as an attachment to one of his affidavits) and it should be accepted as evidence establishing that there was such an order. Of course, the claim that the Form 44 was invalid for various other reasons (along with the other Form 44s) will need to be considered. However, as a matter of fact, I determine that there was an order remanding Mr Pauga in custody. 140 On 6 November 2020 there was a hearing before Martin J of the Supreme Court of Queensland of action 10635/2020, being the proceedings under the Human Rights Act. Leave was given to Mr Pauga to file an amended originating application in those proceedings seeking the issue of a writ of habeas corpus. The matter was listed for hearing on 16 December 2020. The amended application was in the following terms: 1. That a writ of habeas corpus issue to the Chief Executive Queensland Corrective Services that Talalelei Pauga be brought before the Court and submit to the further order of the Court as to his custody. 2. That Talalelei Pauga forthwith be released from the custody of the Chief Executive Officer of the Queensland Corrective Services. 3. That Talalelei Pauga forthwith be released from custody at Arthur Gorrie Corrective Centre. 141 The following consolidation of grounds for the application was also provided: 1. The detention in custody of Talalelei Pauga has been and continues to be wrongful or irregular. 2. A person holding the office of a Magistrate in Queensland is not acting in the capacity of a magistrate when carrying out any functions as a persona designata under the Extradition Act 1988. Such a person is acting in their personal capacity and not as a court or a member of a court pursuant to section 45B of the Extradition Act 1988. 3. The Magistrates Court of Queensland does not have jurisdiction to remand Talalelei Pauga and the Forms 44 of the Queensland Magistrates Court were made without jurisdiction or in the alternative exhibit an error of law on their face in purporting to be instruments of the Queensland Magistrates Court exercising powers under the Extradition Act 1988 (Cth) which powers the Magistrates Court of Queensland does not have. 4. Mr Pauga was not brought before a magistrate as a persona designata as soon as practicable as required by section 15 of the Extradition Act 1988 following his arrest on [the] extradition arrest warrant and his imprisonment became unlawful at the end of the time in which he might reasonably practically have been brought and any purported orders of remand of Mr Pauga were in excess of jurisdiction in the absence of Mr Pauga having been brought as soon as practicable or at all before a Persona Designata. 5. At the time of the Queensland Arrangement the office of Stipendiary Magistrate was an office under the Justices Act, there being no office of 'acting magistrate'. 6. 'Magistrate' is defined in section 5 of the Extradition Act 1988 as, inter alia, 'a magistrate of a State or the Australian Capital Territory in relation to whom an arrangement is in force under section 46'. 7. Section 46(1) of the Extradition Act 1988 provides that the Governor-General may arrange with the Governor of a State for the performance, by all or any persons who from time to time hold office as magistrates of that State, of the functions of a magistrate under the Extradition Act 1988. 8. An acting magistrate is not included in such arrangements. An acting magistrate does not hold office as a magistrate in the State of Queensland and the office of acting magistrate was not either in existence at the time of, or in the contemplation of the arrangement entered into between the Governor-General of the Commonwealth and the Governor of Queensland of 30 November 1988. 9. Section 6 of the Magistrates Act 1991 (Qld) provides for the appointment of acting magistrates. By virtue of section 6(6) a person who is appointed to act as a magistrate acts as a magistrate only when directed by the Chief Magistrate to carry out the duties of a magistrate. By virtue of section 6(7), the Magistrates Act 1991 and other Acts apply to the person acting as a magistrate as if the person were a magistrate. 10. The appointment of an acting magistrate is not to the office of a magistrate and is to be contrasted with the appointment of a magistrate under section 5. A magistrate exercises all the jurisdiction, powers and functions conferred on a magistrate by or under the law of the State by virtue of section 8. 11. However, an acting magistrate does not exercise the jurisdiction, powers and functions of a magistrate under section 8. Rather, an acting magistrate acts with limitations as prescribed by the directions of the Chief Magistrate to carry out the duties of a magistrate, as distinct from the jurisdiction, powers and functions of a magistrate in the statutory office of a magistrate of the Magistrates Court. 12. Therefore, Acting Magistrate Byrne purporting to do anything in respect to Mr Pauga on 20 August 2020 was not empowered to do so. He was not capable of exercising any powers under the Extradition Act 1988 because, as merely an acting magistrate, he was not a magistrate, had limitations upon him in his role as an acting magistrate and was not identified in that role as a persona designata for the purposes of the Extradition Act 1988 or the Queensland Arrangement. 13. Insofar as the Acting Magistrate presiding on 20 August 2020 held any office, he held the office of an acting magistrate and not the office of a magistrate. This is further established by section 50 of the Magistrates Act 1991. 14. Any purported remand of Mr Pauga by the Acting Magistrate was not authorised by the Magistrates Act 1991 nor the Extradition Act 1988, was beyond power and in excess of jurisdiction. 15. The Acting Magistrate presiding on 20 August 2020 was not a magistrate for the purposes of section 15 of the Extradition Act 1988 which required that Mr Pauga be brought before a Persona Designata, as distinct from an acting magistrate. 16. The attendance on 3 September 2020 before a magistrate did not have Mr Pauga in attendance. He was in custody at the Brisbane watch house and had not been brought. Any remand of a person in custody requires that the person attend or appear at the conclusion of the period of each remand to be further remanded or otherwise dealt with according to law. It is a fundamental requirement that the person appear or attend so as to engage a Persona Designata's power to again remand. A person cannot be lawfully remanded in custody in the absence of appearance by the person. It is by virtue of a warrant of remand, warrant of commitment, order for remand or Form 44 Rule 62 Criminal Practice Rules Verdict and Judgment Record that a person is lawfully remanded in custody and the requisite legal authority exists for detention and admission to a corrective services facility as required, being necessary but not sufficient, by section 9 of the Corrective Services Act 2006. 17. The proposed listing of the extradition matter on 30 October 2020 ought not occur in the Magistrates Court of Queensland as it has no jurisdiction to deal with the matter and a prohibition injunction ought issue. 18. The proceedings on each occasion on 3 September 2020, 11 September 2020, and 18 September 2020 did not take place m accordance with the applicable Magistrates Court Practice Direction, that is, Practice Direction No. 5 of 2020 which repealed 'Practice Direction No. 3 Appearance of persons in custody -use of video link facilities', issued by the Chief Magistrate and dated 7 April 2020, to the extent that such Practice Direction was applicable. Exhibited and marked GJFl is a copy of Practice Directions No. 5 of 2020 and Practice Direction 3 of 2020. 19. The applicant was not taken before the proposed Fourth Respondent by the watch house officer responsible for the applicant's custody on 20 August 2020 contrary to Order 10.4.2 of the Queensland Police Operational Procedures Manual, issued by the Commissioner of Police pursuant to the provisions of section 4.9 of the Police Service Administration Act 1990, so that the applicant could be dealt with according to law. Exhibited and marked GJF2 is a copy of Chapter 10 of the Queensland Police Operational Procedures Manual. 20. The applicant was not taken before the proposed Fourth Respondent by a prescribed police officer at the watch house on 20 August 2020 contrary to section 394(2)(d) of the Police Powers and Responsibilities Act 2000 (the PPRA). 21. The officer in charge at the relevant time or the watch house manager did not ensure compliance with the warrant issued under section 12 of the Extradition Act 1988 pursuant to which the applicant had been arrested and delivered into the custody of the officer in charge of the Brisbane Watch house on 20 August 2020 contrary to section 395 of the PPRA. 22. The applicant was not taken before the proposed Fourth Respondent on 20 August 2020 contrary to section 393 of the PPRA by the relevant police officer contrary to section 393(l)(d) of the PPRA, to the extent that it was applicable. 23. The first respondent did not have the authority to admit and detain the applicant in accordance with section 9 of the Corrective Services Act 2006 (the CSA). 24. The first respondent relies upon the Form 44 Verdict and Judgment Record issued in respect to the applicant on 20 August 2020, 3 September 2020, 11 September 2020, 18 September 2020, 21 September 2020, 22 September 2020, 25 September 2020 and 30 October 2020. The only proper and lawful authority which may have been relied upon by the Respondents pursuant to section 9 of the CSA was a warrant for the detention of the applicant as required by section 9(1)(c) of the CSA. 25. The use of the Form 44 Verdict and Judgment Record on each occasion was irregular and not authorised by Rule 61 of the Criminal Practice Rules as there had not been a verdict or judgment given in respect to the applicant, and the applicant was required to be before a magistrate acting in his or her personal capacity and not acting as a court or as an officer of a Magistrates Court. 26. Pursuant to section 69(1) of the CSA the first respondent was required to produce the applicant to the hearings taking place on 3 September 2020, 11 September 2020, 18 September 2020 and 30 October 2020. The applicant was not produced. As a result the detention of him by the first respondent from 3 September 2020 was not authorised. 27. No remand was made during the hearing before [the Primary Magistrate] on the 30th October 2020. 28. Insofar as it may have been noted by [the Primary Magistrate] subsequent to the hearing on 30th October 2020 that the applicant was remanded in custody this act of notation: a. did not amount to a lawful authority for remand of the Applicant; b. was performed in a manner which denied procedural fairness to the Applicant; c. did not form a lawful basis for the issue of the Form 44 dated 30 October 2020. 29. The form 44 of 30 October 2020 was issued by the Magistrates Court of Queensland without affording procedural fairness to the Applicant including to make submissions that it ought not be created and issued by the Magistrates Court of Queensland in the circumstances. 30. It is impermissible to undertake proceedings under the Extradition Act 1988 in the sessions of, in association with all the usual manifestations and features of, or resort to the seal of, the Magistrates Court of Queensland. 142 On 10 December 2020, Crow J of the Supreme Court of Queensland determined applications to set aside subpoenas issued at the request of Mr Pauga and an application by Mr Pauga for production of documents. 143 On 11 December 2020, written submissions were filed for Mr Pauga in the extradition proceedings. They began with a section headed 'Jurisdiction'. It set out short submissions to the effect that the jurisdiction being exercised in the extradition proceedings was administrative. It then had a section headed 'Jurisdictional facts or prerequisites'. It described the Four Pre-Conditions and set out reasons why they were said not to be met. As to whether Mr Pauga had been given reasonable time to prepare it submitted that a reasonable time to collate and present extradition objections was 24 to 36 months. There was very little in the written submissions to explain why that might be so. 144 The submissions ended with the following conclusion: At this stage Mr Pauga submits that this matter ought to be allocated to a magistrate who becomes the magistrate dealing with and responsible for the s19 process. That allocation ought be performed in a considered fashion rather than appearance in a rostered list. A section 19 application ought be taken out of the Court and any manifestation or ability to conflate the persona designate [sic] with the Court. Procedural processes ought be clarified. There ought be recognition at this stage that the reasonable time to prepare for the hearing is in the order of years not weeks. 145 At the mention hearing before the Primary Magistrate on that date, Mr Pauga appeared by video link. Counsel for Samoa proposed that Mr Pauga be directed to file a report by a date in January as to the progress of preparations to date and a plan as to what is still to be done. 146 Mr Mancini did not oppose the course of an adjournment for the proposed purpose of providing a report. He also asked for the matter to be allocated to a particular magistrate. In the result, the matter was relisted for 12 February 2021 for mention. A direction was made requiring Mr Pauga to file and serve by 4.00 pm on 5 February 2021 a written plan as to the evidence, reports or witnesses to be relied upon and a timetable as to when they will be available. Mr Pauga was remanded in custody with a direction that he appear by video on 12 February 2021. 147 Written submissions were filed in the Supreme Court proceedings on 15 December 2020. 148 The submissions for Mr Pauga began by raising a version of the course of the extradition proceedings up until 11 December 2020 and the course of the proceedings in the Supreme Court. It then advanced the following propositions: (1) 'Relief by way of habeas corpus is available to the applicant. He asserts that his detention from 20 August 2020 has been unlawful'. (2) There was a failure to comply with the legislative requirements at the hearing on 20 August 2020. (3) The Chief Executive had not given any sufficient explanation or identified sufficiently the reason for Mr Pauga's detention. (4) The Extradition Act does not deprive the Supreme Court of its jurisdiction to entertain relief in the nature of habeas corpus. (5) The Extradition Act required that Mr Pauga had to be brought before a magistrate as soon as reasonably practicable after his arrest. (6) Mr Pauga was not before Acting Magistrate Byrne when the proceedings were called on at 1.00 pm on 20 August 2020. (7) Acting Magistrate Byrne did not pronounce any order of remand. (8) Nothing occurred during the four day period that Mr Pauga was in the Brisbane Watch House to have him brought before a magistrate. (9) The jurisdiction of the magistrate can only be enlivened if the person arrested is brought before the magistrate. (10) Insofar as there was any order for remand by Acting Magistrate Byrne (which is disputed) it was without jurisdiction or power. (11) Mr Pauga's detention was unlawful under the Human Rights Act. (12) 'The precondition to the conduct of the section 19 extradition proceedings required compliance with section 15'. (13) The precondition to remand on 20 August 2020 and any further remand thereafter was compliance with the brought before requirement in s 15. (14) At the point of any order for remand on 20 August 2020 and 'thereafter to date' the detention of Mr Pauga has been unlawful, in breach of the Extradition Act and not regular or sufficient for the purposes of Mr Pauga's continuing detention at the Brisbane Watch House or at the Corrective Centre. (15) Nothing that has occurred since can and has made his detention lawful nor could it. (16) Anything done by Acting Magistrate Byrne as a persona designata was not of any effect and it was as if it were never done because an acting magistrate was not empowered to carry out any power, duty or function under the Extradition Act. (17) 'Each and every Form 44 that issued are not those of any Magistrate. The only order of remand that could give effect to the remand of [Mr Pauga] would be an order made by a Magistrate in their capacity as a persona designata'. (18) Each of the Form 44s were forms of the Magistrates Court of Queensland and were forms prescribed in its criminal jurisdiction and the forms may not be used in the context of a magistrate acting as a persona designata under the Extradition Act. (19) A form of warrant for the remand of Mr Pauga was required by the Extradition Act. (20) As Mr Pauga was not transferred to court on 3, 11 and 18 September 2020, any order for remand was not valid because it requires the presence of the person on remand in order for there to be further remand. (21) 'The operation of the statutory regime for audio visual appearance by an accused person under the relevant provisions of the Justices Act is not a substitute or alternative for the ordinary requirements of remand under the [Extradition Act]'. (22) 'Any order of the Magistrates Court of Queensland purporting to be based on the Extradition Act is a nullity'. 149 The hearing in the Supreme Court of the amended application for relief by way of habeas corpus proceeded on 16 and 17 December 2020. The decision of Crow J on the application was reserved. 150 On 18 December 2020, Crow J delivered oral reasons dismissing the application. In those reasons, his Honour: (1) found that it was on 21 September 2020 that Mr Pauga was for the first time brought before a magistrate in accordance with s 15(1); (2) there was ample evidence to explain what had occurred between 20 August 2020 when Mr Pauga was arrested and 21 September 2020; (3) what had occurred was an unfortunate consequence of the COVID-19 pandemic; (4) Mr Pauga could not be brought to Court until 21 September 2020; (5) a claim that a remand by use of a Form 44 was not a proper remand was rejected as a basis for claiming that Mr Pauga had not been lawfully detained on the basis that it contained all the necessary elements to constitute a warrant for the purposes of s 6(1) of the Corrective Services Act 2006 (Qld); (6) a claim based upon the Human Rights Act that Mr Pauga's detention was unlawful had a fundamental problem because Mr Pauga was being detained not on the authority of a public entity of the State of Queensland but by the action of a magistrate as a persona designata acting in an administrative function under the Extradition Act of the Commonwealth; and (7) concluded, based on the above findings of fact and law (and other findings) that the amended application for the issue of a writ of habeas corpus or for an order for release of Mr Pauga should be dismissed. 151 It may be noted that the reasons of Crow J rest upon findings based upon evidence before Crow J concerning the difficulties that arose as a result of 'lock downs' and other steps being taken to limit movements, including the movement of persons in custody, by reason of the COVID pandemic. 152 On 5 January 2021, an application was brought by Mr Pauga to recall and reopen the decision of Crow J. 153 On 12 February 2021, the extradition proceedings were mentioned before the Primary Magistrate. Although a request for Mr Pauga to appear in person had been granted, Mr Pauga had not been brought up when the mention hearing commenced. At the hearing, Mr Mancini handed up a document that he described as a roadmap to the proceedings. He said that it complied with the earlier direction 'to the extent that we can comply'. It was a five page list of 61 items. The Primary Magistrate expressed the view that it did not comply because what was required was a written plan. That view was plainly correct when regard is had to the terms of the direction and the content of the five page list. 154 By reason of the significance that was sought to be given by Mr Mancini to the roadmap (both at the hearing and subsequently), I set out the whole of its contents: 1. Eligibility for Extradition - Section 19 EA Proceedings 2. Effect of Habeas Corpus Proceedings and appeals thereof 3. Identification of 'the Magistrate' for the purpose of s19 Proceedings 4. Consideration of Recusal 5. Section 46B Discretion to be seized 6. Integrity of the file 7. Application for Legal Aid 8. Legal Aid Samoa 9. Legal Aid Queensland 10. Special Circumstances Scheme 11. Due Process 12. Identification by the Magistrate of the procedures to be adopted and evidential rules and procedures 13. Operation of Procedure Compliant with Privacy Act 14. Jurisdictional Questions 15. Operation of Section 19 16. Outline Investigations to be Undertaken by respondent 17. Disclosure 18. Subpoenas 19. Freedom of Information Processes 20. Mutual Assistance in Criminal Matters 21. Consensual Investigations 22. Deposition/Evidential Hearings 23. Savali Campaign 24. Australian Aid to Samoan Justice 25. Information 26. Police Investigation of the Criminal Defamation Matter 27. Relationship between informant and witnesses 28. Process by which Criminal Defamation was abandoned 29. Credibility of Potential Prosecution Witness 30. Proces[s] by which charges were investigated against each defendant 31. Current Process in Samoa 32. Circumstances of Guilty Plea by Co-accused 33. Circumstances in which the warrant has issued 34. Executive influence on The Samoan Judicial System 35. Constitution and makeup of Samoan Judiciary 36. Prime Minister's Abuse of Power in Respect of the Respondent 37. Samoan Concepts of Race and relationship between informant's clan and Pauga clan and Samoan concepts of punishment 38. Palagi 39. Feagaiga Institution 40. Law in Samoa 41. Criminal Law, Procedure and Evidence 42. Extradition Law 43. Prison Law 44. Rule of Law 45. Human Rights Law 46. Background and correspondence in respect of extradition requests for Pauga 47. Australia-Samoa International Law Obligations and Arrangements 48. Samoan Political, Sociological Relationships and History 49. Investigate Magistrates Court file 50. List of Potential Witnesses and related Issues 51. NZ Professor 52. Samoan Legal Practitioner(s) 53. Honourable Miheal Kirby (sic) 54. Anthropologist 55. Tuilaepa Aiono Sailele Malielegaoi 56. Extradition Objections 57. DFAT Officers 58. Samoan former DPP 59. Prime Minister 60. Examination of Authenticity 61. Hearing on Extradition Objections and Submissions 155 No lawyer acting reasonably could conceive of such a document as being a document of the kind that might comply with the direction made by the Primary Magistrate on 11 December 2020 (and acceded to by Mr Mancini). 156 Mr Mancini also again raised the question of 'which magistrate was going to be seized of the matter'. The Primary Magistrate indicated that she thought that she would be conducting the entire matter because 'it makes sense that it stays with one person'. Mr Mancini then foreshadowed an application for recusal. He was then invited to make the recusal application. He declined to do so and said that it would need to be prepared. In the absence of a recusal application, the Primary Magistrate indicated that she would proceed given the nature of the hearing which concerned directions. Her Honour sought an explanation as to why the earlier direction had not been complied with. 157 Mr Mancini then said that he would wait until his client was present. He maintained that the matter being discussed was a matter of substance that should not proceed in the absence of Mr Pauga. The Primary Magistrate then stood the matter down. When the matter resumed Mr Pauga was brought in. Mr Mancini began by again asking who was going to be seized of the matter, which led to further exchanges about whether that position needed to be made clear and whether there was an application to recuse for bias. Mr Mancini indicated that he would file the application. The Primary Magistrate indicated that if an application for recusal was not made as to why she could not deal with the mention hearing then her Honour would proceed. 158 Mr Mancini then began an explanation as to why he submitted that previous directions were not valid because of jurisdictional points including whether Mr Pauga had been 'brought before' a magistrate after his arrest. In effect, he sought to reargue points that had been determined by Crow J. After being asked to focus his submissions on the directions to be made, he submitted in essence that they had done as much as they could and where there were other things to be done they were set out in the 'roadmap'. Those submissions gave to the five page document that had been handed up a character which it plainly did not have. It was no more than a rather obscurely expressed list of topics with no indication of their substantive relevance, what they involved or when they might be done. Ultimately, Mr Mancini submitted that the only order that should be made was to adjourn the matter until after the outcome of the proceedings in the Supreme Court to reopen the decision of Crow J. 159 The Primary Magistrate proceeded to determine that the document described by Mr Mancini as a roadmap that had been handed up during the hearing did not comply with the previous directions made on 10 December 2021. Directions were made requiring an affidavit setting out all the steps that had been taken in furtherance of the directions made in December 2020 and any explanation as to why the directions had not been complied with. Also, Mr Pauga was directed to file and serve an affidavit as to a written plan of the evidence and reports of any witnesses he intended to call and a timetable as to when reports and statements from any such witnesses will be available. The affidavits were directed to be filed before 4.00 pm on 26 February 2021. The matter was adjourned to 12 March 2021. 160 Leave was also given, at the request of Mr Mancini, to inspect the court file. Mr Mancini sought liberty to apply to deal with any matter arising from the Supreme Court proceedings. A direction was made allowing for liberty to apply. The Primary Magistrate also indicated that any application for recusal would be heard on 12 March 2021 and that the papers for any such application should also be filed by 26 February 2021. Mr Pauga was remanded in custody until 12 March 2021. 161 Then on the following Monday, 15 February 2021, Mr Finlayson sent an email to a registrar in the Magistrates Court. It said: I refer to the liberty to apply granted by the Court on 12 February 2021 Mr Pauga seeks that the matter be called on pursuant to that liberty to apply and will seek orders that the orders of [the Primary Magistrate] in respect of the filing of any affidavits be stayed pending the objection to jurisdiction raised by Mr Pauga in written submissions and again by his counsel on 12 February 2021 and the question of the validity of the orders made on 11 December 2020 being listed for subsequent argument on notice, heard and determined. We request to have this matter brought on as soon as possible on 48 hours' notice (not being on 19 February 2021) for hearing by telephone for the above purpose. 162 The application pursuant to the liberty to apply came before the Primary Magistrate on 23 February 2021. Her Honour dismissed the application for a stay of the direction requiring the filing of affidavits and amended the previous direction to require that any exercise of the liberty to apply be on 7 days' notice and be in the form of a written application. 163 In the meantime, the application to recall and reopen proceedings before Crow J was heard and dismissed by his Honour on 19 February 2021. The decisions by Crow J have not been the subject of any appeal. 164 On 11 March 2021, a solicitor from the Commonwealth Attorney-General's Department acting for Samoa sent an email to Mr Finlayson which set out the history of directions made in the extradition proceedings and then said: At present, this Department has no substantive material before it as to what steps your client has, or intends to take, to prepare submissions and material in support of extradition objections at the section 19 hearing. Based on your latest correspondence, we also understand that your client does not intend to provide further information on these matters. In the absence of any evidence or substantive material from your client since 10 December 2021 on preparation of extradition objections, and noting that your client remains in custody, we consider currently that the appropriate course of action is to request that the matter be listed for a surrender eligibility hearing before her Honour … at her earliest convenience. We intend to do so at the directions hearing tomorrow 12 March 2021. Should your client wish to provide further information, or his proposed orders for the direction hearing tomorrow, we would happy to consider and advise whether this alters our proposed approach at the case management hearing. 165 The reference to a 'surrender eligibility hearing' reflects the terminology of s 19. It provides that where the matters listed in s 19(1) pertain (which include an application for proceedings to be conducted under the section and the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for such proceedings), the magistrate 'shall conduct proceedings to determine whether the person is eligible for surrender'. 166 The email from the Department met with the following response from Mr Finlayson: Dear Ms Hemingway, In the Magistrates Court of Queensland at Brisbane MAG-00152606/20(6) BRIS-MAG-00025579/20 Thank you for your email of earlier today. We refer to your invitation in the last paragraph for our client to provide further information in respect of preparation of materials in support of our client's extradition objections. Our client has always been disposed to provide such further information and indeed sought to do so with the provision of the Roadmap, the attendance at the hearing on 12th February 2021, to speak to that document and provide such further information and to do so since then. We welcome your invitation to do so and will provide that information to you in further correspondence. Our endeavours to do so at the hearings thus far has been foreclosed by [the Primary Magistrate]. However, we take the view that does not prevent us doing so outside of the court processes. As you would appreciate from the Responding Submissions dated 11 December 2020, the issues, investigations and contemplated materials are extensive and complex. We have been working on them. We consider that we can support the foreshadowed objections with evidence and we gave a broad estimate of the timeframe for that. The work progressing this is ongoing by ourselves, our client and third parties. Of course, these are not the only issues which we have identified for the purpose of the Extradition Act proceedings. It was for those purposes that we have been making applications to the Court and [the Primary Magistrate] including the Application of 29 October 2020, the Application for recusal on 12 February 2021 and applications to be heard on the matters raised in our filed submissions. None of these Applications have been heard and determined. We respectfully suggest that it is not open to [the Primary Magistrate] to prevent our client from making such applications, and being fully heard. We point out that, apart from the orders of the court, [the Primary Magistrate] has not done anything more than list the matter for mention from time to time, not allocated any time for hearing of any Application or submissions, not asked the parries in the usual way as to what time would be required to hear such applications and submissions, and has proceeded in a peremptory fashion in a highly congested Court list without allowing us to articulate our objections to the making of the orders which have been made. Such issues, and the dictates of procedural fairness will not go away and need to be heard and determined. We are not abandoning any of the matters outlined in our filed submissions or Roadmap. Accordingly, we regard your invitation as a welcome method of resolving the impasse presented at Court. We suggest that the matter be adjourned on the joint request of the parties for a period of ten weeks for us to provide the further information in response to your invitation. We wish to raise some matters now as they are aspects of the issues which we have already identified as follows: 1. The oral application made on 25 September 2020 is is [sic] not in accordance with the Extradition Act as it was not made to the Magistrate who is to conduct the section 19 proceedings. This is a matter of statutory interpretation and gives rise to a jurisdictional issue which needs to be heard and determined. 2. The orders made on 25 September 2020 were not valid. This is a matter of statutory interpretation and gives rise to a jurisdictional issue which needs to be heard and determined. 3. The same applies in respect of the orders made on 30 October 2020. 4. The same applies in respect of the orders made on 11 December 2020. 5. The same applies in respect of the orders made on 12 February 2021. 6. You refer to the Roadmap and the 61 topics identified therein. We would like to explain that document and the topics to the Court for the purposes of the proceedings. We should not be precluded from doing so. We would hope that [the Primary Magistrate] would enable us to do so in due course. If she continues to preclude our client it will be a denial of procedural fairness and amount to jurisdictional error. 7. The proposed proceedings by way of judicial review will be brought in the Federal Court of Australia and will seek relief including by way of writs of habeas corpus, prohibition, certiorari, injunction and quo warranto, and will give rise to constitutional issues including Chapter III considerations, the validity of the Arrangement under section 46 of the Extradition Act relied upon by Samoa. The proposed respondents will include the Magistrates Court of Queensland, Magistrates Previtera, Merrin, Gett and Gilbert, Acting Magistrate Byrne and the Chief Executive of Queensland Corrective Services. We are progressing preparation of those proceedings and they will be commenced as soon as practicable. 8. In your email you indicate that the proceedings be listed for a surrender eligibility hearing. We note that you have not given notice in accordance with the orders of the Court made on 23 February 2021. We will oppose such application, and seek a dedicated hearing in respect of any such application and any other applications and submissions as may be appropriate. We respectfully suggest that it is not in the interests of the parties and the interests of justice that there be continued contested applications when there is work to be done on the matters raised in our client's Responding Submissions and the Roadmap and to be addressed in response to your invitation for further information. Let's review the situation after we provide that further information. 167 The extradition matter next came before the Primary Magistrate on 12 March 2021. The proceedings commenced with her Honour noting that no materials had been filed in respect of the proposed recusal application. In response to her Honour's inquiry as to whether Mr Pauga was proceeding with the recusal application, Mr Mancini responded 'Yes, your Honour. But not today because we're not ready'. 168 Mr Mancini began by saying that he needed transcripts of the hearings on 11 December 2020 and 12 February 2021 which he said had been sought on 13 February 2021 (a Saturday) together with a fee waiver request. There was then an exchange about whether the recusal application should proceed because it had been listed. Mr Mancini maintained that he was not ready to proceed. The Primary Magistrate then proposed that Samoa's application for extradition be set down. 169 Mr Mancini maintained his submission that there was a fundamental question as to whether jurisdiction had been engaged. He maintained that those questions went to whether there had been any jurisdiction or power to make the directions that had been made and that question, he submitted, needed to be 'identified' and he sought to be heard about 'those questions'. 170 The Primary Magistrate proceeded to seek submissions from Mr Mancini about the listing of hearing dates for the matter on the basis that there was no application and no material before her Honour about the jurisdictional matters. In doing so, her Honour made clear: I propose setting hearing dates today. I'll set another date for the making of any preliminary applications but I'm setting a hearing. So I would like you to address me on … when you'll be ready for a hearing. 171 Her Honour's statement resulted in the following exchange with Mr Mancini (bearing in mind there had already been two exchanges in which Mr Mancini made clear that he did not wish to proceed with any application for recusal): MR MANCINI: For what hearing? BENCH: The extradition hearing. MR MANCINI: I don't understand what that is, your Honour. BENCH: Well, I can't give you legal advice, Mr Mancini. MR MANCINI: No, no, no, your Honour. BENCH: It's not my role to assist you. MR MANCINI: [indistinct] telling me your listing and has a function of how to list a hearing of an application. BENCH: It's the extradition application … The application that Samoa has brought. MR MANCINI: Which application is that, your Honour? BENCH: Mr Mancini, I cannot give you legal advice. It's not - - - MR MANCINI: I'm not asking for legal advice. BENCH: It is not my role, all right. MR MANCINI: Your Honour, I'm asking - - - BENCH: It is not my role. MR MANCINI: I'm asking your Honour, politely, for your Honour to identify the application. BENCH: It's the application filed by Samoa for your client to be extradited to Samoa. … MR MANCINI: Yes. Precisely. Precisely 172 At that point counsel for Samoa asked if he might be heard and said 'The Section 19 application made by Samoa'. 173 Mr Mancini objected to the interruption. Then the Primary Magistrate said 'It's a Section 19 application for Mr Pauga's extradition to Samoa'. It prompted the following further exchange. BENCH: It cannot be any clearer than that in this court's view. But, look, I can't assist you to understand it any more than that. It is not my role to give advice MR MANCINI: No, no. It's not, your Honour. MR MANCINI: No, but it's your Honour's role to identify what is the power your Honour's exercised. And the basis of - - - BENCH: It's the power pursuant to Section 19. That's how we're proceeding. MR MANCINI: Well-yes, your Honour. BENCH: All right. MR MANCINI: Put it - - - BENCH: The ruling has been given on that already before her Honour Magistrate Merrin and I propose to set hearing dates today with any outstanding applications to be listed before another date. I'm proposing hearing dates of the 10ᵗʰ and 11ᵗʰ of June are - - - MR MANCINI: Of - of what, your Honour? BENCH: 10ᵗʰ and 11ᵗʰ of June. MR MANCINI: Of? BENCH: Of the application under Section 19. MR MANCINI: Two days is only set aside. 174 Mr Mancini then said that he was not available on those dates. He was then asked to provide two days in June when he was available. Counsel for Samoa was then asked as to his availability and how long the hearing would take. It led to the following submission: I'm going to make two submissions. Firstly, with regards to jurisdiction, the jurisdiction that your Honour has to determine a Section 19 application is set out in Section 19 itself. Section 19 subsection (l) contains four elements which Federal Courts, on review, often refer to as the jurisdictional requirements. And the usual practice is that they're heard at the same time. So they're - that's the first hurdle that Samoa has to overcome to get your Honour to conduct the hearing and then there's more substantive elements. And that's already in my written submissions. (emphasis added) 175 The emphasised words assume significance because, ultimately, the July hearing proceeded on the basis that the question whether the Four Pre-Conditions had been met and the Section 19 Proceedings were considered at a single hearing. Mr Mancini raised no objection to that course. At the July Hearing and in this Court he has claimed that to proceed in that way was not permitted by the Extradition Act. 176 At that point the Primary Magistrate intervened to draw the attention of Mr Mancini to what was being said on the basis that it was answering what had been raised earlier. Mr Mancini indicated that he was listening. 177 Counsel for Samoa then continued: The second submission I have regarding the length of the hearing goes to the issues that are to be determined. Currently, they are matters of law that rise and fall upon the extradition documents that have been filed by Samoa. The more extensive issues of questions of fact about extradition [objections] were, as your Honour has identified, the subject of the orders that Mr Pauga has repeatedly­ not only repeatedly failed to comply with but has repeatedly failed to comply with further orders of your Honour asking him why he hasn't complied. And Samoa submits that this hearing will take two days on the very clear understanding - and I'm putting this very clearly on the record - that there is to be no argument about extradition objections because today's an opportunity to put that material in. And the time has come to proceed with that hearing. So in the absence of any of that, it's essentially legal argument only. In an ordinary matter, I would say one day. But as I said before, I accept for a matter like this that two days is appropriate. 178 After a further exchange, the Primary Magistrate indicated that the matter would be adjourned for hearing for two days on 8 and 9 July 2021 and Samoa was directed to file written submissions in reply by 10 June 2021. 179 Mr Mancini then objected to the making of directions and to the course that had been followed. Reference was made to the approach that had been proposed in correspondence prior to the hearing. It was said that 'we're going to give the information'. He stated that there was no power under the Extradition Act for a magistrate to make any order or directions of the kind that had been made. He then said that they were working on a review application. He then made the following submission: But the review is not to do with those processes because we might at least, to exhaust our avenues or properly, fairly and reasonably, putting those matters to you so that you can consider them before we embark upon the expense and the burden of taking reviews in respect of those orders. I did say on the last occasion, your Honour, that we are advancing Federal Court proceedings and the detail of those Federal Court proceedings is actually in our email. And that's being worked on. But we're not going to rush into it. We don't have material, evidentiary material, and I've identified that for your Honour, the transcripts. We don't - and we're working on the issues around that. Those proceedings are serious proceedings and are concerned with jurisdiction of your Honour, the functions of your Honour as a judicial officer, the functions of the Magistrates Court of Queensland and its - to use the neutral term, interference in the process under the Extradition Act and its involvement in the process of the Extradition Act. We're concerned with issues around chapter 3 and issues around prohibition and recusal of your Honour. So we can make a recusal application here and we will do so. But we made it once before, your Honour. Your Honour does - would recall that of the 12ᵗʰ of February. And your Honour dealt with it by dismissing it without anything more. 180 There was then a further exchange about whether there had been a recusal application on 12 February 2021, after which Mr Mancini returned to matters of jurisdiction with the following submission: So your Honour, in the Extradition Act, I'd like to take your Honour to it for the purposes of these orders and understanding that nothing has been advanced by Mr McKechnie in support of any conception that your Honour has such a power. Nothing has been identified as arising in the Extradition Act in - as identifying such a power and nor has your Honour identified such a power. So I'd like to make my submissions about that question in - in the face of the failure to [indistinct] the strategic forensic failure of my learned friend to identify such a power. And for your Honour to understand that until your Honour identifies a power rather than an amorphous statement based on some submissions of Mr McKechnie, which we haven't had an opportunity to make submissions about, then we will know whether your Honour can or should exercise that power and what would be the terms of it. Because the first question is: should you exercise a power, is it a power in existence and what is the discretion that arises in respect of that power. Now, before your Honour made any orders, I would have wanted to have been heard. We still haven't been heard on any of those things and I have submissions to make. And your Honour has studiously precluded me from making submissions about what we'd like to say about these questions, about these directions, about these affidavits and about the information. 181 Following further exchanges between Mr Mancini and the Primary Magistrate concerning whether Mr Mancini was being given an opportunity to make submissions, Mr Mancini then made lengthy submissions. They included the following: (1) at no stage had time been allocated to hear submissions that go to the question of power, jurisdiction or statutory interpretation; (2) there was unfairness in requiring Mr Mancini to develop those submissions 'on the fly' at a mention hearing; (3) an adjournment would be sought after the submissions had been made for further time to make more submissions; (4) the written submissions that had been filed (on 11 December 2020) were a 'very complex document in respect of the submissions under these extradition objections'; (5) the directions made for a plan as to the filing of evidence and reports were made 'without hearing submissions about that'; (6) as to the directions 'we said we're not required to and we don't want to for various reasons which were directorially dismissed without any regard to anything'; (7) as to the five page roadmap document that was then provided, Mr Mancini said he wanted to speak to that document so as to provide a better understanding of what they were trying to do; (8) a repeated submission to the effect that the Primary Magistrate had no power under the Extradition Act to make directions about filing affidavits; and (9) the proceeding being conducted was 'as a judicial officer in a court' with everything being done in orders and directions by 'some functionary of the Registry on its orders - and not on your Honour's orders' all of which were matters to which objection was taken. 182 Then there was the following exchange: BENCH: What's your authority that says the Magistrates Court is not a court? MR MANCINI: Your Honour-no, no, no. BENCH: That's what you're saying. MR MANCINI: An extradition - precisely the problem. Extradition proceedings are not in the court and your Honour has been doing as a court … every single thing has been as a Magistrate, judicial officer. BENCH: And what's your authority that says that that's not the procedure? MR MANCINI: Well - - BENCH: What's your authority? MR MANCINI: I'll give it to your Honour. It's all the authorities with which Extradition Act [applications] by a Magistrate are heard and determined. It's by persona designate … in a personal capacity. Section 46B of the Extradition Act makes that plain. Your Honour hasn't even had regard to that. Your Honour hasn't even had regard to the submission I want to make about all that. Everything your Honour has done and every other Magistrate has done leading up to today, including today, comes from a judicial officer garbed in this fashion exercising a judicial function representing to the world at large that you're a court and a judicial officer. And then BENCH: But who am I really? MR MANCINI: You're just Tina Previtera, Magistrate assigned by an arrangement between the Commonwealth and Queensland to process extradition proceedings. Yes. And it's how you have to conduct the proceeding. Your Honour hasn't even bothered to listen to us about that. Your Honour just goes along, processes it just like you do. Processes it just like a court. Every time we come here, your Honour, we're in a court. We're not - has your Honour ever processed, for example, a search warrant for the Commonwealth? Your Honour … does it as a persona designata, not in a court … open to the public in a hearing, garbed in the fashion that your Honour is garbed, with the coat of arms, finalised by way of court seals and registries, signatures, etcetera etcetera. Every single one of these things in the Brisbane Magistrates Court has failed. … BENCH: So is your argument that there can never be extradition proceedings brought in any court? MR MANCINI: That's right. It - - - MR FINLAYSON: Yes. MR MANCINI: With a Magistrate. Yes, that's right. Can't be done. Sorry, that's what your Honour is doing. That's what Mr McKechnie keeps asking you to do. Court do this, court do that. Relies upon, remand orders, etcetera etcetera. I'll take you through it, your Honour, but give me the chance and the opportunity to do so because if your Honour wants to make sure that you've got the power to do it, there will not be [indistinct] make sure you have. And we are putting this seriously to your Honour because it's a serious issue. Because if your Honour hasn't got the power, whatever your Honour ends up doing is going to be a failure. And if your Honour hasn't got the power, then stop it immediately. Every single order is not an order of your Honour. Every single order is not an order of Tina Previtera, Magistrate in Queensland. Every single order is your Honour garbed as a Magistrate judicial officer in the court, in public. Then finalised by way of a sealed document not of your Honour. Your Honour hasn't signed a single order in this case. Not one single order has been made by you. We've ended up --- BENCH: Who's been making them? MR MANCINI: Who's been publishing them? BENCH: No. Who's been making them? MR MANCINI: The Magistrates Court of Queensland. Have a look at the file, your Honour. They're there. BENCH: And in what guise do they appear there today? … MR MANCINI: Yes. And your Honour, everything- everything that happens in this - in this place is as if it's a court. Everything to do with Mr Pauga is done not by your Honour in remands and so forth in bringing him here, it's done by the Magistrates Court of Queensland in Brisbane. Tipstaffs tell people not to do things because they're in the court, not to take photos. It's none of their business because it's not a court. … the only business it is is your Honour, without regard, without the coat of arms, then determining how this whole thing is going to go. 183 There were more submissions along the same lines. Then, having allowed considerable latitude, the Primary Magistrate interrupted to refer Mr Mancini to the fact that leave had been given to apply on seven days' notice in writing in the form of a written application and supporting affidavit material but no such application had been brought on behalf of Mr Pauga. It met with the following response from Mr Mancini: So your Honour, about identified some of the matters that should be considered. Whether your Honour wants an application or not in my submission it does not matter. Your Honour has to decide these questions. We can do that, let's do it. Let's do it with a proper hearing on these issues. Because your Honour, these are threshold issues. They got to the heart of the proceedings, the heart of the process, the validity of any orders and whether any of this process to date has been valid and can continue. So your Honour, these are very important questions. These are very important questions of which there are legal issues with outlines. They are before the court. And your Honour, we have been working…in that context and there are a number of matters. And we'd like to explain all of that. 184 Much more was submitted as to the points that Mr Mancini said were points that should be determined on a preliminary basis. Counsel for Samoa referred to authority to support the approach whereby power had been entrusted to magistrates to act as persona designata and that those authorities did not say anything to the effect that the authority could not be exercised by a magistrate in robes sitting in a court room. 185 Eventually, matters returned to the position that hearing dates were to be set for 8 and 9 July 2021 and in the meantime there was liberty to apply. 186 Mr Mancini then submitted that the liberty that had been given previously could only have been exercised in respect of the orders then made. The Primary Magistrate then made clear that the liberty was a general liberty. Mr Mancini then inquired as to the forms that were to be used which appeared to be an attempt to expose his submission that the procedures of the Magistrates Court of Queensland did not apply. 187 After further exchanges directions were made in the terms that had been indicated with the clear statement that the hearing on the extradition application would take place on 8 and 9 July 2021. There was a direction that Samoa file and serve any material upon which it relies for the hearing before 4.00 pm on 10 June 2021 and a direction that Mr Pauga file and serve any material on which he relies for the hearing before 4.00 pm on 24 June 2021. Mr Pauga was remanded in custody and an order was made that he be produced from custody for the hearing on 8 July 2021. 188 I have set out the events of that hearing in some detail because they bear upon what subsequently unfolded and the complaints made concerning whether procedural fairness was afforded at the hearing that took place at the July Hearing which was held on 8 and 9 July 2021. Those events cannot be separated from the context of what occurred at the time that the dates for the hearing for the purposes of the s 19 application were set down. What is clear is that as at 12 March 2021, when the hearing dates were set down, Mr Pauga was afforded liberty to apply to raise the jurisdictional points that had been outlined and he was told by the Primary Magistrate that if an application was made then a hearing would be set down for that purpose before the hearing on 8 and 9 July. He was also threatening to commence proceedings in this Court to advance his claims that the Primary Magistrate was proceeding by making directions and orders in a manner that was not permitted by the Extradition Act. 189 On 10 June 2021, Samoa filed submissions in reply in the extradition proceedings before the Primary Magistrate. 190 On 29 June 2021, by reason of quarantine and lockdown measures across Australia relating to COVID-19, those acting for Samoa proposed an online hearing in the following terms: As the matter does not require evidence to be given, but will proceed by way of submissions on the extradition request, we consider that it would be well-suited to an online hearing. 191 Mr Finlayson responded in the following terms: We do not join in the suggestion that the hearing next week proceed by way of online hearing. That is unfair to our client. Our client is required to be brought before the Court pursuant to the order of remand and the Form 44 issued by the Court. Both counsel and I were planning to be in attendance. Furthermore, family members, members of the Samoan community are to be in attendance. Those persons include potential witnesses. There is an international witness who has also been arranged. Furthermore, the hearing is to concern all matters raised. In that respect we refer to the submissions on the last occasion on the jurisdiction question. Furthermore, we say that the preconditions to the Court proceeding to determine eligibility for surrender have not been satisfied. Given the developing COVID-19 exigencies we will need to seek to issue summonses for their attendances pursuant to regulations 4 and 5 of the Extradition Regulations. Summonses would be for personal attendance and production of materials. Such summonses require personal attendances. Furthermore, we confirm we are issuing proceedings in the Federal Court of Australia for habeas corpus, prohibition and certiorari in respect of the entirety of the steps taken by each magistrate and the Brisbane Magistrates Court, and in particular in respect of the conduce of the proceedings by Magistrate Previtera. Those proceedings will seek removal of the proceedings to the Federal Court of Australia for quashing. The developing and ongoing political crisis in Samoa has interfered with our client's preparation. Indeed, it is a matter of wonderment and concern that you have any legitimate instructions to proceed in the manner you suggest and in light of the issues raised. … These matters cannot proceed by way of on-line hearing as suggested. 192 Having regard to aspects of the propositions raised by Mr Pauga, the reference to steps being taken to arrange for witnesses may be especially noted. The letter indicated that Mr Pauga was preparing to proceed with the hearing and was proposing to seek the issue of summonses for personal attendance and production of documents. In the result, no steps were taken for such summonses to be issued. 193 By email in response, those acting for Samoa indicated that they would request a directions hearing at which a request would be made for the matter to proceed online. The email said: 'We note that your client may raise relevant issues regarding the hearing at that time'. Obviously, this was an invitation for those acting for Mr Pauga to raise any of the matters in Mr Finlayson's letter, including the proposed steps concerning the calling of witnesses and the production of documents, with the Primary Magistrate. 194 A directions hearing was convened before the Primary Magistrate on 5 July 2021. Mr Pauga appeared by video. By that time the lockdowns had been lifted and counsel for Samoa indicated that it was willing to proceed in person, but that it was understood that counsel for Mr Pauga was going to ask for orders that the hearing on 8 and 9 July be vacated. Short submissions were made opposing that course. Mr Mancini then said 'we're not making any application now'. This prompted a submission in response to the effect that if there was an application it should be made at that time. The Primary Magistrate then confirmed the position in relation to material for the hearing and that no further material had been received from Mr Pauga. 195 Mr Mancini was then asked to respond. He said: 'We'll be in attendance in person on Thursday and Friday. And so we're proceeding on that basis'. There was no mention of the need for summonses or that it was proposed to call witnesses even though no material had been disclosed as directed. The Primary Magistrate then summarised the position and said: Mr Mancini has made it clear that there is no application for an adjournment of the hearing on Thursday. He has put on record that he and his instructing solicitor will be here in person on Thursday. I, therefore, propose that this matter proceed commencing 9 am on Thursday the 8ᵗʰ of July as indicated. I will be making an order for either Mr Pauga to appear by video on that day if that's suitable to Mr Mancini. 196 Mr Mancini then said: 'No, your Honour, we require him in person'. After a further exchange about those arrangements, the Primary Magistrate then said: So just to make clear, Mr Mancini has indicated unequivocally that he and his instructing solicitor will be here in person on Thursday. I will have a notice to produce sent to the prison to have Mr Pauga produced in person. 197 No mention was made by Mr Mancini before the Primary Magistrate of possible proceedings in this Court in the interim. 198 On 5 July 2021, the initial form of the First Application and an affidavit of Mr Finlayson in support was finalised. The application indicated that interlocutory relief may be sought. The First Application was commenced and the matter came before me on 7 July 2021 to determine whether any relief was sought with urgency. Mr Mancini appeared and submitted as to urgency: Well, your Honour, indeed there is a potential for that because the Extradition Act matter is before the Magistrates tomorrow and Friday. We would anticipate that in recognition of these proceedings … those proceedings will be vacated and adjourned pending these proceedings. If they are not, then there is a need to consider calling this matter on to pursue the interlocutory relief of injunction, and we would seek liberty to do that, as soon as practicable tomorrow, if the proceedings are not vacated on that basis. 199 Mr Mancini also said to this Court that an interlocutory application had not been filed and that an application would be brought if it were necessary to do so. On that basis, no order was made other than to list the proceedings for a first case management hearing. It was indicated that if there was a need to seek orders urgently then that could be done.

The July Hearing before the Primary Magistrate 200 On 8 July 2021, the July Hearing commenced before the Primary Magistrate. Mr McKechnie appeared for Samoa. Mr Mancini appeared for Mr Pauga who was brought before the Primary Magistrate for the hearing. The proceedings commenced with Mr Mancini seeking to make a preliminary submission. He was permitted to do so and began 'Your Honour's been served with proceedings in the Federal Court?'. After a few exchanges he followed up, somewhat impertinently, with the following question: 'Can I ask your Honour to go and get it, because the registrar has it'. 201 The Primary Magistrate deflected the request by seeking to ascertain whether Mr Mancini had an application. He began ridiculously. He said that his application was for the Primary Magistrate to 'have' the materials from the registrar. When pressed after an extended exchange, Mr Mancini revealed that his application was to vacate the proceedings on the ground that there were proceedings pending in the Federal Court in which the Court was being asked to exercise its 'supervisory jurisdiction'. When Mr Mancini was asked a little later whether there were any other applications he identified the following: (1) an application to adjourn the proceedings on the basis of a constitutional issue having been raised to which s 78B of the Judiciary Act 1903 (Cth) applied; (2) an application for a stay of the proceedings; and (3) an application for the Primary Magistrate to consider disqualifying herself from the hearing on grounds that included the pending Federal Court proceedings and a claim that the Primary Magistrate would be a witness in those proceedings. 202 It may be observed that there was no application made at that stage concerning the manner in which the July Hearing would be conducted, in particular whether Mr Pauga would be allowed to adduce oral or other evidence. Rather, Mr Mancini was raising applications as to why the July Hearing should not proceed. 203 When the Primary Magistrate explained that she was insisting on understanding the full extent of what the applications were because there had been no indication of any adjournment application at the hearing a few days earlier, Mr Mancini responded to the effect that at that time he had said no more than '… we're not making any application now' and that nobody questioned whether there was any other application being made. This overly cute response, following on as it did from the attempt to send the Primary Magistrate on an errand at the command of Mr Mancini, set the tone for what followed. I observe also that it indicated a somewhat cavalier attitude to the responsibilities of counsel to communicate with manifest frankness in the context of any part of the administration of the law. 204 Mr McKechnie then raised an objection to the effect that the applications were an abuse of process in circumstances where (a) a stay had been declined on 23 February 2021 and the Federal Court proceedings had then been flagged; (b) those proceedings had not been filed by the time of the hearing on 12 March 2021; (c) at that time Mr Mancini indicated that those acting for Mr Pauga were working on those proceedings; (d) three days earlier Mr Mancini had said there wouldn't be an application for an adjournment; (e) no application for an injunction or order to restrain the July Hearing had been sought before me the previous day; and (f) there was now an application to vacate a hearing that had been listed four months earlier. 205 Mr Mancini then interjected to insist that he be heard on his applications. The Primary Magistrate then indicated that he would be allowed one hour to make those submissions. 206 In summary, in the course of what followed, Mr Mancini appeared to advance the following submissions (ignoring repetition): (1) an application had been commenced in the Federal Court; (2) in those proceedings a claim of apprehended bias had been made which was based upon the Primary Magistrate's manner and demeanour during earlier appearances; (3) counsel had appeared on behalf of the Primary Magistrate and other magistrates before the Federal Court and had taken an active part in those proceedings by advancing a submission to the effect that the proceedings were an abuse of process; (4) the Primary Magistrate had displayed a lack of concern as to whether she lacked jurisdiction and had indicated that she would move to determine whether Mr Pauga was eligible for extradition without first deciding the questions of jurisdiction that had been raised in written submissions filed for Mr Pauga. These oral submissions were obscurely expressed and made no reference to the Four Pre-Conditions in s 19 (but those were the matters addressed in the written submissions that had been filed for Mr Pauga); (5) at the hearing on 30 October 2020, the only order that was made was for the proceedings to be adjourned and there was no remand. Yet, so it was claimed, after the hearing, there had been a note of a remand on a Form 44 which did not reflect anything done by the Primary Magistrate. Further, all the Form 44s were not instruments of any Queensland magistrate because they were not signed off personally but were issued as if orders had been made by a magistrate acting judicially. These matters were said to mean that the Primary Magistrate was a witness as to the issues raised in the Federal Court; (6) the commencement of the Federal Court proceedings had invoked a 'supervisory jurisdiction' which meant that it was not proper or appropriate for the Primary Magistrate to continue to conduct the hearing concerning Mr Pauga; (7) as claims were made in the Federal Court of apprehended bias and a denial of natural justice, if the Primary Magistrate was to continue with the hearing that would be perceived as an attempt to thwart those proceedings; and (8) notices had been given under s 78B of the Judiciary Act about a constitutional issue (about which submissions had been made on 12 March 2021 to the Primary Magistrate) as to whether the Primary Magistrate had been acting in a judicial capacity because everything had been done by the magistrates as a court rather than as a persona designata which was not permitted under the Extradition Act. 207 As to these submissions, I note that the claim of apprehended bias was not supported by any detail. Towards the end of the submissions in support of the applications, Mr Mancini turned to the nature of the application that was being brought by Mr McKechnie on behalf of Samoa. As to that aspect, Mr Mancini submitted: I don't know what application is being made today, but I suspect it's an application by my learned friend to - for your Honour to determine - to conduct proceedings. In doing so, Mr Mancini feigned misunderstanding. As has been noted, at earlier hearings Mr McKechnie had stated that an application was made to conduct the proceedings under s 19 of the Extradition Act and the July Hearing had been listed for that purpose. Indeed, Mr Mancini continued as follows: Now, there are preliminary steps your Honour has to go through for that purpose. So once he makes that application, I will make my submissions about those preliminary steps … 208 This appears to be a reference to making submissions about the Four Pre-Conditions in s 19 because a bit later Mr Mancini said: Well, he [Mr McKechnie] has to make submissions for your Honour to be satisfied of the requirements of section 19, subsection (1), and so he has to make those submissions. 209 After an exchange about submissions, Mr Mancini said 'Your Honour's never made a determination about jurisdiction' meaning, it would seem, the Four Pre-Conditions in s 19. This appears from what follows shortly thereafter where confusion emerged as to whether Mr Mancini was seeking to repeat the matters that he had raised on 12 March 2021 (which matters had been rejected by reasons given on that occasion). In response, the Primary Magistrate indicated that after hearing any submissions from Mr McKechnie on the applications that had been made by Mr Mancini then those applications would be determined, which led to the following: MR MANCINI: Yes, your Honour. Well, as I say, I'll be making - seeking to make submissions in response to the contentions that your Honour can move under section 19, which is not an application. It's a submission within the confines of the exercise of powers under the Extradition Act. So your Honour needs to hear about that, whether your Honour can do things or not, because it's disputed. It's not a question of an application, your Honour. My learned friend's making submissions and I want to make submissions disputing those submissions that he's put. HER HONOUR: Well, you had an opportunity to do that and you failed - - - MR MANCINI: No, I haven't. HER HONOUR: Yes. Yes. I made directions. MR MANCINJ: So - - - HER HONOUR: I made directions, but let's just deal with your application first. Time's running out. MR MANCINI: So will your Honour hear me about the submissions about section 19? HER HONOUR: Well, it all depends whether I determine that we're proceeding to a hearing. MR MANCINI: Yes. So if your Honour determines -okay. We'll wait to see and hear about that. Thank you. HER HONOUR: That's it? MR MANCINI: Yes, I say nothing else about that, your Honour. 210 Mr McKechnie then made submissions in opposition to the applications. Mr Mancini was then afforded an opportunity to reply. In the course of those submissions, Mr Mancini returned to the point about s 19 and said: And we say that at the section 19 stage of that identifies that a magistrate is not bound to accept the section 16 notice. Your Honour has to be satisfied about a section 16 notice that on its face was invalid, and you apply the same reasoning to the section 15 remands, because we say they're invalid on their face, and, your Honour, they're so. Before your Honour can move to those - a consideration of the application of Samoa your Honour has to go through the steps in section 19(1), and we say, your Honour, that's the very issue of injustice and unfairness. 211 The Primary Magistrate then delivered oral reasons refusing the applications. They began with a summary of the history of the proceedings that reflects more briefly the chronology that has been described in these reasons. As to the hearing on 12 February 2021 her Honour said: A bald application, verbal application, was made to have me recuse myself with no evidence supporting submissions and I refused to recuse myself on that basis. I then directed that Mr Pauga file and serve an affidavit setting out all steps taken prior to the 12th of February in furtherance of the directions made in December 2020, such affidavit to include the reasons why the directions of this Court in December had not been complied with. I also directed that Mr Pauga file and serve an affidavit as to a written plan as to the evidence, reports and witnesses he intended to call and a timetable as to when report, statements, etcetera would be available. And that was, in effect, simply a repetition of previous directions made and not complied with. I directed that the two affidavits the subject of those directions to Mr Pauga on the 12th of February be filed and served before 4 pm on the 26th of February, and I adjourned the matter back before myself on the 12th of March. I should say that on earlier date I made a direction that any recusal application - that is, any application on behalf of Mr Pauga that I recuse myself - be listed for the 12th of March 2021 and I gave liberty to the parties to apply. On the 23rd of February, an application was made on behalf of Mr Pauga that I stay previous orders and there was a lengthy lot of submissions before l dismissed the application for a stay of my orders. 212 Then the reasons dealt with the hearing on 12 March 2021 in the following terms: On the 12th of March it came before the Court and Mr Pauga's legal representatives indicated to the Court that they were not ready to proceed with the application for recusal of myself from the hearing and indicated that they needed transcripts of the proceedings. I indicated to the parties on that date that I proposed listing the section 19 extradition application for hearing. Mr McKechnie said that one day only would be required. As things have turned out and in anticipation of possible further difficulties, the matter was set for two days, being today and tomorrow. I made further directions that Samoa file and serve any material upon which it relies before 4 pm on the 10th of June 2021, and I directed that Mr Pauga file and serve any material upon which he relies before 4 pm on the 24th of June 2021. 213 Her Honour then dealt with the events of 5 April 2021 and said: Mr McKechnie is also correct when he said the Mr Pauga is persistently and consistently and unexplainably in default of the Court's orders … At no time in the directions hearing was there any indication that there would be either an application or applications, as it turns out, as have been made orally by Mr Mancini this morning or, indeed, any application to the Federal Court as was made yesterday. 214 The Primary Magistrate then referred to the proceedings before Crow J and said: And so I put the history of the matter on the record to indicate what I consider to be repeated attempts by Mr Pauga to delay these proceedings by any means possible without notice or with inadequate notice to either Samoa or the Court. What the intended outcome might be is a question for them, but what is being achieved is further delays in this matter in relation to which Mr Pauga has had no success at any level in relation to arguments before the Court. 215 As to the claim of apprehended bias, her Honour said: The proceedings have previously resulted in a dismissal of an application for stay of orders. The matters of jurisdiction have previously been ventilated and determined. The issue of my recusal is limited in terms of material before this Court to paragraph 73 to 81 of the affidavit of Mr Finlayson filed in the Federal Court yesterday, which is no more than a general dissatisfaction with refusal of orders previously made by me without anything to substantiate the requirements for the Court to be satisfied that there is a reasonable apprehension of bias, except to refer to my manner and demeanour on the 12th of March 2021, which at its highest was expressed as 'patronising behaviour'. There has also been oral submissions made of my interrupting of Mr Mancini and there is also a reference in one of the transcripts to heated exchanges between myself and Mr Mancini. Now, accepting that that is the behaviour that another Court might determine is the behaviour I have engaged in, it falls far short of what is required for there to be a reasonable apprehension of bias by me towards Mr Pauga. And it will be for another Court to determine when they read all of the transcripts of all of these proceedings, which are attached to Mr Finlayson's affidavit, commencing at page 70 and going all the way through to page 412. I do not think it could be said that Mr Pauga has not had a fair go or a fair hearing. 216 Then her Honour dealt with the issues raised in relation to the notices under s 78B of the Judiciary Act and said: Other matters that have been raised relate to the notice under section 78B and Mr McKechnie's submissions, I accept, in relation to that argument that in the section 19 Extradition Act proceedings, my duties are administrative in nature as persona designate, and, in any event, Mr Pauga has not identified the matter arising under the Constitution or involving its interpretation that would give rise to me having a duty not to proceed. The only vague reference is to institutional integrity. There is no explanation of that. There is no evidence of that. And, in any event, I cannot determine constitutional matters, even if one had been identified, when one has not. 217 After dealing with the then recent hearing in this Court, the Primary Magistrate said: Mr Mancini promises much in terms of applications and delivers little, except at the door of Court orally, with the consequence that matters are delayed. So I dismiss and refuse the applications for a vacation of the hearing dates today and tomorrow. I dismiss the application for an adjournment of these proceedings. To the extent that it is necessary, given that I have made a previous order not stay proceedings, I further dismiss the further application to stay these proceedings. I also dismiss the application that I recuse myself and I determine, as has been the subject of previous orders, that I have jurisdiction to proceed to hear the section 19 application, the extradition application, and will proceed to do so. … The submissions to which the documents relied upon by Samoa … are submissions made on the 16ᵗʰ of October 2020 and filed and served in these proceedings. That is a period of almost nine months and that has been more than sufficient time for you to unde1take any investigations that you sought to undertake in relation to those documents and, indeed, there are numerous directions that I made which l will not repeat, given I set them out in some painful detail earlier today, in relation to Mr Pauga's numerous opportunities to put material before the Court. Mr Pauga has not complied with a single of those directions, and that includes directions for the filing of material in relation to this hearing by the 26ᵗʰ of July, which was to include any material upon which he seeks to rely. So that's my decision in relation to the refusal of the adjournment. 218 After the oral reasons were delivered, a luncheon break was proposed by the Primary Magistrate. Mr Mancini indicated that he would like to take a break. Before the break was taken, there was the following exchange: MR MANCINI: Well, your Honour, I'm not quite sure what is being sought today. I wonder if my - well, no, no - put on the record - - - HER HONOUR: Well, it's the section 19 extradition hearing - - - MR MANCINI: Right. HER HONOUR: - - - that has been set down since the 12th of March in relation to which I've made a number of directions in which Samoa has filed material, which make it very, very clear to me what they're seeking and, in fact, in my view, it's been very, very clear from the get-go, which is, I think, August last year what they' re seeking. I can' t understand how you can be in any doubt about what today is all about - - - MR MANCINI: Well, your Honour - - - HER HONOUR: - - - given the applications you've made this morning. MR MANCINI: Well, because your Honour won't allow me to make any submissions. So before. we gear up - - - HER HONOUR: Well, I think the transcripts - and l think I went through the numbers - - - MR MANCINI: Yes. HER HONOUR: - - - of pages - would suggest that you have had more opportunities than most judicial officers would be prepared to give. MR MANCINI: Not an opportunity, your Honour. Has your Honour heard me about whether section 19 is engaged? Has your Honour heard me about that? HER HONOUR: Well - - - MR MANCINI: And the answer is no because it hasn't - - - HER HONOUR: Okay, because the procedure is this: after our luncheon adjournment, I'm going to hear from Samoa, who is the applicant. Then I'm going to hear from you. That's when you will make your submissions, after which I will make a determination on the section 19 extradition proceedings. 219 Then after lunch, Mr McKechnie made submissions as to why the requirements of s 19 had been satisfied and Mr Pauga should be found to be eligible for extradition. At the outset, he made the following submission about the Four Pre-Conditions: HER HONOUR: Well, I was certainly only talking in relation to this hearing. MR McKECHNIE: Yes, yeah. MR MANCINI: Well, then, your Honour, they have to stay on the file because a call can be made at any time from the file. My learned friend won't give an assurance that we will have access to them. And so, your Honour, I understand the balance of convenience. I understand all of that. HER HONOUR: All right. Well, this is what I'm going to do. I'm going to accept the originals. I'm not going to mark the originals. If I'm satisfied that the originals and the copy that I've got are one and the same, I'll mark the copy. Should anyone seek access during this hearing to any of the documents, I'm more than happy to hand over the original. MR McKECHNIE: Thank you, your Honour. So then just so your Honour's clear, when my submissions refer to the extradition request, it's the larger document. HER HONOUR: Thank you. MR McKECHNIE: The supplementary bundle, your Honour will note, isn't really necessary to be referred to. It was just provided for completeness. By way of general introduction, there's four stages to an extradition process: the issuing of an extradition request, arrest and remand, eligibility, and surrender. So this is the eligibility stage where a magistrate determines that a person is eligible for surrender. The final stage in proceedings, which is the determination as to whether or not Mr Pauga will or will not be surrendered to Samoa, if it gets past this stage, is performed by the Attorney-General. The nature - and, sorry, I have handed up the bundle of authorities. HER HONOUR: Yes. MR McKECHNIE: So your Honour has the bundle of authorities that I rely on. The nature of the section 19 proceedings are limited. I've set out that in my written submissions, and the case that covers that is the Kainhofer decision that your Honour's already had a chance to look at and I'm going to take your Honour to that specifically later. But, in essence, your Honour is limited to determining the matters that are set out in section 19 of the Extradition Act. Section 19, sub (1) contains four matters which have been described as jurisdictional prerequisites that must exist before your Honour undertakes a hearing. And if those matters are satisfied, then your Honour shall conduct a hearing to determine Mr Pauga's eligibility and, at that point, the considerations of section 19, sub (2) come into play. So in these submissions, I'm going to address everything because it's most convenient to do so, rather than fragment my submissions. 220 Mr McKechnie then made submissions as to why each of the Four Pre-Conditions in s 19 were met in the present case. They included submissions as to why there had been a valid remand for the purposes of s 19(1)(a) and whether the parties had been given a reasonable time to prepare for the purposes of s 19(1)(d). As to the latter, the submission made was that Mr Pauga had been given more than nine months during which time he had been legally represented and that was said to be more than enough time to prepare. 221 At the end of those submissions, Mr Mancini sought confirmation that Samoa had closed its case. Mr McKechnie provided that confirmation. Mr Mancini then sought confirmation of what constituted the court record. He then asked for an adjournment until the next day. One reason for doing so was that there was a need to prepare three witnesses 'for the purposes of giving evidence tomorrow on the section 19 question and call them for that purpose'. 222 The Primary Magistrate then gave reasons refusing the application for an adjournment and refusing an application to call any witnesses. They were brief and were as follows: Well, the adjournment is refused, Mr Mancini, for these reasons. The submissions to which the documents relied upon by Samoa are attached are submissions made on the 16th of October 2020 and filed and served in these proceedings. That is a period of almost nine months and that has been more than sufficient time for you to undertake any investigations that you sought to undertake in relation to those documents and, indeed, there are numerous directions that I made which I will not repeat, given I set them out in some painful detail earlier today, in relation to Mr Pauga's numerous opportunities to put material before the Court. Mr Pauga has not complied with a single of those directions, and that includes directions for the filing of material in relation to this hearing by the 26th of June, which was to include any material upon which he seeks to rely. So that's my decision in relation to the refusal of the adjournment. 223 Mr Mancini sought to interject, following which the Primary Magistrate said: Now, on that basis and on the basis that Mr Pauga has had nine months to respond to fulsome, clear, concise submissions made nine months ago, the adjournment today is denied and the calling of any witnesses is refused. I am not going to have at the eleventh hour yet again an application made on the fly in the hope that this Court or me, however you want to refer to me - and so that application is adjourned as well. So what you are left with, Mr Mancini, is submissions that I would like you to make for the next three-quarters of an hour, and if you have not finished by then, we will continue in the morning. But there will be no witnesses to be called. There will be no adjournment. 224 In consequence, Mr Pauga was confined by the Primary Magistrate to making submissions. 225 In the course of those submissions, Mr Mancini sought to explain why Mr Pauga should be allowed to adduce evidence. He began as follows: … according to no rule of law has non-compliance with an order such as your Honour's mapped out ever resulted in any court or functionary in a deprivation of natural justice for a party to be heard. At all. We want to make submissions about materials and section 19 … And we want to call evidence on that question as well. 226 This provoked the following response from the Primary Magistrate: Well … to make it clear, I refuse your adjournment and I refuse you calling any witnesses. You've had nine months. 227 Mr Mancini persisted, submitting that the directions made and the failure to comply with them did not mean that Mr Pauga was prevented from calling evidence. The submission met with the following riposte from the Primary Magistrate: Oh yes, you are definitely prevented from calling evidence … By virtue of the fact that you've had nine months to do so and you've chosen not to do so. 228 Mr Mancini was then told again that he was not calling any evidence and that he was to make submissions 'on what evidence there is'. He proceeded to do so. After dealing with an objection to the tender of materials by Samoa, he then submitted as follows: Your Honour, for the first time today, [h]as identified and stated that you're acting as persona designata which is inconsistent with everything that's fallen from your Honour to date, and in light of the issues addressed on the March hearing. This was then said by Mr Mancini to be a matter of significance because the Extradition Act provided for a mechanism in s 45B which meant that a magistrate did not have to accept the power to act as a persona designata. It lead to the Primary Magistrate stating: Well, I think you can presume that I've accepted that function. I'm exercising that function and I'm inviting you to participate. 229 A further attempt was made in the context of those submissions to adduce evidence. It was as follows: MR MANCINI: And the effect of that, your Honour, is that your Honour is not accepting your Honours function or power and your Honour shouldn't accept the function of power of the section 16. And that's what I'm addressing, if I may. So Mr Pauga is ready to give evidence. Tomorrow's allocated, all day. There is no impediment to anyone to hearing that. No impediment to your Honour. HER HONOUR: I've made my decision so I wish you'd stop submitting on something I've already ruled upon. MR MANCINI: I'm not submitting about that, your Honour. 230 Later, there was the following submission from Mr Mancini: Your Honour has not made a direction, for example, to any effect that only evidence that's been received is to be received by your Honour in this matter in this hearing. There's nothing in any rule of law which prevents a decision maker receiving evidence when called. 231 Mr Mancini then turned to the terms of s 19 and the Four Pre-Conditions. He made submissions as to whether they were satisfied. They included a submission to the effect that the only application that had been made for the purposes of s 19(1)(c) was an application to Magistrate Merrin and therefore it was Magistrate Merrin who was 'seized of the application'. It was also said that the application was made to the Magistrates Court and not to a persona designata and the history demonstrated that the matters had been dealt with on that basis. 232 It was also submitted that the Primary Magistrate had not made the 'threshold determination' required by s 19(1)(d) to the effect that Mr Pauga and Samoa have had reasonable time to prepare for the conduct of s 19 proceedings. 233 The following day Mr Mancini began with an application 'to close the court and to hear the application in chambers'. In the course of responding to that application, Mr McKechnie returned to the events of the previous day making the following submission: And I'll say this now, because I didn't get the - your Honour didn't require me to make submissions on the rulings yesterday, but, for the record, Samoa not only accedes silently to your Honour's orders, Samoa supports them. We endorse your comments made about the history of this matter and the many, many opportunities that Mr Pauga has had to put in evidence. And to not only put in evidence, but to explain how he's going to put in evidence, Samoa notes that procedural fairness and natural justice outs both ways. What requires - what it requires, according to the cases, depend on the factual circumstances of each case. It is never an open slather right to lead evidence regardless of what stage the proceedings are at. It is rarely, if ever, fair for a litigant to do what Mr Mancini has done yesterday and today and attempt to take the other side by surprise with surprise evidence and to wait until after I had closed my submissions on my case to spring it on everybody. It's a gross abuse of process, your Honour. All that could be achieved from this evidence would be significant procedural unfairness to Samoa or an adjournment. And in the context of this matter, it's not unfair whatsoever and it's not a denial of anyone's natural justice for your Honour to have proceeded in the way that you have. And your Honour should still consistently do that. 234 The application to 'close the court' was refused. 235 Mr Mancini then set about establishing the record on the application. He sought to tender a bundle of materials on a USB stick. It was not received. Mr Mancini made further submissions as to the Four Pre-Conditions to s 19. In the course of submissions concerning s 19(1)(d), Mr Mancini returned to the topic of the evidential rules and procedures that had been established for the hearing. It led to the following exchange: HER HONOUR: No. It goes like this. You haven't called evidence, so you can't call evidence. That's basically - you haven't called evidence. MR MANCINI: That's the sanction, your Honour, because you say that. That's contrary to any rule of law, any principle and it - there is no case flow management. And, if there is, your Honour never had the ability to fashion that for the purposes. In other words, identifying a process. And, indeed, my learned friend says, well, you know, you stick to processes as much as possible. Of course, that is something that's of guidance, but, of course, we have never had any guidance from your Honour about the process that your Honour was embarking upon, other than making directions, not hearing from us about them as to whether your Honour could make directions or the terms of them and then making further directions, your Honour, in terms of filing of affidavits, without hearing from us and without determining, well, what is it that needs to be done? And, your Honour, we try to set that out with the roadmap, which I wanted to speak to when we presented it to your Honour. But, your Honour, typically prevented Mr Pauga's legal representatives from being heard and because your Honour said what I required was an affidavit. This is not an affidavit. Stop talking.' And so, your Honour, all of that, manifestations of gross injustice, contrary to the interests of justice, unfairness and contrary to my client's rights to be heard fairly and openly on ever[y] topic - and your Honour seems to conflate and give paramountcy to orders and directions over and above fairness and justice, which is not in accordance with any rule of law or process or concept of law in terms of natural justice or otherwise. 236 Then, a bit later, Mr Mancini made submissions to the effect that Mr Pauga was never told that if he did not, before the final hearing, file affidavits setting out the matters that he relied upon then he would be prevented from adducing any evidence at that hearing. 237 Returning to the topic of s 19(1)(d), Mr Mancini submitted that Mr Pauga was not ready and said 'We have witnesses we want to subpoena and identify overseas and in Australia. COVID exigencies more recently have also interfered with that'. 238 In the course of further submissions, Mr Mancini advanced a submission to the effect that the Primary Magistrate was only at the stage of considering whether the Four Pre-Conditions had been met and had not yet embarked upon or commenced the Section 19 Proceedings. As to that submission, the Primary Magistrate said: 'I'll be doing it all together in the way submissions have unfolded' and reference was made to the way Mr McKechnie had dealt with the matter. Then her Honour said: 'That's the way we proceeded. You did not object to that occurring. I made clear that was my preference and that is how we're doing it'. It was submitted by Mr Mancini that to approach the matter in that way was a course that was not open under the Extradition Act. 239 There were more objections to the procedure whereby affidavits had been required to be filed and whether that led to the consequence that evidence could not otherwise be adduced. 240 Her Honour then adjourned to the afternoon and delivered reasons finding that Mr Pauga was eligible for extradition and that the Warrant of Committal should issue in respect of Mr Pauga. In dealing with the submissions concerning s 19(1)(d) and whether Mr Pauga had been given reasonable time to prepare, her Honour reasoned as follows: HER HONOUR: In relation to section 2, subparagraph (d), it beggars belief that Mr Mancini could possibly think that the manner in which I have dealt with, in particular, the making of directions - that there could be any reason for Mr Pauga to be given any further time to file material, when it was made clear on any number of occasions that that was required at the latest by the 24th or the 26th of June. Now, there is absolutely no evidence of any kind. There has not been a single affidavit filed in these proceedings and so Mr Pauga is left in the position that there is no evidence before the court in relation to - on his part in relation to any of the matters to which one would ordinarily expect a respondent to such an application would provider attempt to provide, and in particular when the burden is on Mr Pauga as the respondent. The burden is on him to satisfy me that there are substantial grounds for believing that there is an extradition objection in relation to the offence. 241 Therefore, the conclusion on that aspect turned on the fact that there was no evidence before the Court. 242 The extradition objections that had been referred to in materials before the Court provided by those acting for Mr Pauga were also rejected on the basis that there was 'not a skerrick of evidence' as to those matters.

Proposition (1): Contrary to the terms of s 15(1) of the Extradition Act Mr Pauga was not brought before a magistrate as soon as reasonably practicable after his arrest with the consequence that he has never been lawfully detained 243 For reasons already given, upon the proper construction of s 15(1), Mr Pauga was required to be physically brought before a magistrate as soon as reasonably practicable after his arrest. Further, any failure to conform to that requirement was likely to infect all that followed. 244 However, proposition (1) directly contradicts the conclusion reached by Crow J when he was asked to determine precisely the same issue as between the same parties in support of an application by Mr Pauga for the same relief as is sought in these proceedings. In those circumstances, Mr Pauga cannot advance proposition (1) in these proceedings. The principles of res judicata, issue estoppel and abuse of process prevent him from doing so. 245 It was suggested that the issue in these proceedings is not the same as that considered and determined by Crow J because the validity of Mr Pauga's arrest is now in issue for the purposes of s 19(1)(a) which provision was not considered by Crow J. Further, it was submitted that the proceedings before Crow J were conducted on the basis that the appropriate place to raise any claim to declaratory relief that things purportedly done by a magistrate for the purposes of the Extradition Act were invalid was this Court. Therefore, so it was submitted, proposition (1) could now be advanced for that purpose. 246 Even assuming the parties contemplated at the time of the hearings before Crow J that there would be further proceedings in this Court in which the validity of what had occurred before the Queensland magistrates may be challenged, the contemplation of that general possibility would be no answer to the application of the principles of res judicata and issue estoppel. Having proceeded to advance proposition (1) before Crow J in support of a claim to relief in the nature of habeas corpus (being the same relief that Mr Pauga seeks on the present application) Mr Pauga is bound by its rejection in the Supreme Court of Queensland. 247 It may be accepted that there is relief sought by the First Application that was not sought before Crow J. It concerns the validity of certain endorsements on the Charge Sheet, the Form 44s and orders pronounced at hearings conducted by Queensland magistrates. Although it is not entirely clear, it appears that one basis upon which Mr Pauga seeks that further relief is proposition (1), namely that he was not lawfully detained after 20 August 2020 because he was not brought before a magistrate as soon as reasonably practicable as required by s 15 of the Extradition Act. On the argument advanced for Mr Pauga in this Court, there was no remand as required by s 19(1)(a) because there had been a failure to comply with s 15 of precisely the same kind as that considered and rejected by Crow J. Therefore, to the extent that the claim to the additional relief depends upon that same allegation the rights to make that claim merged in the judgment of Crow J dismissing the proceedings in the Supreme Court, or alternatively they depend upon the same issue and there is an issue estoppel. 248 It would be contrary to the rationale for those principles if I was to go on and express my own view as to the merits of proposition (1) on the facts. Lest I am wrong in that view, I have endeavoured to make all the necessary factual findings for any court that is invited to consider the matter on appeal. It should be noted that they do not include all of the material that was before Crow J because, in the present proceedings, Samoa relied upon the decision of Crow J and did not seek to introduce the same evidence in this Court. 249 It was further submitted that Mr Pauga was required to be physically before a magistrate at the end of each period of remand and that he had not been validly remanded on 3, 11 and 18 September 2020, 30 October 2020, 11 December 2020 and 23 February 2021 because he was not physically present on those occasions. The submissions to that effect did not condescend to a consideration of the particular circumstances on each occasion. In particular, they did not explore the significance of the circumstances in which arrangements were made for Mr Pauga not to appear in person on at least some of those occasions. 250 As I have explained in dealing with the proper construction of the relevant provisions, there is a difference between completion of the arrest by bringing a person before a magistrate or eligible Judge as soon as practicable (as required by s 15(1)) and the remand of any such person (as required by s 15(2)). Assuming for present purposes that there was a requirement that Mr Pauga be present in person at each successive hearing in order for him to be properly remanded (a proposition that I do not accept) then the consequence of Mr Pauga not being present would be that he must be validly remanded. For reasons that have been given when dealing with the proper construction of s 15, the Court may give effect to that requirement by ordering mandamus. However, it would not mean that Mr Pauga was entitled to an order which released him from custody. For the Court to make such an order would be to fail to give effect to s 15(2). 251 For those reasons, proposition (1) is rejected.

Proposition (2): In making orders to remand Mr Pauga and the directions and orders as to the conduct of the July Hearing, the Queensland magistrates purported to exercise judicial power and thereby acted without authority 252 For reasons already given, on the submissions advanced for Mr Pauga the merit of proposition (2) depends upon whether any of the magistrates themselves approached the matter on the basis that they were exercising judicial power and did so in a way that impugned their actions. For the reasons given below, the Primary Magistrate did not do so. As to other magistrates who dealt with earlier remands, as I have explained, any defect in the making of an order for remand meant that there was required to be a remand under s 19(2) not that there was invalidity of a kind that would entitle Mr Pauga to an order that he be released from custody. Otherwise, the point was not developed with any specificity beyond the general characterisation of what occurred as being an exercise of judicial power based upon the place where the power was exercised and other attributes of the proceedings. For reasons already given, that submission should be rejected. 253 The issue concerning judicial power appears to have first been raised before the Primary Magistrate at the hearing on 30 October 2020 when Mr Mancini advanced the following submission: … your Honour needs to know that your Honour is not a Court and your Honour's not sitting as a Court, and your Honour's not sitting as a magistrate in a court: your Honour's sitting wholly in a personal capacity pursuant to an arrangement between … the Commonwealth Governor General and the State of Queensland 254 It was taken no further because Mr Mancini's submissions focussed upon a contention that the matter could not proceed unless and until everything that had transpired before the various Queensland magistrates up until that point was in evidence before the Primary Magistrate as a result of steps taken by her Honour. In effect, it was a submission that the Primary Magistrate must be aware of all that has gone before in order to be validly seized of the administrative power conferred by the Extradition Act. 255 By the time of the hearing on 12 March 2021, much more was sought to be made of the point by Mr Mancini. He made the following submission: Again, your Honour is doing this, sitting there as a Magistrate jurisdictional officer in a court. Our point is your Honour can't do anything like this at all and your Honour is purporting to do so. Your Honour is making directions about finding affidavits. There's no concept of an affidavit in the Extradition Act. Not one single thing. There's no concept of directions or orders in the Extradition Act. Not one single thing, your Honour, at all. This is not an extradition proceeding. This is a proceeding before your Honour as a judicial officer in a court and we object to that. And we object to that most strenuously. And everything that's been done in this matter as a result of your Honour presiding has not been done by your Honour in orders and directions. That's been done by somebody else, some functionary of the Registry on its orders - and not your Honour's orders, the orders of a court. Have a look in the file. Every single one of those documents are court orders. 256 Further submissions were then advanced in which Mr Mancini sought to characterise the course of the proceedings as involving the exercise of judicial power. In the course of doing so, he submitted: … that's what your Honour is doing. That's what Mr McKechnie keeps asking you to do. Court do this, court do that. Relies upon, remand orders, etcetera etcetera. I'll take you through it, your Honour, but give me the chance and the opportunity to do so because if your Honour wants to make sure that you've got the power to do it, there will not be [indistinct] make sure you have. And we are putting this seriously to your Honour because it's a serious issue. Because if your Honour hasn't got the power, whatever your Honour ends up doing is going to be a failure. And if your Honour hasn't got the power, then stop it immediately. Every single order is not an order of your Honour. Every single order is not an order of Tina Previtera, Magistrate in Queensland. Every single order is your Honour garbed as a Magistrate judicial officer in the court, in public. Then finalised by way of a sealed document not of your Honour. Your Honour hasn't signed a single order in this case. Not one single order has been made by you. 257 Which led the Primary Magistrate to ask who has been making the orders if she had not been making them. Mr Mancini responded in the following terms: Every time we come here, your Honour, it's - the court is in session. The court is adjourned. Every little detail about this process is not your Honour, Tina Previtera, Magistrate, persona designata. Your Honour comes in and we come in a court, during a court session … 258 Mr Mancini characterised the matters he was raising as a constitutional question emphasising that the Primary Magistrate was 'not a judicial officer here' yet, in his submission, had been sitting as a court and behaving as if the orders being made were those of the magistrate's court. These matters were advanced on the basis that they were 'threshold issues' that had to be addressed. They were advanced at some length. They were put as reasons why directions and orders should not (indeed could not) be made. They culminated in submissions such as the following: Your Honour, furthermore, Samoa has never said that it has made any application to Tina Previtera, Magistrate in a personal capacity. And we say that's one of the threshold questions that arises as a matter of interpretation. Your Honour hasn't received or been asked or been told we're making an application to you as persona designata under the Extradition Act. Rather, they point to something else that happened somewhere else which was - and we'll give evidence about this in a court before a Magistrate judicial officer. So your Honour, we have to say that this question has to be decided. And you can't say that impressionistically or in the absence of proper and meaningful submissions. We make this submission very seriously and we made it back in December. And we identified the principles and we identified the case law. And so we're quite happy to engage in that exercise with a proper hearing being assigned as a threshold question to anything further being done. Because if your Honour's satisfied that what we say is correct, that's the end of you as a Magistrate, the end of the Brisbane Magistrates Court, the end of these extradition proceedings and everything that's been done to date. That's it. It's all over, it's all invalid. It's gone. End it as soon as your Honour can hear a proper and meaningful submission and make a proper and meaningful hearing and determination with the benefit of a fair hearing with natural justice and the time allocated to doing that rather than saying, 'Right, get on with it now.' Do it like a proper persona designata sitting in their office saying… It's not an adversarial, hierarchical system, your Honour. I don't have to call you anything like your Honour in such a situation. I can call your Honour Tina, Ms Previtera. It matters not because you're not here as a Magistrate exercising the functions of a Magistrate. You're here because you're a Magistrate but in a personal capacity. 259 After hearing further submissions from Mr Mancini, the Primary Magistrate proceeded to list the hearing dates for the July Hearing and directed Mr Pauga to file and serve material on which he relied for the July Hearing before 4.00 pm on 24 June 2021. No reasons were given to indicate the views of the Primary Magistrate as to the basis for the making of those directions. They were simply made. 260 At the hearing on 8 July 2021, Mr Mancini returned to the point about judicial power when seeking to defer the conduct of the proceedings pending the determination to be made in the present proceedings which had just been commenced in this Court. As has been noted, in dismissing that application, the Primary Magistrate mentioned that her Honour was acting as a persona designata. Therefore, whatever the position before the July Hearing, it is clear that the conduct of that hearing was undertaken on the basis that the Primary Magistrate was acting as a persona designata. 261 As to the making of directions concerning the filing of material on which Mr Pauga was to rely, there was no hint of any argument as to why the directions made by the Primary Magistrate at the earlier hearings might have been different if informed by an express understanding of the nature of the administrative power being exercised (assuming for the benefit of the submission that there was some misapprehension in that regard). 262 The evidence of the exchanges between counsel and the Primary Magistrate at the July Hearing and earlier hearings was insufficient to establish that her Honour misunderstood the nature of the power that was being exercised. The use of the Form 44s and other forms simply reflect the adoption of those instruments for convenience. The contents of the documents makes clear that they were prepared in respect of extradition proceedings. For reasons that have been given, the adoption of such procedures is a course that is to be expected. Those matters did not call in question whether the Primary Magistrate (or other Queensland magistrates who dealt with the remand of Mr Pauga) properly understood the nature of the power they were exercising. 263 For those reasons, I do not accept proposition (2). 264 It was submitted for Samoa that a claim based on proposition (2) could not be raised because principles of res judicata, issue estoppel or abuse of process prevented any such claim being raised. I have provided a summary of the claims that were advanced on behalf of Mr Pauga before Crow J. I do not accept that proposition (2) was advanced before his Honour. Nor has it been demonstrated that it should have been raised. There were further remands after the conclusion of the Supreme Court proceedings and the key directions regarding the way in which the July Hearing was concerned were made in February and March 2021 and during the course of the July Hearing. In those circumstances, it was open to Mr Pauga to raise proposition (2).

Proposition (3): Certain of the instruments purporting to authorise the continuing detention of Mr Pauga in the period from his arrest until the July Hearing (being the Charge Sheet and Form 44s) were not valid because (a) their contents meant they were not valid and therefore did not authorise any remand under the Extradition Act; and (b) they were prepared and issued by persons other than the Queensland magistrates with the consequence that Mr Pauga was not lawfully remanded 265 As to the Charge Sheet, the submission was to the effect that its contents formed part of the evidence relied upon to support the contention that the magistrates acted judicially. For reasons I have given, that claim should not be accepted. Mr Pauga was not remanded by the authority of the endorsements on the Charge Sheet. Nor was the Charge Sheet relied upon as the source of the authority to remand Mr Pauga. Rather, it was the status of the magistrates and the established facts as to what they decided at each hearing that was relied upon, and properly so. The notations on the Charge Sheet were simply records of decisions made by Queensland magistrates. Indeed, on the evidence, the endorsements on the Charge Sheet were made by magistrates and signed by them. It follows that proposition (3) should not be accepted insofar as it concerned the Charge Sheet and the endorsements made on the sheet. 266 As to the Form 44s, the statement of grounds listed the following as matters that were alleged to show that the Form 44s were invalid by reason of error of law 'on their face': 1.1. The statement 'In the Magistrates Court of Queensland at Brisbane', the error being that the Magistrates Court of Queensland at Brisbane had no role in, or power to issue orders in respect of matters under the [Extradition Act]; 1.2. The statement 'Verdict and Judgment Record' the error being that there was no 'Verdict or Judgment' in respect of proceedings under the [Extradition Act]; 1.3. That statement that it is a 'Form 44 Rule 62 Criminal Practice Rules' the error being the matters under the [Extradition Act] do not arise under the Criminal Practice Rules; 1.4. Stating, 'Judicial Officer', the error being that administrative proceedings under the [Extradition Act] require the magistrate to act in a personal capacity and not as a court or a member of a court; 1.5. The statement, 'Details of trial, sentence or other dealing by the Court' the error being that in administrative proceedings under the [Extradition Act] there is not any trial, sentence or other dealing nor is the same by the court; 1.6 The statement 'Bench Charge Sheet', the error being that a Bench Charge Sheet is not a proper process in administrative proceedings under the [Extradition Act]; 1.7. Referencing a 'Plea' the error being that there is no plea in administrative proceedings under the [Extradition Act]; 1.8. Referencing a 'Plea Date' the error being that there is no plea in administrative proceedings under the [Extradition Act]; 1.9. Referencing a 'Judgment or Order of the Court' the error being that there is no judgement or order of a court in administrative proceedings under the [Extradition Act]; 1.10. Referencing a 'Proper Officer' the error being that a Proper Officer exercises no powers or functions under the [Extradition Act]; 1.11. Being sealed with the seal, 'Magistrates Court Brisbane', the error being that the Magistrates Court Brisbane has no jurisdiction in proceedings under the [Extradition Act]; 1.12. The signature appearing of the Proper Officer thereon not being that of the magistrate that made the order set out; … 1.13 the error being that it is a form of the Court and not a document of the magistrate. 1.14. the error being that it is a form prescribed for use in criminal proceedings Queensland Courts. 1.15. represents that the order therein is an order of the Court, the error being that the Court cannot make orders under the [Extradition Act]. 1.16. represents that the order therein is an order of the Court made by a magistrate as a Court or a member of a Court, the error being that the magistrate acting as a Court or a member of the Court cannot make orders under the [Extradition Act]. 1.17. Excepting in respect of the Fifteenth Form 44, the error being that the form does not state the exercise of a remand under s 15 of the [Extradition Act]. 1.18. shows errors of law on the face of the record by combination of the matters referred to. 267 Save for the Form 44 that was issued after the hearing on 30 October 2020 (see the consideration of proposition (4)), there was no suggestion that the statement on the Form 44 that the identified magistrate had remanded Mr Pauga was an event which had not occurred. Section 15(2) required a remand. The remand could be in custody or on bail. But a remand for a period or periods until the proceedings under the Extradition Act had concluded was required. The terms of s 15(2) do not specify the way in which the remand may occur. It simply provides that the remand must be effected by a magistrate or eligible Judge. Therefore, the remand must be the act of the magistrate or eligible Judge. A formal statement by the magistrate that the person shall be remanded would suffice to meet such a requirement. 268 Further, the way in which the remand is recorded and communicated is not constrained by the terms of s 15(2). In particular, there is no requirement that a document recording the remand need be signed by the magistrate. A person with the actual authority of the magistrate could prepare and sign such a document. Of course, it would need to state that it was the magistrate who had remanded the person. However, a document signed by such a person would be a record of the remand. An issue might arise as to whether it was a sufficient record for the Chief Executive to act upon without further inquiry. As is evident from the reasoning in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602, a warrant may be sufficient authority of itself to answer an application for relief in the nature of habeas corpus in the absence of some evidence from the applicant as to why, in all the circumstances (and despite the existence of the warrant) the detention in unlawful: at [77] (Allsop CJ), [273], [285] (Mortimer J). However, the fact that there was no warrant of remand did not mean that there had been no remand. 269 The adaption of the Form 44s for the purpose of recording the remand by each Queensland magistrate was clumsy. It involved the use of a form for recording an exercise of judicial authority as an instrument for recording an administrative decision. The standard parts of the Form 44 created the clear impression that it recorded an order made by a Queensland magistrate in the exercise of judicial power and for that reason is a practice that is not to be encouraged. Nevertheless, each of the Form 44s that were before the Court identified the magistrate who made the order to remand Mr Pauga as well as the date and period of remand. It was also tolerably clear from the Form 44s that the remand was for the purposes of the Extradition Act. Therefore, on the face of the Form 44s, they contained accurate information as to what had in fact occurred. It is only the presentation of that information in the Form 44 that could be the subject of complaint. 270 So, the question which arises is whether the presentation of the Forms 44s as indicating that the power being exercised was judicial power (rather than administrative power conferred upon the magistrate as a persona designata) leads to the conclusion for which proposition (3) contended, namely that Mr Pauga was not lawfully remanded. 271 The fact that a particular form was used does not mean that there was no decision to remand Mr Pauga by a magistrate acting as a persona designata. As I have noted, the decision to remand was not effected by the execution of the instrument. It was effected by the act of each Queensland magistrate in determining that Mr Pauga was remanded. Therefore, the detention of Mr Pauga is justified by the validity of that determination, not the manner in which that determination may be recorded. 272 The evidence is to the effect that Mr Pauga was remanded by Queensland magistrates who had the requisite authority to do so under the Extradition Act. Thereafter, a 'proper officer' brought the Form 44 into existence. The information concerning the remand was also entered into the computer system maintained for the Magistrates Courts of Queensland. The Chief Executive relied upon the Form 44s as the authority to detain Mr Pauga. There is no evidence as to what the Chief Executive (or those acting on his behalf) understood by the terms of the Form 44s. However, any person reading the Form 44s was given accurate information as to what had occurred in fact. 273 Further, as has been explained, the circumstances in which the remands were ordered is not evidence for the proposition that the Queensland magistrates acted judicially. The circumstances in which the orders were made are consistent with the Queensland magistrates exercising administrative power. Indeed, it is to be expected that they would exercise the administrative power conferred by the Extradition Act by conducting hearings in a court room with the same formalities as would pertain to the exercise of judicial power. Therefore, there is no real evidence to discharge the evidentiary burden on Mr Pauga when it comes to proposition (3). On the other hand, there is ample evidence from which to conclude that there were remands ordered by magistrates who were entrusted with administrative authority by the Extradition Act and the making of those orders by them is sufficient to demonstrate that they accepted the function of power conferred upon them (such that s 45B of the Extradition Act applied to them). 274 Submissions were also advanced for Mr Pauga to the effect that bespoke documents should have been brought into effect by the Queensland magistrates to reflect the fact that the power to remand being exercised by them was an administrative power the exercise of which authorised executive detention. It was submitted that a form of warrant for remand should have been created. It may be observed that there are provisions of the Act that do specify the form to be used. For example there is a form for a warrant of committal. However, there is no form of warrant for a remand under s 15(2) of the Extradition Act. In those circumstances, it cannot be the case that the use of a particular form that was not styled as a warrant of remand meant that the document was invalid. 275 Finally, as has been explained, the Chief Executive was successful before Crow J in submitting that the Form 44s were a proper basis for detaining Mr Pauga. A claim that they could not provide that authority was rejected. As far as is evident from the materials to which I was taken, the submission made by Mr Pauga before Crow J was that each of the Form 44s were forms which could not be used in the context of a person acting as a persona designata under the Extradition Act. In effect, the claim made was that an inappropriate form was used. Proposition (3) raises a more fundamental point. It is to the effect that the use of Form 44s indicated that the detention of Mr Pauga was being justified by a purported exercise of judicial power. A claim of that kind was not put to Crow J. It is a claim that goes to whether, having regard to the terms of Form 44, there was a valid exercise of the administrative authority for the detention (or whether the only authority that was exercised at the time was a mistaken attempt to exercise judicial authority). For reasons I have given, that proposition should be rejected. However, I am not persuaded that Mr Pauga was prevented by principles of res judicata or issue estoppel from raising proposition (3). The submission to the effect that it was an abuse of process for Mr Pauga to do so was insufficiently developed before me to be upheld.

Proposition (4): There was no remand ordered by the Primary Magistrate at the hearing on 30 October 2020 with the consequence that thereafter he was not lawfully detained 276 For reasons I have given, it was not necessary for Mr Pauga to be physically present before the magistrate at the time of any further remand after the initial period of the remand when Mr Pauga was brought before a magistrate. Before the Court are documents referring to the fact that Mr Pauga was remanded on 30 October 2020. Allowing for the possibility that a remand could have occurred at or immediately after the hearing on 30 October 2020 (by decision of the Primary Magistrate) and the absence of any evidence to suggest that the Form 44 for 30 October 2020 contained factual information that was false, the alleged factual basis for proposition (4) has not been established.

Proposition (5): There was no jurisdiction to conduct the July Hearing unless Mr Pauga had been lawfully remanded and by reason of each of the matters stated in (1) to (4) he had not been lawfully remanded 277 As I have explained in dealing with the proper construction of s 19 of the Extradition Act, on the proper construction of s 19(1)(a), the jurisdictional fact that must be established is that a decision to remand under s 15 has in fact been made. It is not necessary to establish that the remand was valid and lawful. On the evidence, by the time of the July Hearing, as a matter of fact, Mr Pauga had been remanded. Therefore, proposition (5) fails for that reason irrespective of what the position may be as to propositions (1) to (4). 278 Further, for reasons already given, each of propositions (1) to (4) has not been established. 279 It was submitted for Samoa that there was no doubt that there had been a lawful remand because there had been a single remand when Mr Pauga was first brought before a magistrate. For reasons already given, I do not accept that to be the nature of the remand that is required by s 15(1). Further, as a matter of fact that was not the nature of the remand orders made.

Proposition (6): There was no jurisdiction to conduct the July Hearing unless an application had been made to the Primary Magistrate for proceedings to be conducted under s 19 of the Extradition Act in relation to Mr Pauga and no such application had been made with the consequence that the Primary Magistrate had no jurisdiction to issue the Warrant of Committal 280 There were five particulars given to sustain proposition (6). 281 First, it was said that Samoa did not make an application within the meaning of s 45B of the Extradition Act because the only application was an oral application made to a different magistrate on 25 September 2020. For reasons already given, I do not accept this submission. There was no need for a written application and there could be no doubt that there was an oral application made on 25 September 2020 which continued to be pressed from the time it was first made. Further, in all the circumstances, Samoa confirmed at the hearing on 12 February 2021 that an application for the Section 19 Proceedings was made and was being pressed. There was no other application that could possibly have been behind the attempts by Samoa to secure a hearing. The disingenuous attempts by Mr Mancini at the hearing on 12 February 2021 and thereafter to feign misunderstanding could not and did not detract from the clear factual position. 282 Secondly, it was said that as the application was made to a different magistrate on 25 September 2020 it was only that magistrate who could hear the application. For reasons already given when dealing with the proper construction of s 19(1) I reject that submission. 283 Thirdly, it was said that there needed to be 'another application' to the Primary Magistrate because her Honour acted in a personal capacity under the Extradition Act. Whilst it may be accepted that the Primary Magistrate acted personally, for reasons given when dealing with the proper construction of s 19(1), the conduct of the whole proceedings could pass to the Primary Magistrate after an application had been made and it was not necessary for the making of the application to be restated. Even if I am wrong in that view, on the facts, by reason of what occurred at the hearing on 25 September 2020 and thereafter, there was another application and it was made to the Primary Magistrate. 284 Fourthly, it was said that as the application was made to a different magistrate, the Primary Magistrate had no jurisdiction. It appears that this particular suggests that as the matter was already before a different magistrate, it was not possible to make a new application to the Primary Magistrate. I do not accept that the application could not be passed to another magistrate. In the present case there is no suggestion that any magistrate other than the Primary Magistrate embarked upon any part of the process of conducting the proceedings. Therefore, no magistrate other than the Primary Magistrate could be said to have entered upon the relevant jurisdiction. 285 Fifthly, it was said that the application came before the Primary Magistrate as a Court or a member of a Court. This seems to depend upon other propositions which I have rejected. 286 For those reasons, I reject proposition (6). To the extent that proposition (6) formed part of the foundation for other propositions, I also reject the merits of the use of the proposition for those purposes.

Proposition (7): There was no jurisdiction to conduct the July Hearing unless the Primary Magistrate considered that Mr Pauga had been allowed reasonable time in which to prepare for the conduct of the Section 19 Proceedings and as the Primary Magistrate did not form that view before proceeding with the July Hearing the Primary Magistrate had no jurisdiction to issue the Warrant of Committal 287 This was a narrow point. It was to the effect that the hearing conducted by the magistrate for the purposes of s 19 was required to be conducted in two stages. In the first stage, the Primary Magistrate was to consider whether each of the Four Pre-Conditions were satisfied. Only once the view had been formed that each of those pre-conditions were satisfied could the magistrate go on and consider whether Mr Pauga was eligible for extradition. 288 The submission confuses two aspects. First, the need for the jurisdictional facts to be satisfied before the Primary Magistrate had the authority to make a decision that Mr Pauga was eligible for extradition. Second, the way in which to arrange the hearing to be conducted by the Primary Magistrate. 289 As to the first aspect, the term jurisdictional fact is a label used to describe statutory pre-conditions which must exist before the repository of power has authority to exercise that power: Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52; (2016) 260 CLR 340 at [47] (Kiefel, Bell, Gageler, Keane and Gordon JJ). Accordingly, a decision-maker does not have authority to finally determine whether a jurisdictional fact exists (noting that in some instances the 'jurisdictional fact' may take the form of an opinion or assessment or a state of satisfaction): see authorities collected in Tsvetnenko v United States of America at [29] (Besanko, Banks-Smith and Colvin JJ). 290 As to the second aspect, of course it was possible for the Primary Magistrate to first hear evidence and submissions to deal with whether the Four Pre-Conditions were satisfied and only proceed if so satisfied. In some instances it would make sense to do so because if the Four Pre-Conditions were not satisfied then there would be no authority to undertake the Section 19 Proceedings and determine whether the person is eligible for surrender. In particular, in circumstances where there was to be a real contest as to whether Mr Pauga had had a reasonable time in which to prepare, it may be sensible to deal with that issue first, especially where there was a real prospect that the view might be formed that there had not been reasonable time in which to prepare. 291 However, the availability of that way of proceeding did not mean that it was required in order for there to be a valid decision for the purposes of s 19 that a person is eligible for surrender. It was possible for a magistrate to proceed to conduct a single hearing to consider both the Four Pre-Conditions and the matters specified in s 19(2) provided the magistrate then considered the evidence and submissions as to whether the Four Pre-Conditions were satisfied and, in particular, formed the state of mind required by s 19(1)(d). Only if that state of mind existed could the magistrate proceed to conduct the Section 19 Proceedings and determine whether the person was eligible for surrender. But the view required by s 19(1)(d) could be formed after a single hearing at which evidence and submissions as to the Four Pre-Conditions as well as evidence and submissions on the Section 19 Proceedings were received. 292 For those reasons, proposition (7) should not be accepted. 293 The opinion required by s 19(1)(d) still had to be formed in a manner that conformed to the requirements of the provision. Those requirements included the need to afford Mr Pauga procedural fairness when it came to the formation of the opinion for the purposes of s 19(1)(d). As was observed in Saeed at [11]-[12] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) it is now settled law that 'when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power … The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction'. Further, what is required to satisfy the principles of natural justice 'is flexible and adaptable to the circumstances of the particular case': at [18]. It is to this aspect that propositions (8) and (9) are directed.

Proposition (8): Alternatively to (7), the consideration by the Primary Magistrate as to whether the applicant had been allowed a reasonable time in which to prepare for the conduct of the Section 19 Proceedings was undertaken without affording procedural fairness to Mr Pauga 294 The way in which those acting for Mr Pauga put proposition (8) was as follows: The [Primary Magistrate] did not consider whether [Mr Pauga] had had reasonable time in which to prepare for the conduct of the proceedings as required by s 19(1)(d) as that consideration lacked procedural fairness as follows: 295 There then followed 30 enumerated points (with reference given to points in the transcript of the July Hearing). In submissions to the Court, counsel for Mr Pauga did not develop the 30 points. Instead, the Court was taken to a few select (indeed, one might say random) parts of the transcript of the July Hearing. In those circumstances, doing the best I can, I now deal with each of the points. In each instance, I will state the point advanced for Mr Pauga in italics and then seek to deal with the point advanced. 296 Accepting submissions from counsel for Samoa but not accepting submissions from counsel for the Applicant. Having read the transcript reference provided, I do not accept that the submission properly characterises what occurred. 297 Reading material tendered or provided by Samoa but not by the Applicant. Having read the transcript reference provided, I do not accept that the submission properly characterises what occurred. 298 Restricting counsel's submissions. At the cited point in the transcript, the Primary Magistrate was doing no more than insisting that Mr Mancini identify each of the oral applications he was making at the outset of the July Hearing. 299 Determining that counsel for the Applicant would not be allowed to make submissions. At the cited point of the transcript, Mr Mancini was seeking to interrupt. 300 Directing counsel for the Applicant submissions would be the subject of limitations of time. No submission was advanced as to why the time given to make submissions was unduly limited or restricted. Having read the whole of the transcript of the July Hearing I can see no respect in which the oral submissions of Mr Mancini were curtailed. I would observe also that there were submissions to which Mr Mancini returned after they had been dealt with by her Honour. 301 Not accepting submissions from counsel for the Applicant. At the cited point of the transcript Mr Mancini interrogated the Primary Magistrate. He began with a submission to the effect that counsel appearing for the Primary Magistrate and other Queensland magistrates at the hearing conducted by this Court when the present proceedings were commenced 'spoke for your Honour'. Mr Mancini then asked 'Does your Honour know about that?' to which the Primary Magistrate responded that she knew nothing. There was then the following exchange: MR MANCINI: Well, does your Honour accept that? HER HONOUR: I - - - MR MANCINI: Your Honour's a party to the proceedings. Does your Honour accept that? HER HONOUR: I know nothing about the proceedings. You're eating into your hour. MR MANCINI: That's of grave concern, your Honour. If your Honour has no interest in the fact of these proceedings in which your Honour's joined as a party, and in which you were represented. And your Honour knows that from the transcript [of the hearing in the Federal Court] where [counsel] says he's representing you. Does your Honour have the transcript? HER HONOUR: Yes, I've read it. 302 Aside from the rudeness with which the submissions were advanced by Mr Mancini, there is nothing of any moment in the exchange. There was no justification for the commentary by Mr Mancini to the effect that the Primary Magistrate had no interest in the Federal Court proceedings. The point being made by Mr Mancini, which was to the effect that the Primary Magistrate had descended into the arena because counsel had appeared for all the Queensland magistrates and made a submission that the proceedings were an abuse of process was, with respect, not a compelling one. It may be noted that the hearing in the Federal Court was brought on because the proceedings were said to be urgent. Nevertheless, at the hearing no application was pressed by Mr Mancini appearing for Mr Pauga. In particular, no application was pressed for interlocutory relief restraining the conduct of the July Hearing despite such relief being sought by the originating application (and its possibility having been raised since at least February 2021). 303 There is no merit in the point being advanced. 304 Stating that the Applicant's counsel had a right of reply but that it was limited to the law. It is the case that the Primary Magistrate, when dealing with the various applications that Mr Mancini made at the outset of the July Hearing, stated that his right of reply was confined to matters of law. It was open to her Honour, in the circumstances of what had occurred and the nature of the applications, to form the view that it was only matters of law which could justify the making of a reply. It was a course that her Honour adopted at a later point in dealing with the submissions that might be advanced by Mr McKechnie. 305 Refusing to allow counsel for the Applicant to make submissions. At the cited point of the transcript, Mr Mancini was advancing submissions in reply in respect of his preliminary applications. He started to develop submissions as to what was required as part of the proceedings to be conducted by the magistrate. He was interrupted by the Primary Magistrate who said 'Well, no we're not up to the section 19 point'. There could be no criticism of the Primary Magistrate in expressing that view. Mr Mancini was then allowed to explain that his submission was to the effect that there was apprehended bias because the validity of the remands would have to be determined by the magistrate in circumstances where a view had been formed about such matters by the Primary Judge in the course of earlier hearings. In short, Mr Mancini put his submission. 306 Impermissibly restricting and directing how counsel was to make submissions. At the cited point of the transcript, Mr Mancini was addressing the Primary Magistrate having lost his preliminary applications. He sought to make submissions as to 'whether s 19 is engaged'. This appears to have been the point (still pressed before this Court) that there could be no hearing at which both the question whether the Four Pre-Conditions had been met and the question whether Mr Pauga was liable for surrender were considered. Rather, Mr Mancini wanted to submit that the Four Pre-Conditions had to be considered first and only if the Primary Magistrate formed the view that they were could the question of eligibility for surrender be considered. For reasons that have been given, that point is without merit. 307 Further, it is not the case that Mr Mancini was foreclosed from making such submissions. As I have explained, in due course he was allowed to make those submissions after Mr McKechnie had made his submissions on both the Four Pre-Conditions and the Section 19 Proceedings. 308 There is no merit in the point being advanced. 309 Refusing to allow counsel for the Applicant to make submissions about s 19 matters. This is the same point as the previous point. It lacks any merit for the same reasons. 310 Permitting Samoa to proceed with the use of materials not filed in accordance with directions previously made by the Primary Magistrate. The point raised here appears to concern an updated chronology provided by Mr McKechnie when commencing his submissions in the substantive part of the July Hearing and is perhaps also a reference to the originals of the supporting documents that had been filed in copy form (and disclosed to those acting for Mr Pauga). As to whether the Primary Magistrate should receive the original or the copies, Mr Mancini submitted as follows: So as I understand it, your Honour, that your Honour will receive the originals, satisfy yourself about those documents, and then receive copies in lieu of retaining the originals on my friend's assurance that, of course, the originals will remain available for such calls as may be made upon them. That's fine. 311 Therefore, there is no merit in the point. 312 Refusing to allow the Applicant to call and tender evidence. This point is addressed separately below. 313 Making such a determination without a hearing. This point is also addressed separately below. 314 Requiring the Applicant to only be permitted to make submissions on the application by Samoa. At the cited point in the submissions the Primary Magistrate indicated that she would hear from Mr Mancini after the submissions of Mr McKechnie. There was no procedural unfairness in that course. 315 Guillotining consideration of submissions by counsel for Mr Pauga about the original documents produced by Samoa. At the hearing, those acting for Mr Pauga sought to inspect the originals of the supporting documents (copies of which had been provided by Samoa many months earlier). At the cited point in the transcript, the Primary Magistrate was being addressed by Mr Finlayson (who acted throughout as the solicitor for Mr Pauga but who also appeared as co-counsel with Mr Mancini at the July Hearing). The exchange relied upon to support the submission occurred after the Primary Magistrate indicated that she would be taking the original documents, checking them against the copies and if satisfied that they are 'in line' with the copies then the copies would be marked as exhibits and the originals returned to Mr McKechnie. 316 At that point, Mr Mancini indicated that Mr Finlayson would make submissions about that question. The following exchange then transpired: HER HONOUR: Thank you, Mr Finlayson. MR FINLAYSON: Thank you, your Honour. When your Honour receives the originals for that comparison, your Honour will see what it is that's occurred to us on the presentation for the first time today. And not in compliance with - - - HER HONOUR: Well, are you going to spell it out for me? MR FINLAYSON: If your Honour gives me the opportunity without interruption, your Honour. MR MANCINI: Yes. MR FINLAYSON: I'm continually observing that the interruptions are completely one-sided in this matter. And I have some fairly succinct submissions to make if your Honour will permit me to do so. May I do so? HER HONOUR: Yes. MR FINLAYSON: We have received these documents for the first time today. Your Honour made orders which are on my - - - HER HONOUR: Could I just interrupt. For the purposes of this exchange, I would need to have the original documents so that I can either accept or not what you're saying. I would need to look at them. MR FINLAYSON: Right. Okay. HER HONOUR: All right. So if I can have them and then you can just point out to me what's different between the originals and what's attached to the - - - MR FINLAYSON: I haven't said that there's a difference between the originals. That is not my submission, your Honour. HER HONOUR: All right, well, whatever your submission is, if it relates in any way to the originals, I need to have the originals so that I can understand your submission. MR FINLAYSON: Indeed, your Honour. Just as we have needed the originals in order to make our submission, and we have been provided with them for the first time today. Now your Honour has been quite deliberate and effectively applied a guillotine about the filing of documents and materials on our side of the matter. Now these documents were not filed in accordance with your Honour's orders that file all materials on which they were to rely by a particular date. That didn't occur. It seems to only be a problem when it comes from our side of the bar table, your Honour. HER HONOUR: Thank you, I'll take them. 317 I have already dealt with the submission about whether there was any unfairness in the originals not having been made available at an earlier date (noting that copies had been made available to those acting for Mr Pauga many months before). I observe, in addition, that there is simply no substance to a comparison between what occurred in relation to the originals of the supporting documents (where copies had been provided) and the failure by those acting for Mr Pauga to provide any materials in accordance with the orders that had been made. 318 Otherwise, there was no guillotining evident from the cited point of the transcript concerning the submissions that might be advanced. 319 Receiving materials produced by Samoa contrary to the Primary Magistrate's previous orders. The same reference is given as for the previous point. There is no merit in the point being advanced. 320 Determining matters about the documents produced without a hearing and pre-emptively. At the cited point of the transcript there occurred the following exchange: HER HONOUR: So what's your objection? Can we deal with this document first? This is the - - - MR FINLAYSON: Yes, the small document - - - HER HONOUR: This is dated the 17ᵗʰ of September. MR FINLAYSON: Yes. HER HONOUR: It's in my bundle and the original is a two-page document. As is the copy, and the original directly - or I should say the copy directly reflects the original. MR FINLAYSON: Well, if your Honour's determined that, there is no point in me making submissions about it. HER HONOUR: That's a matter for you. MR FINLAYSON: Well, has your - is your Honour of that firm view? HER HONOUR: I am of that firm view. Do you want to point out the differences? MR FINLAYSON: There's no point, your Honour. HER HONOUR: Would you like to make some submissions - - - MR MANCINI: If your Honour would - - - HER HONOUR: - - - about the differences? MR MANCINI: Your Honour, we cannot - we cannot do that when your Honour does that because - would your Honour recall that determination? HER HONOUR: No. MR MANCINI: Yes. Well, then, your Honour's determination is final and there's a finality and we don't accept it but your Honour prevents us from doing anything. HER HONOUR: All right. Thank you. We'll move onto this document now. What do you want to say about this document? 321 It can be seen that after expressing a firm view that the copy was a true copy of the original the Primary Magistrate invited submissions about why that was not the case. Her Honour did so twice. Instead of taking up that opportunity plainly and clearly extended, Mr Finlayson and Mr Mancini persisted with a characterisation of what had occurred as the making of a final determination. In my view, they foreclosed the opportunity that was extended to them. It was not correct to approach the matter on the basis that a final determination had been made because the Primary Magistrate invited submissions to the contrary. 322 Refusing to hear submissions on s 45B(2) of the Extradition Act. Section 45B(2) provides that a magistrate 'need not accept a function or power conferred' on a magistrate under the Extradition Act. The submission advanced by Mr Mancini at this point was that the Primary Magistrate should not accept the function of determining the proceedings. This appeared to be the beginning of an attempt to re-agitate the matters that had been addressed by the Primary Magistrate when refusing the preliminary applications by Mr Pauga. The point being made was a ridiculous one. It was to the effect that despite all that had transpired, the Primary Magistrate was yet to accept the relevant function or power under the Extradition Act. It met with the following response from the Primary Magistrate: Well, I think you can presume that I've accepted that function. I'm exercising that function and I'm inviting you to participate. 323 There was no unfairness in responding to the point in that way, particularly having regard to all that had gone before. In any event, at Mr Mancini's insistence he was allowed to make submissions on the point. 324 Stating that Mr Pauga was constrained to only make submissions in response to the submissions by Samoa. This is a point to the effect that Mr Pauga was not allowed to adduce evidence. It is dealt with separately below. 325 Ruling as to the effect of the non-compliance with the directions of the previous directions by the Third Respondent without a hearing. This is also a point about not being allowed to adduce evidence at the July Hearing and is dealt with separately below. 326 The Primary Magistrate stating in her reasons that the Applicant had made repeated attempts to delay. Expressed in that way, the point is no more than a complaint about the process of reasoning. 327 Accepting submissions from counsel for Samoa to refuse to close the court on the application of counsel for Mr Pauga without hearing from Mr Pauga. The Primary Magistrate did hear from Mr Mancini on the application. Her Honour then received oral submissions in response from Mr McKechnie and, at the cited point in the transcript, proceeded to deliver oral reasons refusing the application to close the court. If the point being made is that Mr Mancini was not heard in reply, there is no indication in the transcript that he sought such an opportunity or that it would not have been afforded if he had done so. The submission is without merit. 328 Threatening to charge the Applicant's counsel with contempt from the bench. Refusing to withdraw such a threat of contempt. As these points are related, I will deal with them together. The first cited point of the transcript occurred during the course of an interjection by Mr McKechnie. It was as follows: MR MANCINI: There was an election in the middle of April. The state of Samoa was then constituted by a head of state, the Prime Minister, and a political party who have lost the election and who have striven since then, contrary to the constitution and in contempt of the Supreme Court of Samoa, to prevent the government, the people instructing my learned friend, from preventing - they have been actively preventing the truly elected government, the majority, from taking its place in Parliament, by all sorts of devices, which are illegal, unconstitutional and - - - MR McKECHNIE: Your Honour, at some point it's not just a case of everyone ignoring Mr Mancini's ranting. It actually gets to the point where things that are being said are scandalous and vexatious and ought not be said. HER HONOUR: And, Mr McKechnie, I could, and many would say I should, charge Mr Mancini with contempt from the bench. MR MANCINI: For what, your Honour? HER HONOUR: For the kind of comments that you've been making. That would only further delay the proceedings and so I am going to let it wash over me. 329 Mr Mancini then indicated that the matters to which he had referred concerning Samoa were the kind of matters that 'have an effect on section 19 and your Honour's considerations'. 330 A few pages later there is a further exchange that is cited in support of the point. It is as follows: Mr MANCINI: And your Honour talked about contempt. Your Honour doesn't have a contempt power. Can your Honour tell me if there's a contempt power and where it is to be found. HER HONOUR: You're wasting valuable time, Mr Mancini. MR MANCINI: Well, no. Your Honour's threatened me with that. HER HONOUR: No, I haven't. I haven't. MR MANCINI: Well, your Honour has, and then said you're not going to do so. Can your Honour tell me what is the contempt power? I'd like to know, because then, your Honour, we are on the same page. And if there is no contempt power, then your Honour will - and I say there is now, because your Honour personally has no power of contempt. But what it does mean and prove, your Honour, that we're in a court and your Honour's carrying out a function of a court officer. And that's the contempt power and, again, demonstrates the conflation that's constantly occurring between court and persona. 331 Mr Mancini continued without further reference to the issue of contempt by him or by the Primary Magistrate. Having read all of the transcript and placing the above exchange in context I am satisfied that the references to contempt had no chilling effect upon Mr Mancini. He continued in the way he had begun. There was no procedural unfairness from these matters. 332 Later, after an adjournment, it was Mr Mancini who returned to the point with the following exchange: HER HONOUR: Thank you. Yes, Mr Mancini. MR MANCINI: Your Honour, could I ask your Honour to withdraw the suggestion of contempt? HER HONOUR: No. MR MANCINI: Could your Honour identify for me where your Honour considers that I have - - HER HONOUR: I'm not charging you with contempt, Mr Mancini, and so I will not be discussing the matter further. MR MANCINI: Sorry, your Honour. It's a matter of professional standing here. Your Honour's made suggestions and I think that it's only fair for me - - - HER HONOUR: Well, I'm not going to take up time that would be more useful if this matter is - given your allegations against me in terms of denying Mr Pauga natural justice, if you are going to divert your attention from submissions to be made on Mr Pauga's behalf to argue the toss with me about my opinion of your behaviour. MR MANCINI: Well, your Honour - - - HER HONOUR: And I won't be entering into it. So - - - MR MANCINI: I've made - I will continue to make submissions about your Honour's unfairness and denial of procedural fairness and I think that's nothing untoward in that in any court, and to identify those. 333 By this point (and subsequently), having regard to the course of events at the July Hearing, the reader of the record is left with the distinct impression that Mr Mancini is grasping at every straw to support the claims that had been made in this Court with the commencement of the present application a matter of days before the July Hearing. 334 In context, the earlier reference by the Primary Magistrate to contempt was no more than an expression of frustration at the manner in which Mr Mancini had approached the proceedings. There was good reason to be frustrated. Mr Mancini persisted in disregarding the directions made without explanation. He made repeated oral applications without supporting materials or notice. He threatened applications to disqualify for bias but did not proceed with them, ultimately only advancing his bias submission on the basis that the Primary Magistrate had taken an active role in appearing through counsel in this Court and was required as a witness in these proceedings. Notably, the claim that there was a reasonable apprehension of bias in respect of the Primary Magistrate by reason of matters that occurred prior to the July Hearing was not pressed at the final hearing in the proceedings in this Court. He was disrespectful. He feigning misunderstanding as to what was happening. 335 In any event, when due regard is had to the course of the proceedings and the manner in which Mr Mancini was permitted to present his submissions, this is not an instance where the possibility of contempt might be seen to have been an inappropriate means by which to muzzle or confine the submissions that Mr Mancini might make for Mr Pauga. 336 Refusing to read the cases sought to be relied upon by counsel for Mr Pauga from the Supreme Court of Samoa. At the cited point of the transcript, there is no material to support the submission. 337 Determining to proceed with a decision on all matters all at once. For reasons given in relation to contention (7) there was no procedural unfairness in the Primary Magistrate dealing with the two aspects together, namely the question whether the Four Pre-Conditions had been satisfied and the question whether Mr Pauga was eligible for extradition. 338 Imposing time limits on counsel for Mr Pauga. For reasons already given there was no procedural unfairness in imposing time limits for submissions. Beyond complaining in general terms there was no attempt to articulate why the time limits imposed were not appropriate or reasonable. 339 Not permitting counsel for Mr Pauga to effectively reply. At the cited point in the transcript, the submissions by Mr McKechnie for Samoa on the substantive aspects of the application had been received. Mr Mancini then made lengthy submissions in response, during the course of which he returned at various times to points he had made before, unsuccessfully. At the end of those responsive submissions, the Primary Magistrate called upon Mr McKechnie to make submissions in reply 'on the law'. It may be noted that this is the same course that her Honour had followed on Mr Mancini's preliminary applications. At the end of those submissions, Mr Mancini said: 'Sorry, your Honour. Can I reply?' Understandably, the Primary Magistrate expressed the view that he was not permitted one, but said that he could have 10 minutes. Mr Mancini then made submissions. Nothing in that course of events supports the submission. It is without merit. 340 Stating that the applications of Mr Pauga were yet another attempt to delay proceedings without a hearing. Placed in context, the statements made at the cited point in the transcript do not support a claim that there was procedural unfairness in the conduct of the July Hearing. 341 The Primary Judge did not have regard to material sought to be advanced by Mr Pauga but did receive materials and submissions from Samoa. The difference in approach arose because those acting for Mr Pauga failed to comply with directions made concerning the filing of materials and offered no explanation for doing so. Otherwise, the approach of the Primary Magistrate in not allowing Mr Pauga to adduce evidence at the July Hearing that had not been disclosed in accordance with the directions is dealt with separately below. 342 I have also considered whether the points raised, when taken together, might support the claim of procedural unfairness. As I have explained, the points lack merit. To the extent that there might be thought to be some basis for complaint as to the course followed by the Primary Magistrate at the July Hearing when the points are taken together, they do not support the conclusion that the July Hearing was conducted in a manner that was procedurally unfair. 343 Which leaves the issue of the approach by the Primary Judge to the attempts by those acting for Mr Pauga to adduce evidence at the July Hearing in circumstances where they had failed to comply with earlier directions. 344 As I have explained, the Primary Magistrate first sought to obtain from those acting for Mr Pauga information about what they said needed to be done and what was being done to prepare for the Section 19 Proceedings. They proceeded to file a document which no lawyer acting reasonably could conceive as being a document of the kind that might comply with the direction that had been made. They then sought to justify their actions including by submissions disputing the validity of the direction that had been made. Their contentions were plainly misconceived and, quite properly, were not accepted. They were then directed to file and serve a written plan of the evidence and reports of witnesses that Mr Pauga intended to call and a timetable as to when reports and statements will be available. They were also required to explain why the earlier direction had not been complied with. They did neither. 345 When the matter came before the Primary Magistrate a month later on 12 March 2021, no explanation was provided for the failure by those acting for Mr Pauga to meet the directions. Instead, Mr Mancini proceeded to make submissions as to why there needed to be a hearing to deal with various preliminary and jurisdictional matters that he sought to raise. He again made submissions disputing the power of the Primary Magistrate to make directions about the filing of affidavits. In the result, the July Hearing was listed and directions were made. In particular, there was a direction that Mr Pauga file and serve any material upon which he relied for the July Hearing before 4.00 pm on 24 June 2021. No such materials were filed. 346 There followed the hearing shortly before the July Hearing at which Mr Mancini disavowed any application to adjourn and then the commencement of the July Hearing. 347 Days before the commencement of the July Hearing proceedings were commenced in this Court. They had been foreshadowed before the Primary Magistrate as early as February 2021. However, no relief was sought in this Court to restrain the July Hearing. 348 Mr Mancini began the July Hearing with various preliminary oral applications. They were advanced without papers and without notice, no doubt to the great frustration of all involved. Even so, he was given a substantial amount of time to articulate the nature and basis of the preliminary applications. During none of those submissions did he raise, in terms, the proposition that his client had not had reasonable time in which to prepare for the July Hearing as a reason why the July Hearing could not proceed. Given the history of the way in which the events had unfolded, there is no surprise in the fact that no such claim was made. On the basis of the record before the Primary Magistrate, nothing had been done. Instead, there were attempts from February 2021 to dispute whether there could be directions, to claim that the Primary Magistrate was biased and to contend that the Primary Magistrate was acting judicially without a proper application. Proceedings in this Court had been threatened, but when they were eventually commenced none of the points that had been raised before her Honour were pressed as a basis why the July Hearing should not be allowed to proceed. Further, Mr Mancini himself put no affidavit or other evidence before the Court. Instead he began with theatrical obscurity by treating the Primary Magistrate as if she had become an interested party by reason of the events that had unfolded in this Court and demanded that she go and get the court papers. 349 After hearing submissions on the preliminary applications, her Honour then delivered reasons as to why the preliminary applications should be refused. Up until this point, beyond the reference to the papers filed in this Court which Mr Mancini was allowed to address, he did not seek to place any evidence before the Primary Magistrate. Very significantly, as I have said, he did not seek an adjournment on the basis that Mr Pauga had not had reasonable time to prepare. 350 After the preliminary applications had been rejected, Mr Mancini set about trying to persuade her Honour that it was necessary to consider whether the Four Pre-Conditions were satisfied before proceeding to conduct a hearing at which the matters stated in s 19(2) could be considered. In that context he again sought to complain about whether there was power to make directions and to advance a submission to the effect that the Primary Magistrate had demonstrated bias. However, Mr Mancini began by putting to her Honour that he had not been given an opportunity to make submissions. Not surprisingly, the Primary Magistrate responded by observing 'you have had more opportunities than most judicial officers would be prepared to give'. To which Mr Mancini responded: Not any opportunity your Honour. Has your Honour heard me about whether section 19 is engaged? Has your Honour heard me about that? 351 To which the Primary Magistrate responded to the effect that he would have his opportunity after Mr McKechnie had made submissions. 352 After that Mr McKechnie made submissions in which he dealt with each of the Four Pre-Conditions as well as whether it had been demonstrated that Mr Pauga was eligible for extradition. As to s 19(1)(d), Mr McKechnie's submissions were brief. He submitted that Mr Pauga had been given almost nine months since notice of the application by Samoa and had the benefit of legal representation, including counsel, for all of that time and that: 'On any analysis, that's more than enough time for Mr Pauga to prepare for these proceedings'. 353 Then Mr Mancini was given his opportunity. He sought confirmation that Samoa had closed its case. He then sought an adjournment until the following day: 'for the purposes of giving evidence on the section 19 question and call them for that purpose'. It may be noted that Mr Mancini did not say that he sought to call that evidence for the purpose of persuading the Primary Magistrate that Mr Pauga had not been given a reasonable opportunity to prepare. It produced the short reasons from the Primary Magistrate (already noted) refusing an adjournment or any opportunity to call evidence. 354 After the delivery of those reasons, Mr Mancini objected. He said that he wanted to 'make submissions about materials and section 19 … And we want to call evidence on that question as well'. Which met with the response that the adjournment was refused because 'Mr Pauga has had nine months'. In the exchange that followed, the Primary Magistrate expressed the view that there had been nine months for Mr Pauga to call evidence and chose not to do so. Then, objections were raised to the materials relied upon by Samoa. 355 As to the above events, it may be noted that the materials on the application were the supporting documents that Samoa relied upon on the basis of the provisions that allowed such documents to be produced to the magistrate and admitted in the proceeding if it was duly authenticated. In context, Mr Mancini was seeking to produce evidence on the matters for determination under s 19(2), not evidence as to whether Mr Pauga had been given a reasonable time in which to prepare. At no point did Mr Mancini seek to advance the proposition that nine months was not enough or seek to adduce evidence to explain why that might be so. 356 Later, in the course of further submissions, Mr Mancini said that he wanted to be able to marshall evidence concerning the extradition objections 'but your Honour has imposed a sanction in respect of directions today for the first time to the effect that we cannot deduce that evidence'. Which led to the Primary Magistrate stating: I just want to make it clear because you seem not to understand that I have made a ruling that there will be no adjournment and no witnesses. 357 Later, Mr Mancini turned to submissions about the Four Pre-Conditions. As to s 19(1)(d), the submission made was that the Primary Magistrate had not made a determination about whether Mr Pauga had had a reasonable time in which to prepare before commencing the Section 19 Proceedings. In effect, the submission was that there needed to be a two stage process and an opinion as to whether there had been a reasonable time to prepare had to be formed before there could be a hearing as to whether Mr Pauga was eligible for extradition. It was a submission that was repeated a number of times by Mr Mancini. For reasons that have been given in considering proposition (7), that submission was misconceived. However, for present purposes it is sufficient to observe that there was no submission advanced to the effect that Mr Pauga had not been given reasonable time in which to prepare and certainly no attempt to persuade the Primary Magistrate to receive evidence as to that point. 358 There was an attempt by Mr Mancini the following day to adduce evidence, including an attempt to tender a USB stick of materials. However, those attempts related to evidence to support extradition objections not to revisit the question whether s 19(1)(d) had been satisfied. Much later he sought an adjournment for about a week on the basis of a claim that upon a change in government in Samoa, Mr Pauga's extradition would cease. 359 Therefore, having regard to the way in which he presented his case before the Primary Magistrate, Mr Mancini did not seek to establish that s 19(1)(d) was not satisfied. Therefore, it is not the case that Mr Pauga was denied the opportunity to adduce evidence in support of a submission that he was not given an adequate opportunity to prepare and the Primary Magistrate should find that the pre-condition in s 19(1)(d) was not satisfied. The Primary Magistrate expressly considered that Mr Pauga had had a reasonable opportunity to prepare and concluded that s 19(1)(d) was met. 360 For those reasons, I do not accept proposition (8).

Proposition (9): Alternatively to (7) and (8), the view of the Primary Magistrate that s 19(1)(d) of the Extradition Act had been met was formed in a manner that was arbitrary and capricious because the Primary Magistrate did not investigate the facts 361 Proposition (9) assumes that proposition (8) has been rejected and claims that the Primary Magistrate formed the opinion that Mr Pauga had had a reasonable opportunity to prepare in a manner that was arbitrary and capricious. Beyond specifying a ground to the effect of proposition (9), there were no submissions as to the basis for the contention. 362 There was no submission advanced that recognised the significance for proposition (9) of the characterisation of s 19(1)(d) as a jurisdictional fact. 363 In Knauder v Moore [2002] FCAFC 404; (2002) 127 FCR 327 Allsop J (as the Chief Justice then was) dealt with what was required by s 19(1)(d). At [49], his Honour said: The fact that the magistrate did subjectively consider that the appellant had had a reasonable time in which to prepare for the hearing (something that I am prepared to accept from the transcript he did) does not conclude the matter. The consideration or belief of the magistrate must be one 'formed reasonably upon the material before the decision-maker': Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, 150; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 274-76; and see the cases cited in Enfield, supra at p 150 ftnt 57. The notion of 'reasonableness' in this context can be understood as conveying that which Starke J said in Boucaut Bay Co Ltd (in liq) v The Commonwealth [1927] HCA 59; (1927) 40 CLR 98, 101 (approved by Windeyer J in FCT v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; (1972) 128 CLR 28, 57) which was as follows: … He must not act dishonestly, capriciously or arbitrarily ... So long, however, as [he] acts upon circumstances appearing to him to bear upon the case and giving him a rational ground for the belief entertained … 364 In considering any complaint as to whether the required consideration for the purposes of s 19(1)(d), care must be taken to bear in mind the significance of the provision's character as a jurisdictional fact. What the statute requires is the existence of a state of mind of the kind described in s 19(1)(d) as a precondition to the making of the determination as to whether the person is eligible for surrender. In short, there is no statutory authority to undertake that determination unless the state of mind required by s 19(1)(d) is formed by the magistrate or eligible Judge. 365 The importance of recognising that s 19(1)(d) requires the existence of a state of mind as a jurisdictional fact is exposed by the careful and insightful analysis of Derrington J in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; (2019) 272 FCR 409 at [51]-[92]. The analysis explains the distinction between the concepts of judicial review for jurisdictional error and review of jurisdictional facts and the principles that have been developed for each. As his Honour says at [94]: The former seek to ensure that the state of mind which is a pre-condition for the exercise of power is formed in the manner implicitly prescribed by the Parliament. The latter seek to ensure the subsequent exercise of power is lawful and within the limitations which the Parliament imposes. 366 It may be accepted that the state of mind that was required by s 19(1)(d) to exist (to the effect that Mr Pauga had had reasonable time in which to prepare for the conduct of proceedings to determine whether he was eligible for surrender) was one that could not be formed arbitrarily or capriciously. 367 The reasons given by the Primary Magistrate for concluding that Mr Pauga had been afforded a reasonable time to prepare relied upon the time that had elapsed and the failure by those acting for Mr Pauga to address in any substantive way the directions that required the road map to be provided. There was no evidence from which it might be concluded that more time was needed. As has been explained, no submissions were advanced for Mr Pauga at the July Hearing as to any basis upon which it might be said that he had not been given a reasonable time to prepare. In all the circumstances, it could not be said that the opinion formed by the Primary Magistrate had not been formed genuinely and in a manner that was reasonably open having regard to what had been presented by Mr Pauga (or, more accurately, what had not been presented despite the directions made by her Honour). 368 Therefore, I do not accept proposition (9).

Proposition (10): The July Hearing was conducted without opportunity for Mr Pauga to make submissions or adduce evidence with the consequence that the Primary Magistrate did not consider whether there were any extradition objections 369 It was not in dispute that in making an administrative determination under s 19 of the Extradition Act, the Primary Magistrate was required to afford procedural fairness. The adoption of that position was appropriate because procedural fairness was required: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290 (Lockhart, Gummow and Hill JJ). 370 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [29], Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ referred with evident approval to the following statement in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ): Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. See also BRF038 v The Republic of Nauru [2017] HCA 44 at [59] (Keane, Nettle and Edelman JJ). 371 The gravamen of the complaint concerns the refusal by the Primary Magistrate to allow Mr Pauga to adduce evidence concerning extradition objections (and to make submissions as to why that course should be allowed despite all that had gone before). When it comes to any 'extradition objection', s 19(2)(d) places the onus upon the person whose eligibility for surrender is in issue. The term extradition objection is defined in s 7 in the following terms: For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if: (a) the extradition offence is a political offence in relation to the extradition country; or (b) the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions or for a political offence in relation to the extradition country; or (c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions; or (d) assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or (e) the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence. 372 It was evident from the terms of the documents that had been filed by Mr Pauga in the proceedings before the Primary Magistrate that he was seeking to raise extradition objections. However, in order for those objections to be a basis upon which it may be determined that he was not eligible for extradition, Mr Pauga had to show that 'there are substantial grounds for believing that there is an extradition objection in relation to the offence'. 373 In the absence of any extradition objections (or evidence to support them), Samoa could succeed in obtaining an order committing Mr Pauga to prison by producing the required supporting documents (duly authenticated) and showing that the conduct constituting the offence in relation to the extradition country would have constituted an extradition offence in Australia. 374 Those matters place in context the significance of any refusal by the Primary Magistrate to receive evidence from Mr Pauga. Plainly, procedural fairness required that Mr Pauga be afforded an opportunity to adduce evidence. It was not suggested otherwise. The nature and extent of that opportunity will depend upon the circumstances, particularly the seriousness of the consequences and the extent to which Mr Pauga's own conduct was the reason why he was not able to adduce evidence. 375 Like many of the claims made on behalf of Mr Pauga, this proposition was not developed in any meaningful way in the course of the hearing. Nevertheless, it is evident that the Primary Magistrate approached the matter on the basis that he had been given an opportunity to adduce evidence by the directions and that the failure to comply with those directions was sufficient reason to foreclose any opportunity at the July Hearing for Mr Pauga to adduce evidence. As a result, without allowing Mr Mancini to develop reasons as to why Mr Pauga should be allowed to adduce evidence despite the failure to comply with the directions that had been made, the Primary Magistrate pre-empted the position by ruling that no evidence could be adduced. 376 It may be observed that none of the directions made by the Primary Magistrate before the July Hearing had been made on the express basis that evidence which had not been disclosed before the hearing could not be adduced. Given the nature of the proceedings, such a blanket restriction would be unusual by reason of its potential to operate unfairly. Usually, any such direction would be qualified (expressly or impliedly) by reserving the ability to adduce evidence not disclosed before the July Hearing with leave. Therefore, even if it be assumed that the directions made had the implied effect that evidence not disclosed before the hearing could not be adduced, there remained a need for the magistrate to consider as a matter of fairness, in all the circumstances, whether leave should be given to adduce evidence even though it had not been disclosed. Before deciding to refuse leave, fairness would require the Primary Magistrate to hear any submissions as to why leave should be refused. In considering any such application for leave, there would need to be regard to the nature of the application and the potentially serious consequences for Mr Pauga. 377 Further, a guillotine of that kind given effect by the Primary Magistrate would be unusual in any proceedings where there were potentially very serious consequences. In the present case, this is all the more so where those consequences concerned the personal liberty of Mr Pauga. 378 In fact, the direction made did not take that form. It simply required Mr Pauga to file and serve the material on which he relied by 24 June 2021. In circumstances where there was a failure to comply with the direction there remained a question as to whether he should not be allowed to lead evidence. It was an important question about which a number of things might have been said even if there was no explanation for the failure to comply. 379 During the course of the July Hearing, Mr Mancini made a number of attempts to revisit the question whether evidence might be led. He was rebuffed on every occasion. At no point was he afforded an opportunity to advance submissions as to why evidence should be received concerning the extradition objections despite the failure to conform to the directions that had been made. 380 The course taken by the Primary Magistrate was supported expressly by Mr McKechnie for Samoa. 381 Therefore, Mr Pauga was refused an opportunity to adduce evidence without hearing from Mr Mancini and without any indication in the reasons or other statements from the Primary Magistrate as to the seriousness of the subject matter and the significance of that refusal for the likely outcome. 382 This important point, though buried deeply under the weight of many unmeritorious ones and barely exposed during the course of the hearing, did not lose its significance as a result. As was observed recently, in Nathanson v Minister for Home Affairs [2022] HCA 26 by Kiefel CJ, Keane and Gleeson JJ at [33]: 'There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration': see also [47] (Gageler J). The other members of the court expressed an even firmer position when it came to the consequence of a denial of an opportunity to be heard in relation to an important issue in the context of an evaluative decision-making process: see [76]-[77] (Gordon J), [121]-[127] (Edelman J). 383 In my opinion, there was procedural unfairness in this aspect of the conduct of the July Hearing. Further, the error was of a kind that gave rise to a realistic possibility of a different outcome because the submissions may have led to evidence being led on the important question of extradition objections. 384 For those reasons, proposition (10) should be accepted.

Proposition (11): The Warrant of Committal was invalid by reason of the form in which it was issued 385 Section 19(9B) of the Extradition Act provides that an order committing a person to prison under the relevant provision of s 19 must be made by warrant 'in the statutory form'. The form is prescribed by the Extradition Regulations 1988 (Cth) as Form 12. Relevantly for present purposes, it provides for the signature of the magistrate or eligible Judge issuing the warrant to be attested below the following endorsement: NOW THEREFORE I, (name and designation of magistrate or eligible Judge), a magistrate or eligible Judge within the meaning of the Extradition Act 1988, under subsection 19(9) of that Act, hereby order you to commit to (insert name of prison) to await, in relation to * that offence/ * those offences/, surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5) of that Act. Dated (Signature and designation of magistrate or eligible Judge issuing warrant) 386 Three aspects of the contents of the Warrant of Committal were relied upon to support the contention that it was invalid. They were (a) the fact that at the point in the form where the name of the person issuing the order was to be inserted, the form was left blank; (b) a claim that it was not possible to discern the identity of the magistrate making the order from the signature on the form (or any other part of the form); and (c) the fact that the seal of the Magistrates Court at Brisbane was affixed to the form. 387 On the evidence, the Warrant of Committal was handed up to the Primary Magistrate at the conclusion of the Section 19 Proceedings concerning Mr Pauga together with two letters; one addressed to the Attorney-General and one addressed to Mr Pauga. Under the terms of the Extradition Act certain matters were required to be notified and that was the purpose of the letters. They were signed by the Primary Magistrate in triplicate. A copy of each document was provided to each of Mr McKechnie and Mr Mancini. 388 There was also a Form 44 record produced in respect of the hearing. It identified the judicial officer by name and office as the Primary Magistrate. Under the heading 'Judgment or Order of the Court', it stated: EXTRADITION ORDER - Conviction not applicable I, a magistrate within the meaning of the Extradition Act 1988, under subsection 19(9) of that Act, hereby order you to commit Talalelei Pauga (also known as Tala and Ninja) to the Arthur Gorrie Correctional Centre, or other correctional services facility in the State of Queensland to await, in relation to that offence, surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5) of that Act. 389 There can be no doubt, as a matter of fact, that the Primary Magistrate signed the Warrant of Extradition and that her Honour is the person whose signature is affixed to the warrant. 390 On the evidence, both the Warrant of Committal and the Form 44 were provided to officers of Queensland Corrective Services on 9 July 2021. 391 The Form 44 together with the Warrant of Committal identified the Primary Magistrate as the person with authority to order the committal of Mr Pauga. Both were provided to officers of the Chief Executive as the authority to commit. In any event, the name of the Primary Magistrate is sufficiently clear from the signature and, in those circumstances, the identity of the magistrate who issued the warrant is apparent from the face of the Warrant of Committal. 392 By affixing the seal of the Magistrates Court at Brisbane, the Primary Magistrate did not invalidate the effect of the instrument. In particular for reasons already given, the affixing of the seal did not alter the nature of the administrative power being exercised by the Primary Magistrate. As a matter of fact, the decision to issue the Warrant of Committal was made by the Primary Magistrate as a persona designata. It took effect accordingly. Different issues may arise in a case where an administrative instrument to which the seal of a court had been affixed was treated as an instrument issued with judicial authority. For that reason, the affixing of the seal was not appropriate and is a practice that should not be followed in future cases. 393 For those reasons, I do not accept proposition (11).

Proposition (12): Section 15 of the Extradition Act does not authorise the remand of a person in prison 394 It was submitted that the Extradition Act requires persons to be remanded in a place that is solely for executive detention and that a person cannot be remanded under the Extradition Act to be detained in prison. 395 The first point to note is that proposition (12) only deals with remand. Plainly, the Extradition Act requires that a person in respect of whom a warrant of committal has been issued must be committed to prison. Both s 19(9) and s 19(9B) refer to an order being made to commit a person 'to prison'. The term 'prison' is defined to include 'a gaol, lock-up or other place of detention': s 5. 396 As has been explained, the current detention of Mr Pauga is authorised by the Warrant of Committal. Further, for reasons that have been given, even if it had been established that he had not been remanded as required by s 15(2) then that would not affect the validity of the Warrant of Committal. Therefore, proposition (12), even if established, would not support the relief which seeks to have Mr Pauga released. 397 Further, s 15(2) requires Mr Pauga to be remanded in custody or on bail. The language used would, as a matter of ordinary expression, contemplate that a person would be sent back into custody. It was not explained why that custody could not be in the Correctional Centre. 398 I do not accept proposition (12).

Relief on the First Application 399 Much of the First Application seeks relief on the basis of alleged invalidity of instruments which is said to lead to the consequence that the detention of Mr Pauga is not lawful. For reasons that have been given, the application for all that relief should be dismissed. However, the application also includes a claim that the orders pronounced in the hearings on 8 July and 9 July 2021 be quashed. There is no reference to remitter. The whole claim was advanced on the presumed basis that success for Mr Pauga would lead to an order for his release from custody. Having regard to the fact that the only claim that I have upheld concerns the claim of procedural unfairness by reason of the way in which the Primary Magistrate determined that Mr Pauga could not make submissions and lead evidence concerning the extradition objections at the July Hearing, an issue arises as to whether such an order would be appropriate. 400 It is necessary to consider the reasoning of the Full Court in Knauder v Moore. In that case, Mr Knauder acted on his own behalf. The party seeking his extradition was directed to provide certain materials to Mr Knauder. When the matter came on for hearing, Mr Knauder said that he had not received the materials. The magistrate found 'some support' for the claim. However, despite the considerable extent of the materials and the fact that Mr Knauder was not legally represented, the magistrate adjourned the proceedings only to the next day. Following a hearing the next day, an order committing Mr Knauder to prison to await his extradition was made and a warrant issued. Mr Knauder then sought review in this Court under s 21 of the Extradition Act on three grounds. One of the grounds was an alleged denial of procedural fairness in the conduct of the proceedings under s 19 of the Extradition Act because he had not received the materials as directed by the magistrate until he arrived on the day of the hearing. 401 The primary judge found that there had been a denial of procedural fairness. However, the primary judge went on to conduct a review (as a rehearing in which the Court could reach its own views) and concluded that the order of the magistrate should be confirmed. In doing so, his Honour did not accept the other two grounds which concerned whether Mr Knauder was eligible for extradition in respect of extraditable offences. 402 Mr Knauder brought an appeal. In the Full Court, Conti J delivered the main reasons. His Honour described the essence of Mr Knauder's case on appeal in the following terms (at [21]): … by reason of the very short notice he received from Magistrate Moore as to the commencement of the proceedings in the Local Court, he was denied the benefit of the condition precedent to the conduct of the proceedings, or of the jurisdictional fact, the subject of s 19(1)(d) of the Act. The consequence in law therefore was said to be that the occasion for consideration by Magistrate Moore of the supporting documents, and for his Worship becoming satisfied of the matters the subject of pars (c) and (d) of subs 19(2) of the Act, did not eventuate. It followed, so the appellant further contended, that the Magistrate's extradition order should have been quashed in its entirety. 403 The critical issue was whether, notwithstanding the denial of procedural fairness before the magistrate in the form of not allowing a reasonable time to Mr Knauder to prepare, the primary judge was nevertheless authorised to confirm the order of the magistrate on the basis of a complete rehearing conducted by the primary judge: at [24]. The submission advanced on appeal was that the findings of the primary judge amounted to a determination that a prerequisite to the magistrate's jurisdiction (namely forming the view required by s 19(1)(d)) had not been established and therefore the magistrate had no jurisdiction to conduct the hearing as to whether Mr Knauder was eligible for extradition: at [26]. On that basis, it was submitted that the appropriate order on appeal was one which quashed the determination by the magistrate: at [27]. 404 Conti J then dealt with a claim that any error by the magistrate could be corrected by the rehearing provided for by a s 21 review (and the authorities to the effect that such a hearing was on the merits, though confined to the evidence before the magistrate). His Honour said at [34]: The context in which those statements of principle were enunciated in the course of the Kainhofer litigation, as in the case of the statements of principle referred to in Dutton, was not a rehearing arising out of non-compliance with subs 19(1)(d) of the Act. As I have already foreshadowed in my discussion of Dutton, the complaint made by the appellant in the present appeal falls within the parameters of par (d) of subs 19(1), leaving aside for the moment the import of the opening words thereof "the magistrate considers". The evident function of subs 19(1) generally is the stipulation of conditions precedent to a magistrate's statutory authority to make a determination as to whether a person is eligible for surrender in relation to an extradition offence propounded by an extradition country. I have not derived any decisive assistance from the principles propounded in Kainhofer in relation to the implications of non-fulfilment of par (d), if that non-fulfilment was present. 405 Later, his Honour observed at [37]: 'Conceptually, there cannot be a re-hearing, as distinct from a fresh hearing, when a condition precedent to the original hearing has not been fulfilled'. 406 As to the result, Conti J found at [40]: I would therefore conclude that since Magistrate Moore not only denied to the appellant a reasonable time within which to prepare for the conduct of the extradition proceedings, but could not objectively be said reasonably to have given consideration to the fulfilment of s 19(1)(d), as a condition precedent to his entitlement to continue with the hearing of the extradition proceedings, his Worship was not authorised by the Act to determine the eligibility of the appellant for surrender. 407 His Honour concluded at [40]: Without fulfilment of that condition of exercise of his statutory authority to determine the eligibility of the appellant to surrender, his Worship acted without jurisdiction. In those circumstances, it was in my opinion not open to the Federal Court at first instance, having in substance determined that the jurisdictional fact the subject of s 19(1)(d) was not satisfied, contrary to the finding of his Worship, to thereafter enter upon its own consideration, and to make its own determination pursuant to subs 21(2) of the Act, as to whether one or more of the extradition offences ought to be confirmed or quashed. 408 It appears that before the Full Court, it was accepted by the extraditing country that the above reasoning pathway meant that Mr Knauder could no longer be said to be lawfully on remand: at [41]. In those circumstances, Conti J found that the appropriate order required that the decision to issue the warrant of committal be quashed and Mr Knauder be released. 409 It may be noted that at [31], Conti J had observed: In the present case, the appellant has adopted the course of appealing, rather than seeking prerogative relief, in order to pursue his case based upon non-fulfilment of subs 19(1)(d) of the Act. Consistently with the view expressed by Kirby P extracted above, I would not identify any procedural impediment in principle to the adoption of that course. Counsel for the FRG, who conducted its case fairly and frankly before the Full Court, did not raise any issue in that regard, and I think correctly so. There is no doubt that the critical issues which have arisen in the appeal have focused essentially on the consequences of non-fulfilment of s 19(1)(d). 410 Implicit in the above passage, is a recognition that perhaps the proper procedural course would have been for Mr Knauder to have pursued prerogative relief rather than raise his complaint about procedural fairness in the context of the statutory review under s 21. 411 Allsop J (as the Chief Justice then was), approached the issue in a slightly different way. His Honour began by describing at [48] what was required by s 19(1)(d): Paragraph 19(1)(d) of the Extradition Act 1988 (Cth) (the Act) calls for a state of mind to be reached by the magistrate hearing the application. The magistrate must consider that the person and the extradition country have had reasonable time in which to prepare for the conduct of the proceedings. This is not the same issue as to whether, as a matter of fact and law, procedural fairness was afforded to the person, though it obviously bears a close relationship to it. 412 His Honour found that the view formed by the magistrate did not satisfy those requirements and there was 'thus an absence of a necessary pre-condition or jurisdictional fact authorising the magistrate to conduct the proceedings': at [51]. This amounted to jurisdictional error: at [52]. Significantly, his Honour went on to reason as follows at [58]: I do not think that it can be concluded with confidence that the denial of procedural fairness would have made no difference to the material before the magistrate. Thus, I do not think that it can be confidently concluded that the denial of procedural fairness was cured by the review before the primary judge. The position is closely analogous to the consideration as to whether compliance with the rules of natural justice would have or could have made no difference to the decision in question... I think the Court should proceed with caution before concluding that failure, so manifest (as the learned primary judge correctly found), to afford the appellant any basic fairness in preparing his case could not have affected the evidence before the magistrate…I do not think that it can be concluded that the review under s 21, constrained as it was by par 21(6)(d), necessarily cured the error of the magistrate in proceeding without par 19(1)(d) being satisfied and with the appellant being denied procedural fairness in the manner that occurred. In my view, with the utmost respect, the learned primary judge erred in concluding that the review before him necessarily cured the absence of procedural fairness before the magistrate. 413 Importantly, his Honour then said at [59]: In the absence of more detailed argument, I would prefer not to decide the question whether failure to satisfy par 19(1)(d), of itself, and irrespective of the possibility of prejudice, required the quashing of the orders of the magistrate. 414 The other member of the Full Court was Mansfield J. His Honour said at [1]: I agree with the orders proposed by Conti J, although like Allsop J, I prefer to confine my reasons for making those orders to the consequences of the failure of the Magistrate to accord procedural fairness to the appellant, particularly having regard to s 21(6)(d) of the Extradition Act 1988 (Cth). I respectfully agree with the reasons for decision of Allsop J leading to that conclusion. 415 Orders were made quashing the warrant of committal and ordering that Mr Knauder be released from custody. 416 The present case is not like Knauder v Moore. For reasons I have given, there was no procedural unfairness in the conclusion reached by the Primary Magistrate for the purposes of s 19(1)(d). Rather, the procedural unfairness in the present case concerned the refusal by the Primary Magistrate to allow Mr Pauga to adduce evidence for the purposes of the determination under s 19(2) and (9). As to that determination, Mr Pauga had available the statutory right of review under s 21. 417 At the time of the decision in Knauder v Moore, s 21(6)(d) provided that this Court on review 'shall only have regard to the material that was before the magistrate'. Since the decision in Knauder v Moore, an amendment has been made to allow for a party to adduce evidence in the review proceedings under s 19 where the party was 'prevented from adducing evidence' in the proceedings before the magistrate of eligible Judge: see s 21(6)(d) and s 21A. Plainly, the availability of that course is directly relevant to the approach by Mansfield and Allsop JJ. 418 In Brock v United States of America [2007] FCAFC 3; (2007) 157 FCR 121, the issue was once again whether the jurisdictional precondition in s 19(1)(d) had been satisfied. Black CJ posed the question for consideration in terms of whether a review for the purposes of s 19(1)(d) had a different character to a review for the purposes of s 19(2): at [25]. In that regard, it may be noted that the review procedure invoked (like that in Knauder v Moore) was an application under s 21. However, there is a certain incongruity in claiming that there was an absence of the jurisdictional foundation for the making of the decision that was sought to be the subject of the statutory right of review. Put another way, if the pre-condition expressed in s 19(1)(d) is not established, then there can be no decision under s 19(2) that a person is eligible for extradition and, consequently, no decision to be reviewed under s 21. 419 In any event, the claim failed because it was not demonstrated that there was reviewable error in the finding by the magistrate that Mr Brock had reasonable time to prepare: at [32]-[35] (Black CJ), [41], [48]-[58] (Jacobson J). 420 Rares J dissented. His Honour found jurisdictional error and would have remitted the matter on the basis that Mr Brock was required to remain in custody pending the hearing and determination of the proceedings as required by s 19: at [115]. 421 However, these cases must be distinguished from the present circumstances because I have made no finding to the effect that the pre-condition in s 19(1)(d) was not satisfied. Rather, I have found procedural unfairness in the making of a determination that could have been the subject of an application for a rehearing in this Court on the merits. Further, the rehearing would be required to be conducted on the basis that evidence that Mr Pauga was prevented from adducing and which he should have been permitted to adduce formed part of the evidence. Mr Pauga chose not to pursue that course. As is explained in the separate reasons on the Second Application, rather than pursue that course he confined his application for review under s 21 to matters concerned with the admissibility of the documents produced by Samoa. 422 Nevertheless, it may be noted that during the interlocutory steps in both proceedings, Samoa made plain its position that it objected to this Court receiving any materials that might support extradition objections. Had Mr Pauga sought to adduce materials of that kind real issues would have arisen as to whether they fell within the terms of s 21A. Therefore, there must be real doubt as to whether Mr Pauga would have been able to adduce evidence as to the extradition objections for the purposes of the Second Application. No submission was advanced for Samoa to the effect that the availability of the statutory right of review under s 21 of the Extradition Act was a reason why any of the relief sought by Mr Pauga should be refused. 423 In those circumstances, Mr Pauga has demonstrated that the determination by the Primary Magistrate that Mr Pauga was eligible for extradition and the issue of the Warrant of Committal were infected with jurisdictional error by reason of the failure to afford procedural fairness to Mr Pauga at the July Hearing. However, he has not demonstrated that the Primary Magistrate lacked jurisdiction. Therefore, the appropriate relief is to set aside the determination and the Warrant of Committal and remit the matter for determination according to law. The matter will return before the Primary Magistrate or such other Queensland magistrate as may be allocated the matter on the basis that Mr Pauga is required to be on remand by reason of the terms of s 15(2). In the exercise of this Court's jurisdiction to grant appropriate relief upon the demonstration of jurisdictional error, there will be an order of this Court remanding Mr Pauga in custody so as to enable the making of orders thereafter by a magistrate or eligible Judge pursuant to s 15(2) of the Extradition Act in respect of Mr Pauga. 424 The First Application must otherwise be dismissed. 425 As to costs, the appropriate course is to reserve liberty to any party to apply for costs. Any such liberty shall be exercised by filing a minute of proposed orders stating precisely the terms of the cost order sought together with submissions and any affidavit in support.

Mr Pauga's application for bail 426 As I have noted, shortly prior to the final hearing of both applications, Mr Pauga filed the papers for a bail application in each of the proceedings. I determined that the application for bail should be refused. I did so for the following reasons. 427 In the case of an application for bail brought within the statutory application for judicial review, s 21(6)(f)(iv) provides that such an order may be made 'if there are special circumstances justifying such a course'. The content of what is required for special circumstances was explained in United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165; see also Tsvetnenko v United States of America at [16]. The application for bail brought in these proceedings sought to invoke the common law jurisdiction to grant bail in circumstances where the Court's jurisdiction to grant relief in the nature of habeas corpus was invoked. 428 For Mr Pauga it was contended that where bail is sought pending the hearing and determination of an application for a writ of habeas corpus, it is not necessary to show that there have been special or exceptional circumstances. Rather, it was said that the approach to bail requires the application of common law principles which are informed by the Court's understanding that the right to personal liberty protected by the writ of habeas corpus is an essential part of the rule of law. In effect, the submission advanced was that, whereas a valid exercise of administrative power conferred by the Extradition Act means that the statutory requirement for exceptional circumstances applies when seeking bail pending the outcome of the exercise of the statutory right to judicial review, that is not a reason why the exceptional circumstances standard applies if a person claims that there has been no valid exercise of power under the Act and invokes the court's supervisory jurisdiction to protect that person's right to liberty from detention without lawful authority. 429 The issue was whether a test for bail that applies where there has been a valid decision that a person is eligible for surrender can affect the test for bail that applies if the claim made is that the decision was not valid (and therefore is unauthorised by the statutory provisions that establish the requirement for exceptional circumstances). 430 In my view, there is merit in the submission to the effect that there is a substantive difference between the two cases. The terms of the Extradition Act contemplate that a person who seeks bail pending an application for judicial review will have been determined to be eligible for surrender by a magistrate acting within the jurisdiction afforded by the Act. Whereas, the application for bail in the present case was to be determined in circumstances where the substantive application for relief was based upon alleged invalidity in the detention of Mr Pauga. Therefore, the application for bail in the present case was to be distinguished from an instance such as that addressed in United Mexican States v Cabal where the provisions of the Extradition Act have been validly invoked and therefore 'illuminate the object of the proceedings that give rise to the application or appeal': at [45] (Gleeson CJ, McHugh and Gummow JJ). Otherwise, the invalid invocation of extradition proceedings would justify subjecting a person to restraints upon their liberty (bail only in special circumstances) that would not otherwise arise. 431 At common law, the authorities use different language when considering an application for bail. In R v Spilsbury [1898] 2 QB 615, an order had been made under the Fugitive Offenders Act 1881 (Imp), committing the defendant to prison to await his return to the place where the offence was alleged to have been committed. The defendant applied for a writ of habeas corpus to be released from custody, or for an order to admit the defendant to bail, and to vary the magistrate's order for the return of the defendant by directing that he be returned for trial to Gibraltar instead of Tangier. 432 Lord Russell CJ (other members of the court agreeing) said at 619-620: It seems to me not to be necessary, or desirable in the interest of the defendant, to elaborate the matter much at this stage of the proceedings, but, on considering the whole of the materials which were before the magistrate, I am of opinion that there was sufficient evidence to warrant the magistrate in arriving at the conclusion that there was a strong or probable presumption that the defendant had committed the offence charged. For these reasons I am of opinion that the application for a habeas corpus ought to be refused. 433 The Court then referred to the common law jurisdiction to determine bail at 620: This Court has, independently of statute, by the common law, jurisdiction to admit to bail. Therefore the case ought to be looked at in this way: does the Act of Parliament, either expressly or by necessary implication, deprive the Court of that power? The law relating to this subject is well stated in 1 Chitty's Criminal Law, 2nd ed. P.97, as follows: 'The Court of King's Bench, or any judge thereof in vacation, not being restrained or affected by the statute 3 Edw. 1, c. 15(1) in the plenitude of that power which they enjoy at common law, may, in their discretion, admit persons to bail in all cases whatsoever, though committed by justices of the peace or others, for crimes in which inferior jurisdictions would not venture to interfere, and the only exception to their discretionary authority is, where the commitment is for a contempt, or in execution. Thus they may bail for high treason, murder, manslaughter, forgery, rapes, horse-stealing, libels, and for all felonies and offences whatever. 434 After discussing the power to admit the defendant to bail, the process if a fugitive is committed to prison from where a writ of habeas corpus is sought, and circumstances where a bailed fugitive declined to surrender, Lord Russell CJ held at 622: I have come to the conclusion that the provisions of the statute are consistent with the recognition of the power of this Court to admit to bail in such cases as the present. This inherent power to admit to bail is historical, and has long been exercised by the Court, and if the Legislature had meant to curtail or circumscribe this well-known power, their intention would have been carried out by express enactment. But how ought the power to be exercised? Considering the class of cases which are likely to arise under the Fugitive Offenders Act, it is obvious that the power ought to be exercised with extreme care and caution. 435 It may be noted that the court was there concerned with a case in which it had concluded that habeas corpus should be refused. Therefore, the court was dealing with an application for bail at common law in circumstances where the lawfulness of the extradition proceedings was not at issue. 436 The 'care and caution' test has been applied to common law bail applications in extradition cases in a similar manner to the special circumstances requirement in the Extradition Act. So, in R v Phillips [1922] All ER Rep 275 (Lord Hewart CJ, other members of the court agreeing) said of the 'care and caution' approach (at 278): What it means I think is that this country has entered into an agreement with a foreign country under the comity of nations and has deliberately taken upon itself the obligation, upon a charge properly made, to hand over to that foreign country a person in this country who is charged with the commission of an offence in that country. That is an obligation which this country has entered into, and the scrupulousness of conduct with which that obligation is regarded and performed is not measured by any particular tenderness shown to the foreign country, but is measured by the duty which, having entered into an obligation of that kind, we conceive to be owing to ourselves. It becomes a point of honour when a treaty of that kind has been made that special care should be taken to fulfil it. That does not mean, nor did the learned Attorney-General so contend, that in no case under the Extradition Acts is the question of bail to be considered. What it does mean is that where a case is under the Extradition Acts there is, in addition to the normal considerations which apply to a question of bail, an added ingredient due to the fact that a treaty has been made with a foreign country. … It is quite true that he said it was not the practice to grant bail in cases of extradition. That does not mean that it is the practice always to refuse bail. I think it meant no more than that which I have indicated already, that in such a case there are special grounds for care and caution. 437 It has been recognised that an interlocutory order for bail may be made when a person seeks habeas corpus: Al-Kateb v Godwin at [26] (Gleeson CJ); and R v Secretary of State for the Home Department; Ex parte Turkoglu [1988] QB 398 at 399. There are cases in this Court which identify the distinct character of an application for bail pending the hearing of an application for habeas corpus: Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169; von Arnim v Federal Republic of Germany [1999] FCA 1747 at [16]-[22] (Goldberg J); Peniche v Vanstone [1999] FCA 1688; (1999) 96 FCR 38 at [29] (Kenny J); Chan v Minister for Justice and Customs [2001] FCA 170; (2001) 108 FCR 65 at [20]-[21] (Stone J); and Zentai v Honourable Brendan O'Connor [2009] FCA 1597 at [23]-[25] (McKerracher J), but see Holt v Hogan (No 1) (1993) 44 FCR 572 at 579 (Cooper J). 438 At the time that I heard the bail application, the final hearing had been concluded. All contentions had been fully argued before me and the decision in the matter had been reserved. As to the merits, the only proposition that appeared to have merit was the claim that Mr Pauga had been denied procedural fairness by reason of the way in which he had been denied the opportunity to make submissions as to why he should be able to adduce evidence concerning extradition objections (with the consequence that he was not allowed to adduce any evidence). I formed the view that the claim by Mr Pauga in that regard had reasonable prospects of succeeding. However, it seemed to me that the appropriate relief to be granted if that claim was to be upheld was an order remitting the matter for determination according to law. In other words, I was not persuaded that there were reasonable prospects of Mr Pauga succeeding in his claim to any relief that would result in his release from custody on the basis that his detention had been unlawful. 439 In those circumstances, I was not persuaded that it would be appropriate to order the release of Mr Pauga on bail in circumstances where the only basis upon which relief was claimed in respect of which he had an arguable claim was relief that would not lead to his release from custody: see Chan v Minister for Justice and Customs. Since refusing bail I have noted that the decision in Chan was applied in Matson v Attorney-General [2022] FCA 790 at [49]-[51] (Logan J). 440 Different considerations may apply in a case where habeas corpus relief is sought by an applicant who was released on bail during the conduct of extradition proceedings before a magistrate or eligible Judge or where the application for bail was made on the basis that such an order would be appropriate on remitter. However, the application in the present case was not put in those terms. Indeed, Mr Pauga had not sought bail before the Primary magistrate. Rather, to the extent that it was submitted that there should be bail based on the availability of bail under the statutory provisions in the Extradition Act (which provisions required special circumstances), those submissions were made in the Second Application. They are dealt with in the reasons on the Second Application to be delivered at the same time as these reasons. I certify that the preceding four hundred and forty (440) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.