Pauga v Chief Executive of Queensland Corrective Services

COLVIN J: 1 The applicant, by interlocutory application dated 19 January 2021, seeks orders in relation to the dismissal of certain aspects of his substantive application, leave to discontinue against certain of the respondents and leave to amend the substantive application in the form of what is described as a second amended application. The only aspect in dispute concerns the application for leave to amend. 2 The form of substantive application does not state the grounds upon which the application is advanced. This matter has been proceeding on the basis that those grounds are to be found in the affidavit material filed in support of the application. The first attempt by the court to bring some rigour to the advancement of this application was to make directions for any amended grounds to be filed in September 2021. The applicant did not avail himself of the opportunity to file materials by that time. Then there were directions made for any further affidavit material and submissions in support of the application to be filed in December 2021. That deadline was not met. 3 There was then a case management hearing on 17 January 2021 brought on at the request of certain of the respondents by reason of the failure by the applicant to file any further affidavit and submissions. At that time directions were made timetabling the hearing of any interlocutory application for leave to amend. An application was filed, being the application before the Court today. 4 Shortly prior to the hearing of the interlocutory application, an extensive affidavit by the solicitor for the applicant has been filed together with a written outline of submissions which articulates the case to be advanced by the applicant. The filing of this written outline of submissions is the first substantive articulation other than by general evidence of the nature of the case that the applicant seeks to advance. Within that material is what might properly be described as an oblique reference to an issue in relation to the arrest of the applicant. The reference appears in the context of submissions which are otherwise focused upon the lawfulness of the detention of the applicant during the course of extradition proceedings. The statement is to be found in para 29 of the written submissions where there is a reference to what is described as an 'invalid purported arrest'. There is also a statement in para 6 of the outline of submissions to the effect that the applicant contends, somewhat obscurely, that 'at the point of arrest of the applicant he has not been in lawful custody'. 5 Further, on the solicitor's affidavit material recently filed, for the first time there is an articulation of a complaint in relation to the state of mind of the arresting officer in respect of the initial arrest of the applicant. The allegation is to the effect that the intention of the relevant officer was not to bring the applicant before a court as required by the legislation. As the case has been articulated today in oral submissions it is said, in addition, that such intention continued and somehow and by some means infected the ongoing jurisdiction exercised in respect of the detention of the applicant for the purposes of the extradition proceedings. 6 This issue in relation to the intention of the arresting officer is not a matter which is new in the sense that is a matter that has recently come to the attention of those acting for the applicant. It is accepted by counsel for the applicant that an issue in relation to the intention of the arresting officer was previously raised in habeas corpus proceedings brought before the Supreme Court of South Australia in respect of the detention of the applicant. In those proceedings, the issue of the intention of the arresting officer was relied upon in support of the relief claimed. Although the issue was agitated, the determination made by the judge hearing the applicant was that it was not relevant. So the position maintained by the applicant is that, for the purposes of the present proceedings, there is no reason why the issue might not be raised on the present application. 7 For present purposes, I put to one side issues of res judicata, Anshun estoppel and abuse of process as there are issues in the present proceedings as to the extent to which the previous determination by the Supreme Court of South Australia covers issues that are the subject of the present proceedings. So, I deal with the issue that the applicant seeks to raise on the assumption that the matter may be able to be raised in these proceedings. Nevertheless, it is apparent that the issue about the intention of the applicant and the relevance of that intention to the lawfulness of the detention of the applicant were matters that were very much to the fore in the minds of those who were acting for the applicant when the matter was before the Supreme Court. So much is accepted by counsel. Also, it is conceded by counsel for the applicant today, quite properly, that the issue in relation to the intention of the relevant officer is raised for the first time in these proceedings by the recently filed affidavit material and outline of submissions. 8 The position that has been adopted in this matter by Samoa (the country seeking to extradite the applicant) and the Commonwealth respondents is that any acceptance of the recently filed affidavit material of the applicant's solicitor, it being out of time in accordance with the court's directions, should be conditioned upon an order to the effect that prevents the applicant from raising any issues in relation to the state of mind of the arresting officer. 9 As the affidavit, in effect, seeks to amend the basis for the application, it is necessary to consider the issues that apply in relation to an amendment relatively late in the day. The relevant principles are conveniently summarised in Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098 by Gleeson J, then a member of this court, in the following terms at [125]-[128]: The applicable principles are well established. The Court's powers in rules 8.21(1) and 16.53 are broad. Consideration of whether to grant leave to amend must be undertaken in accordance with the overarching purpose set out in s 37M(1) of the Federal Court Act: Australian Competition and Consumer Commission v Jutsen (No 2) [2010] FCA 982 at [12]; Suzlon Energy Ltd v Bangad [2011] FCA 92; (2011) 196 FCR 259 at [19]; University of Sydney v ResMed Limited (No 5) [2012] FCA 232 at [14]; Bowen Energy Ltd v 2KD Drilling Pty Ltd [2012] FCA 275 at [8]. The onus is on the party seeking leave to amend to persuade the Court that such leave should be given: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17]. The principles articulated by the High Court in Aon apply to matters in this Court: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 ('Cement Australia') at [43]. Relevant matters the Court is to consider include: (1) The nature and importance of the amendment to the party applying for it: Aon at [102]; (2) The extent of the delay and the costs associated with the amendment: Aon at [102]; (3) The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102]; (4) The explanation for any delay in applying for that leave: Aon at [108]; and (5) The parties' choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 ('Luck') at [44]; (6) The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and (7) Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30]. The weight to be given to the considerations identified in Aon, individually and in combination, and the outcome of the balancing process, may vary depending on the facts in the individual case: Cement Australia at [51]. 10 The above principles are not in dispute. 11 In relation to the nature and importance of the amendment, it was said that the issue concerning the state of mind of the arresting officer is of forensic importance for the applicant. However, at best, as was accepted by counsel for the applicant, what is now proposed is a collateral challenge to the arrest within the context of the jurisdictional issues raised in relation to the detention of the applicant. 12 Otherwise, what is proposed to be opened up by this amendment is indicated by para 44 of the outline of submissions to be relied upon by the applicant at the hearing. It is expressed in the following terms: The conduct of the AFP nominee [that is the arresting officer] requires detailed consideration and further exploration in an evidential setting on a number of topics including her intention about whether to bring the applicant before a magistrate as required by s 15; when that was to occur; what she did in respect to that; what she did not do in respect to that; all of the matters relevant to his custody following arrest whilst in the custody of that police officer; the preparation of the Bench Charge Sheet; the purposes of doing so; the use of the materials; the processes to be used; the reasons for their use and the matters referred to relevant to that police officer [set out in the solicitor's affidavit]. 13 The above paragraph is expressed in terms that manifest an intention to pursue some form of forensic inquiry in relation to the state of that intention not just at the time of arrest, but during the course of the applicant's detention. Counsel articulated a case to the effect that the intention might have some significance for the jurisdictional challenges, although, with due respect, it is difficult to see how it might have significance for that application. 14 The significance of articulating the matter in that way is to expose the fact that what is now sought by the applicant is to open up a forensic inquiry which concerns the intention of the relevant officer not just at the time of arrest but during the course of the steps that were taken in relation to the extradition proceedings. It has the potential to be a significant inquiry as to factual matters, the limits of which are not presently known. As has been advanced in the course of submissions, there is and must be recognised to be the potential for the nature of those allegations to lead to the bringing in of a further party in the form of the relevant officer depending upon where the precise inquiries lead and the nature of the argument as finally articulated if these issues are to be further explored. 15 The forensic importance of the investigation and the issue that has been raised is not clearly articulated. With due respect, the nature of the ground and the way in which this matter may bear upon jurisdictional error is unclear, and what is really proposed is an ongoing forensic investigation in relation to the issue of the state of mind of the relevant officer. Having regard to that nature, there is, if the amendment was allowed, a risk to the relevant dates, given the fact that the respondents are now for the first time in a position to prepare their own material to respond to the application. If, indeed, there is to be this further issue investigated, then there is a need to consider whether to defer the timetable so that the respondent is in a position of knowing precisely what is put in support of the application before it provides its answering material with consequent delay and vacation of the hearing dates. 16 The final hearing of this matter is listed for 14 to 18 March 2022. Those dates were set aside on the express basis that the applicant was to indicate to the court when it would be ready, the court being in a position to be able to hear this application in October, November or December of last year (and the respondents pressing for the hearing at that time). Before the hearing there must be a reasonable opportunity for the respondents to answer the applicant's case, the legal basis for which has only now been articulated in any real sense in the form of the written submissions. Therefore, in my view, there is a very real concern that the pursuit of forensic steps concerning the additional factual issues that the applicant now seeks to raise as to the intention of the relevant officer and the consequential challenge to the validity of the arrest and the ongoing detention of the applicant will jeopardise the March hearing. That is a significant matter to be brought to account on the present application to amend. 17 Also, there has been a considerable unexplained delay in the sense that this matter was known to the applicant before the current proceedings were commenced. It was pursued by lawyers acting for the applicant (being his current lawyers) in other court proceedings related to the same issue that is now sought to be raised in the present court proceeding without any adequate explanation as to why that did not occur at an earlier time. 18 At a case management hearing on 16 August 2021, counsel for the applicant was asked to articulate whether the proceedings lead to an outcome that challenges the validity of the steps taken to arrest Mr Pauga. The answer provided contained no hint of a challenge to the arrest on the basis that the applicant now seeks to raise. Rather it pointed to an allegation about the lack of authority for the arrest warrant. There is no explanation as to why that position was taken in these proceedings with the applicant only now seeking to pursue forensic inquiries about the state of mind of the arresting officer and, so it would seem, issues about that state of mind during the course of detention of the applicant. 19 It is said by the applicant that because these proceedings involve a habeas corpus inquiry, the court should allow the amendment to ensure that all relevant matters are investigated. The court, of course, approaches these proceedings with that kind of overall perspective, but the applicant has been given ample opportunity in which to articulate its case. In fact, there have been a series of indulgences and extensions granted to the applicant in order for it to be able to identify what matters ought to be the subject of inquiry. In particular, it was given an opportunity in order to seek discovery and make further use of the forensic procedures available to the court, and it has not done so in respect of the issue that it now seeks to raise. 20 In short, for reasons that have been given there is a risk that the proposed new issue, the forensic importance of which is not readily identified, will lead to the possibility of the hearing being adjourned. There is also, in my view, unexplained delay in relation to the application. The nature of the claim that is sought to be made is not articulated with any clarity. Further, this matter has been conducted up until this point in time on the basis that there was no issue in these proceedings concerning the arrest. 21 For those reasons the application in relation to the amendment sought by being able to receive the affidavit of Mr Finlayson of 19 January 2022 should be conditioned on the basis that a ground to the effect that the arrest of the applicant was unlawful and his ongoing detention was beyond jurisdiction by reason of the intentions of the arresting officer is not able to be advanced in the proceedings, and I will make an order on this application accordingly. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.