Phong v Attorney-General for the Commonwealth

(d) the Supreme Court of the State or Territory in which the prosecution or appeal is before a court is invested with, or has conferred on it, jurisdiction with respect to any such matter." 16 Mr Bell contended that in this proceeding the applicant is a person who is a defendant in a prosecution for an offence against a law of the Commonwealth before a court of a State and who is seeking an injunction against an officer of the Commonwealth in relation to a related criminal justice process decision. 17 Section 39B(3) of the Judiciary Act 1903 (Cth) defines "related criminal justice process decision", so far as is material, as follows: "related criminal justice process decision, in relation to an offence, means a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including: (a) a decision in connection with the investigation, committal for trial or prosecution of the defendant;" 18 Mr Bell submitted that an injunction is sought by the applicant in relation to the prosecution of the applicant as a defendant in the County Court of Victoria. Mr Lorkin supported Mr Bell's submissions on this issue. 19 In Clarke v Director of Public Prosecutions [2000] FCA 849, (2000) 99 FCR 294 ("Clarke") Moore J held that jurisdiction under s39B of the Judiciary Act was not properly invoked in circumstances where prohibition and an injunction were sought to restrain the Director of Public Prosecutions from maintaining a prosecution against the applicant in that proceeding. 20 At [17] his Honour said: "...while the precise legal character of the act or conduct which is sought to be impugned is not entirely clear, it is nonetheless palpably clear from the application that the act or conduct concerns a decision in connection with the prosecution of the applicant which is a "related criminal justice process decision" as defined in s39B(3) of the Judiciary Act ..." 21 The relief sought in paragraph 10 of the application seeks to restrain the prosecution of the applicant in respect of the 2001 Indictment. I agree with the approach of Moore J in Clarke, and consider that s39B(1C) of the Judiciary Act when read together with s39(3) of that Act, deprives the Court of whatever jurisdiction it may otherwise have had to deal with the current application under s39B(1) of the Act. 22 Section 39B(1D) of the Judiciary Act does not alter this position as the relevant criminal justice process decision occurred before the filing of the application in this matter. Section 39B(1D) of the Act provides as follows:

24 The difficulty with that submission is that s39B(1A)(c) of the Judiciary Act excludes from the Court's jurisdiction "a matter in respect of which a criminal prosecution is instituted". I consider that the application before the Court raises for consideration the validity of the prosecution of the applicant, which is soon to progress to the trial stage before the County Court. The words "in respect of which" suggest a connection between the "matter", that is the justiciable controversy, and the criminal prosecution. That connection is undoubted in the instant circumstances. One only needs to consider the nature of the relief sought at paragraphs 5, 7, 8 and 9 of the application to establish that point. 25 Mr Monotti requested the Court to focus on the relevant matter being the Extradition Act and the alleged failure of some of the respondents to comply with s42 of that Act. He submitted that the essential challenge was one made to the extradition process rather than in respect of a criminal prosecution. I reject that submission. The criminal prosecution of the applicant in the County Court with respect to the 2001 Indictment is challenged by the application in this matter. It is unnecessary to consider whether the Court is deprived of what jurisdiction it might have otherwise possessed as a result of the presence of the words "or any other criminal matter" in s39B(1A) of the Judiciary Act. 26 Mr Monotti submitted that the Court had inherent jurisdiction to deal with the application to prevent an abuse of the Court's processes. The Court does have power (as distinct from jurisdiction) pursuant to s23 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") to ensure the effective exercise of jurisdiction it otherwise possesses; see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at [35] ("Patrick Stevedores"). The Court does not otherwise possess inherent jurisdiction per se; see Jackson v Stirling Industries (1987) 162 CLR 612 at 630. In any event, Mr Monotti did not identify the processes of the Court that he alleged were being abused. 27 Reliance to found jurisdiction was also placed by Mr Monotti on ss 21 and 23 of the Federal Court Act. However, those sections confer power on the Court as distinct from jurisdiction. See Patrick Stevedores at [27]. 28 Mr Monotti also placed reliance on the accrued jurisdiction of the Court. However, as Mr Bell submitted, the accrued jurisdiction is not available where there is no arguable substantive jurisdiction to which the accrued jurisdiction can be attached. In other words there is no relevant federal sub-stratum to provide any operation for the Court's accrued jurisdiction. 29 Accordingly, in my view this Court is devoid of jurisdiction to entertain the application before it. The application must be dismissed with costs. I note that I have not found it necessary to consider Mr Lorkin's submission that the matters raised by the applicant are res judicata by reason of the orders of the Court of Appeal or whether the applicant is estopped from bringing the application by reference to the principle discussed in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. The order of the Court is as follows:

(2000) 99 FCR 294

(1998) 195 CLR 1

(1987) 162 CLR 612

(1981) 147 CLR 589