Todhunter v United States of America

REASONS FOR JUDGMENT The Republic of South Africa ("the Republic") has applied to the Court under s 21(1) of the Extradition Act 1988 (Cth) ("the Act") to review the order of Ms Helen Syme, the second respondent, a magistrate, determining that Mr Dutton, the first respondent, was not, in relation to an extradition offence, eligible for surrender to the Republic and, in consequence, that he be released from detention. At the request of the parties, pursuant to O 29 r 2, I made orders for the determination of four questions before the trial in the proceedings. The four questions, not all of which are completely independent of each other, are as follows: (1) Whether material sought to be tendered before the second respondent but rejected by her is material included within the words "material that was before the magistrate" in s 21(6)(d) of the Act. (2) Whether the Court, on a review under s 21 of the Act, can determine for itself whether the person whose extradition is sought is eligible for surrender. (3) Whether the Court has power to remit the application by the applicant for the extradition of the first respondent to the second respondent for rehearing and determination. (4) Where, as a result of the rejection of evidence sought to be adduced by the applicant, there was insufficient evidence to satisfy the "sufficient evidence" test made applicable to the proceedings by the Extradition (Republic of South Africa) Regulations and the first respondent placed no material before the second respondent in relation to the matters referred to in s 19(2)(d) of the Act and the second respondent made an order under s 19(10) of the Act, the Court has power to review that order pursuant to s 21 of the Act. I formed the view that it would be useful to have these questions determined before the trial because they involved pure points of law, depended upon facts not in dispute and, if answered, at least in a certain way, operated to resolve the issues between the parties. For the purposes of the determination of these questions, the parties tendered, by agreement, a statements of facts and issues. So far as relevant, the facts may be stated as follows. Mr Dutton was arrested in Johannesburg on 28 December 1989. He contended that his arrest was illegal. He was released on 17 February 1990, but subsequently rearrested the next day. A trial on an indictment, containing fourteen counts of fraud, commenced in the Supreme Court of South Africa on 27 January 1992. That trial is part heard. The prosecution closed its case at the end of 1993. Mr Dutton commenced to testify in his own defence but left South Africa whilst still under cross-examination. He contended he was not receiving a fair trial. A warrant for his arrest issued on 7 February 1994 from the Supreme Court of South Africa. On 3 October 1995 the Republic requested Mr Dutton's extradition from Australia to South Africa. The request was considered and a warrant under s 12(1) of the Act issued out of the St James Local Court, in Sydney, on 4 October 1995. On 24 November 1995 Mr Dutton was arrested and taken into custody. On 18 November 1996 extradition proceedings under s 19 of the Act commenced before a magistrate at Central Local Court, Liverpool Street, Sydney. In the course of the hearing, the learned magistrate ruled that some twenty volumes of documents were authenticated as required by s 19(7) of the Act and were admissible in that proceedings pursuant to s 19(6) of the Act. However, the learned magistrate ruled that this material could not be accepted into evidence to prove satisfaction of the "sufficient evidence" test required to be satisfied as a result of the Extradition (Republic of South Africa) Regulation 5(5) because the provisions of the Evidence Act 1995 (NSW) were not satisfied. There is dispute between the parties as to whether there was agreement as to this Ruling. Subsequently, on 27 and 29 November 1996 the learned magistrate ruled inadmissible the transcript of the evidence of part of the trial of Mr Dutton which had been annexed to an affidavit of a Mr De Villiers as the transcript did not comply with the provisions of s 65(6) of the Evidence Act. Certain other transcript was, for the same reason, rejected. It seems to have then been accepted by those advising the Republic that, in consequence of the rejection of this evidence, the Republic had not proved the matters set out in s 11(5) of the Act, otherwise referred to as the "sufficient evidence" test. The Republic offered no further evidence and the learned magistrate accordingly ordered that Mr Dutton be released from custody determining on such evidence as there was before her that he was not, in relation to the extradition offences alleged against him, eligible for surrender to the Republic. It is said on behalf of Mr Dutton that there was evidence which in the ordinary course would have been adduced on his behalf that there existed what the Act refers to as "an extradition objection": see s 19(2)(d) and s 7 of the Act. However, because the magistrate had rejected the evidence adduced by the Republic and the evidence before the magistrate did not therefore satisfy the "sufficient evidence" test counsel for Mr Dutton refrained from seeking to go into evidence on the matter of the extradition objection. The Republic duly appealed to this Court under s 21 of the Act. That section provides as follows: "(1) Where a magistrate of a State or Territory makes an order under subsection 19 (9) or (10) in relation to a person whose surrender is sought by an extradition country: (a) in the case of an order under subsection 19(9) - the person; or (b) in the case of an order under subsection 19(10) - the extradition country; may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court, or to the Supreme Court of the State or Territory, for a review of the order. (2) The Court may, by order: (a) confirm the order of the magistrate; or (b) quash the order and direct a magistrate to: (i) in the case of an order under subsection 19(9) - order the release of the person; or (ii) in the case of an order under subsection 19(10) - order, by warrant in the statutory form, that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5). (3) The person or the extradition country, whether or not the person or country was the applicant for review under subsection (1), may appeal to the Full Court of the Federal Court from the order of the Federal Court or the Supreme Court. (4) The person or the extradition country is not entitled to appeal to the Full Court more than 15 days after the day on which the order of the Federal Court or the Supreme Court is made. (5) The High Court shall not grant special leave to appeal against the order of the Full Court made on the appeal referred to in subsection (3) if the application for special leave is made more than 15 days after the day on which the order of the Full Court is made. (6) Where the person or the extradition country: (a) applies under subsection (1) for a review of an order: (b) appeals under subsection (3) against an order made on that review; or (c) appeals to the High Court against an order made on that appeal; the following provisions have effect: (d) the court to which the application or appeal is made shall have regard only to the material that was before the magistrate; (e) if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released - the court to which the application or appeal is made may order the arrest of the person; (f) if: (i) because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has not been released; or (ii) the person has been arrested under an order made under paragraph (e); the court to which the application or appeal is made may: (iii) order that the person be kept in such custody as the court directs; or (iv) order the release on bail of the person on such terms and conditions as the court thinks fit; until the review has been conducted or the appeal has been heard; (g) if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences - the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences". It can be inferred from the statement of facts that the Republic wishes to challenge in this Court the rejection by the magistrate of the evidence concerning the "sufficient evidence" issue. It wishes, if successful in maintaining that the evidence was wrong rejected, to have this Court then remit the application to the magistrate for rehearing. The advisers to Mr Dutton say that the Court has no power, having regard to the express terms of s 21, to make an order setting aside the magistrate's order on the one hand, but, on the other, not making one of the orders referred to in s 21(2)(b), but rather directing the magistrate to hear and determine the proceedings on the evidence then properly before her. It is this matter which has given rise to the third question. The first two questions arise as a preliminary to this third question. There was no disagreement between the parties as to the correct answer to the second question. It was agreed that the provisions of s 21(6)(d) should be given a broad meaning so that the words "material that was before the magistrate" should not be restricted merely to the material which the magistrate accepted in evidence, but extended to material which either party sought to tender but the tender of which the magistrate rejected. I think that the parties are correct in reaching agreement on the answer to this question. The second question is more difficult. It raises the nature of the review which the Court is required to undertake when its jurisdiction is enlivened by an application under s 21(1). Without wishing yet to pre-empt the conclusion, it may be noted that two possibilities arise. First, the review may be supervisory, that is the exercise of a power of judicial review so that the Court does not itself determine whether the person is eligible for surrender in relation to the relevant extradition offence or offences, but only whether the magistrate has committed some error. The alternative is that the Court itself determines, on a review, the issue of eligibility for surrender. The significance of the question is that if the jurisdiction of the Court extends beyond judicial power to considering the merits of the case, in the sense of determining whether the person is eligible for surrender, then the argument that the jurisdiction of the Court does not extend to ordering a rehearing is strengthened. The final question stands separately from the other three. It will have been noted from the statement of facts that the consequence of the magistrate rejecting the evidence tendered on the "sufficient evidence" question was that the Republic's case could not succeed. Counsel for Mr Dutton had thus no need to tender before the magistrate evidence going to the question whether there was an extradition objection in relation to the offence. The only order that the magistrate could make once the evidence was rejected was the order the magistrate did make, namely to release Mr Dutton from detention. However, if the third question is answered to the effect that the Court has no jurisdiction to remit the proceedings to the magistrate and because the review in this Court is restricted as a result of s 21(6)(d) to the material that was before the magistrate, this Court, if it exercises a jurisdiction to determine for itself whether Mr Dutton was eligible for surrender, will have no evidence before it upon which to determine whether there was an extradition objection. Prima facie, therefore, if no jurisdiction exists to refer the matter back to the magistrate, but if this Court were to be of the view that the magistrate erred in rejecting the evidence tendered, the consequence would seem to be that this Court would be forced to determine that Mr Dutton was eligible for surrender and thus to make an order under s 21(2)(b) that he be committed to prison to await surrender without there being any opportunity for the Court to consider whether there was a valid extradition objection. Counsel for Mr Dutton submits that there is an alternative construction of the legislation, namely that in the circumstances which happened the right to appeal to this Court under s 21 never arose. The consequence of this argument succeeding would be that whether or not the magistrate wrongly rejected the evidence, Mr Dutton could no longer be surrendered for extradition and this Court could never consider the question whether the magistrate wrongly rejected the evidence tendered. I turn now to deal with the questions in dispute. Question 2 - Whether the Court on review can determine for itself whether the person whose extradition is sought is eligible for surrender The nature of the review contemplated by s 21 of the Act has not been the subject of any concluded view. In Zoeller v Federal Republic of Germany (1989) 23 FCR 282 a Full Court of this Court (Lockhart, Gummow and Hill JJ) said (at 292): "The proceedings before Einfeld J were for a 'review' of the order of the magistrate, ... It is unnecessary for the purposes of this case to determine comprehensively what is contemplated by the 'review', by reference to which s 21 of the Act defines the jurisdiction of this Court. It is sufficient to say that it would be going beyond 'review' for the Court to entertain a complaint in respect of the receipt by the magistrate into evidence of the translation here in question. Given that before the magistrate the appellant had not objected to the document as a translation, how can he then have this Court "review" what happened in this regard before the magistrate?" Zoeller's case is thus authority for the proposition that in a review the Court will not consider points not taken before the magistrate. But the case leaves open the wider question of the general nature of the review. The matter was mentioned briefly by another Full Court in Kainhofer v Director of Public Prosecutions (1994) 52 FCR 341 at 360. In that case Neaves, Olney and Cooper JJ identified the order the subject of a review under s 21(1) as being the order made under s 19(9) that the person be committed to prison or the order under s 19(10) that the person be released, as the case may be. At 361, after setting out various sections of the Act, their Honours continued: "In our opinion, the effect of these provisions is that, on the hearing of a review for which the person ordered to be committed to prison under s 19(9) has applied, the question for the Court is whether the person is eligible for surrender to the extradition country in relation to any of the offences in relation to which surrender is sought by that country and not the more limited question whether the person is eligible for surrender in relation to the offence or offences in relation to which the magistrate has determined that the person is so eligible. The circumstance that the Act provides for the review of the magistrate's order and not for an appeal for that order is significant in this regard." In the result their Honours were of the view that the Supreme Court had taken too narrow a view in concluding that it was limited to considering the question of whether Ms Kainhofer was eligible for surrender solely by reference to the offences in relation to which the magistrate had determined her to be so eligible. That case was subsequently appealed to the High Court. The appeal is reported at (1995) 70 ALJR 117 but the subject matter of that appeal has no relevance to the present question. The matter came again before a Full Court of this court, differently constituted, in Kainhofer v Director of Public Prosecutions (unreported, Lockhart, Hill and Kiefel JJ, 17 September 1996). On the question of the nature of review the Court said (at 22): "The review is a review of the relevant order in this case, the order that Ms Kainhofer be committed to await surrender. But the issue on the review is not limited to the question whether Ms Kainhofer should be committed for surrender only in respect of the four counts found to constitute double criminality. The word 'review' is not a word of limitation; it is a word of great width. The word may have different meanings depending upon its context: cf Re Brindle; Ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506 at 509-10. In the present context, it involves a judicial re-examination of the decision by the magistrate, limited to the material before the magistrate. But there is no reason to restrict the review to a consideration of whether the warrant for surrender should be made in respect only of the offences found to constitute ingredients of double criminality." Their Honours then repeated with approval what had been said previously on this question by the earlier Full Court. Some consideration of the nature of the review was also given by a Full Court comprising Black CJ, Gummow and Lindgren JJ in Todhunter v United States of America (1995) 57 FCR 70. In that case their Honours referred to what had been said by the first Full Court in Kainhofer and (at 80-81) said: "It will be observed that s 21(1) of the Act speaks of an application 'for a review' by a court of the order made by the magistrate. The expression 'review' when used to identify the exercise of the judicial power of the Commonwealth in respect of an administrative decision, is not without its difficulties. They have been recently discussed by the High Court in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. At 261, Mason CJ, Brennan and Toohey JJ said that what emerged from the judicial decisions and from statutes was that 'review' has no settled pre-determined meaning; it takes its meaning from the context in which it appears. Here, that context is augmented by s 21(2). ... On an application for review under s 21(1), as upon an appeal to this Court under s 21(3), and upon a further appeal by special leave of the High Court, s 21(6)(d) has effect. It states that the court to which the application or appeal is made 'shall have regard only to the material that was before the magistrate'; cf Zoeller at 292. This, then, gives further content to the notion of 'review' for which provision is made in s 21(1). The restriction in s 21(6)(d) has particular point in light of the restriction which governs the conduct of the proceedings before the magistrate, as provided by s 19(5). This states: 'In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.'" As the passage in Brandy, to which the Court in Todhunter makes reference, demonstrates, review may signify judicial control of administrative action or administrative review of an administrative decision or the grant of original jurisdiction to exercise Federal judicial power. It may involve the Court reviewing all issues of fact and law proceeding by way of a hearing de novo, it may involve the hearing of new evidence or be restricted to the evidence before some other tribunal. As these cases show, the context in each case will be determinative. Here, as the passages to which reference has already been made indicate, the following matters provide the context from which the nature of the review is to be determined: (1) The history of the 1988 Act demonstrates that rather than the proceedings before the magistrate being somewhat like a committal hearing to determine whether a prima facie case existed for extradition, s 19 of the Act contemplates that the magistrate will make a determination on the papers. Thus, the person to whom the proceedings relate is not entitled to adduce, and the magistrate may not receive, evidence in support of a submission that the person did not do that which is alleged of him: s 19(7). The magistrate will be confined to the material adduced on behalf of the country requesting extradition (subject to the issue of whether there is an extradition objection or, perhaps, the "sufficient evidence" question). Practically, in most cases regard will be had only to the duly authenticated statement in writing setting out the alleged conduct constituting the relevant offence. Matters tending to go to the innocence of the alleged offender are irrelevant: s 19(5). (2) Section 21(6)(g) adverts specifically to the possibility that the review court may determine that the relevant person is eligible for surrender. From this it may be concluded that the Court undertaking the review is itself authorised to determine eligibility for surrender or not. (3) The subject matter of the review is the order made by the magistrate under s 19(9) or s 19(10). In undertaking the review the Court will be limited to the material before the magistrate. It may well be, as is suggested in Todhunter, that where an allegation of bad faith or one of the other matters discussed in Deputy Commissioner of Taxation Cth v Richard Walter Richard Pty Ltd (1995) 183 CLR 168 at 178-9 are raised, the Court might be entitled to go outside the constraint of s 21(6)(d). However, no suggestion of such matters arises here. From these matters it seems to me clear that the review contemplated by s 21 is not a species of judicial review in the sense of a review limited to correcting legal error. It is a rehearing in which the court undertaking the review is authorised to reach its own conclusions on eligibility for surrender, but a rehearing which is limited statutorily to the material before the magistrate. Fresh evidence it would seem would not be admissible. This is hardly likely to cause difficulty since the hearing before the magistrate, the subject of the review, is, in any event, largely a hearing on documentary material. The question does not arise here whether the Court could act on an accusation of denial of natural justice before the magistrate. Such an accusation would involve evidence as to the conduct of the proceedings before the magistrate and would thus, of necessity, involve matters not themselves being material before the magistrate. The answer may well be that such a matter could only be raised on an application for judicial review under the Administrative Decision (Judicial Review) Act 1977 (Cth), but not on a review under s 21 of the Act. In any event, it does not arise for decision in the present context. Question 3 - Whether the Court has power to remit the matter to the magistrate for further hearing Section 21(2) is quite explicit. It specifies the orders which the Court is empowered to make. Prima facie, subs 2, like subs 1, constitutes part of the conferral of the jurisdiction upon this Court to review the order of a magistrate. So seen, the conferral of powers to make specific orders operates to exclude the power to make other substantive orders, such as the order presently sought, namely an order referring the matter back to the magistrate. The contrary view is that the conferral of jurisdiction upon the Court implicit in subs 1, carries with it by necessary implication all that needs be done to enable the Court to exercise that jurisdiction: Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (1987) 14 FCR 461 at 466 per Gummow J, Australian Securities Commission v Melbourne Asset Management Nominees Pty Ltd (1994) 121 ALR 626 at 638 and Parsons v Martin (1984) 5 FCR 235 at 240-241. As the last mentioned case points out, it is wrong to speak of the inherent jurisdiction of a statutory court such as the Federal Court. However, the application of the ordinary rules of statutory construction may lead to the conclusion that the Court has such powers as are incidental and necessary to the exercise of its jurisdiction. Whether it does, however, involves a question of construction, particularly having regard to the context of the conferral of jurisdiction: cf CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618 at 634-5, per Brennan CJ, Dawson, Toohey and Gummow JJ. I was referred to the decision of Toohey J in Ex parte Hicks (1991) 65 ALJR 398 by way of illustration of the implication of a power in the Court in the context of extradition. The question for decision in that case was whether on an appeal to a full court of this Court the full court could order a rehearing. The case was one to which s 34 of the Act applied (ie it concerned a New Zealand warrant). Section 35(4) of the Act provided for an appeal to a Full Court of this Court from the order of a single judge. There was no specific power in s 35 conferred upon a full court to order a rehearing. It was argued, therefore, that no power to order a rehearing existed. In rejecting this argument, Toohey J said (at 399): "I do not accept the applicant's contention. It is true that s 3(a) of the Act expresses one of its principal objects to be, 'to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand'. And, in that sense, it may be assumed that the Act is exhaustive as to the proceedings by which a person may be extradited. But that is not to say that when the Act provides for an appeal to the Full Court of the Federal Court or a Supreme Court, it is exhaustive as to the procedures to be followed and the orders that may be made when a matter is appealed to one of those courts. In the same way, 35(5) prescribes a time limit within which an application for special leave to appeal may be made to this Court, but says nothing as to the procedures to be followed, or the orders that may be made by this Court. The reasons is clear enough. Once a matter has been reviewed by a judge, pursuant to s 35(1) and (2) of the Act, a right of appeal to a Full Court exists by reason of s 35(3), but the powers exercisable by such a court are to be found in the statute which establishes it and regulates its powers. Indeed, if that were not so, it might well be said that a Full Court has no power even to dismiss or allow an appeal, for no such powers are mentioned in the Act." His Honour then referred to s 28 of the Federal Court of Australia Act 1976 (Cth) where the powers of a full court include power to order a rehearing and relied on that section to authorise the granting of an order for a rehearing. Hicks is the complete opposite of the present case. Section 35 conferred jurisdiction upon a full court to hear and consider an appeal from a single judge but was silent as to the powers to be exercised. It is clear, therefore, that by necessary implication the vacuum had to filled and the source for so doing was in the Federal Court of Australia Act. However, in the present case there is no vacuum. The legislature has been specific. It may be said that the conferral of jurisdiction and powers in exercising that jurisdiction come together in the terms of ss 21(1) and (2). But even if s 21(2) is to be read independently of s 21(1), that is to say as the grant of a power rather than as part of the conferral of jurisdiction, the same result follows. Before an implication of power in a statutory court will be made, the implication must be such as to be necessary. In Hicks there was necessity, for otherwise there was a vacuum. While the implication of a power in the Court will not be limited to those circumstances in which there is a legislative vacuum, there can be no implication where that would bring about inconsistency. A Full Court of this Court in Landsal Pty Ltd v REI Building Society (1993) 113 ALR 643 at 650 expressed the position to be: "... a court may exercise its inherent or implied powers in a particular case, even in respect of matters that are regulated by a provision of a statute or rules of court, so long as it can do so without contravening any such provision..." In my view, having regard to the terms of s 21 and the context in which it appears, a power in the Court to remit a matter to a magistrate is neither necessary nor consistent with the legislative scheme. As I have sought to make clear in the discussion on the earlier questions posed, the power of the Court to review a magistrate's decision is a narrow one. Although in the nature of a rehearing the Court is not entitled to consider any matters other than those before the magistrate. But the issue before the magistrate itself was a very limited one. It was the determination of eligibility for surrender a question which (and I leave for subsequent determination any issue arising under s 19(2)(d)) which (subject, perhaps, to the "sufficient evidence" matter) will be determined, not by reference to the taking of evidence but by reference to the supporting documents which have been produced to the magistrate. Once due authentication is proved, it is the obvious contemplation of the legislation that the question of eligibility for surrender will be determined by reference to the material in those supporting documentations taken, for the purposes of those proceedings, to be admissible: s 19(6). Indeed, as I have already pointed out, the person whose surrender is sought is not entitled to adduce evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender is sought: s 19(5) of the Act. Given therefore the very limited nature of the issue before the magistrate and the fact that additional material is not to be adduced on an appeal, it is easy to see why the legislature thought it sufficient to state the powers of the Court on an appeal as involving only either that of confirming the order of the magistrate or the quashing of that order with one or other of the directions in s 21(2)(b). I note that a similar view of the construction of the section was taken by Einfeld J in Zoeller v Republic of Germany (1989) 90 ALR 555 (at 563) at first instance. However, the comments made by his Honour were in the context where no argument had been addressed to him so his Honour should not really be treated as having decided the matter. Similarly, the comments made by a Full Court of this Court in Papazoglou v The Republic of the Philippines (unreported, Wilcox, Tamberlin and Sackville JJ, 17 April 1997) to the effect that the powers of the Court on appeal are limited to confirming the magistrate's order or quashing it with the appropriate directions (see at 64) would seem to be dicta, not directly relevant to the matter in dispute between the parties, although, nevertheless persuasive. I am accordingly of the view that, having regard to the context of the review which the Court is required to undertake and the specific terms of s 21(2) of the Act, the Court has no power to make an order remitting the matter to the magistrate for rehearing. Question Four It will be appreciated that the present case is somewhat unusual. In the ordinary course the State seeking extradition would adduce all relevant evidence as would the person whose extradition is sought. In any review that followed, therefore, there would be before the Court for the purposes of the review all the evidence that the parties considered material. The fact that the Court was confined to the evidence before the magistrate would thus cause no real hardship. It would merely have the consequence that the parties would be bound by the way they had presented the case to the magistrate so that if later they were of the view that further evidence was discernible, they could not complain because they had the opportunity to put all relevant evidence before the magistrate at first instance. In the present case the person whose extradition is sought has not adduced evidence going to an extradition objection which he claims to have. He did not do so because the Crown had truncated its case after the magistrate had ruled on the inadmissibility of the material tendered. He says, with some force, that if the Court is confined to the evidence before the magistrate and has no power to remit the case to the magistrate for further hearing, he will not have the opportunity to put in evidence and, therefore, to argue the extradition objection which he believes is available to him. He seeks to counter this result by submitting that unless and until he has the opportunity to put to the magistrate evidence and submissions going to the extradition objection, the Court's power to conduct a review has not been enlivened. The consequence, were this view to be accepted, would be that the Court would have no jurisdiction to embark upon the review, but seemingly also, that the magistrate, having made orders under s 19(9), would be functus officio. The magistrate's orders would thus stand and, irrespective of any error that the magistrate may have committed, Mr Dutton would have the benefit of the magistrate's orders and go free. In my view, the argument put for Mr Dutton is untenable. The Act is clear. There has been a hearing before the magistrate. At the conclusion of that hearing the magistrate made orders under s 19(10) that Mr Dutton was not eligible for surrender and should be released. It is the making of that order which triggers the right of the party dissatisfied to apply to the Court for review. The jurisdiction of this Court is not negated by proof that an argument that might otherwise have been put to the magistrate was not put. The Act proceeds on the basis that in the proceedings before the magistrate both parties will put all relevant evidence for the magistrate to consider. Each party will be bound by the way it conducts its case. Provided that each party puts to the magistrate all relevant evidence, then the Court will have before it all the material it will need to review the magistrate's orders. It is not difficult to see how the present problem has arisen. Those advising Mr Dutton were perhaps beguiled by the failure of the Republic to call any further evidence and to concede that the only order open to the magistrate was one in favour of Mr Dutton into not tendering evidence of the matters going to the extradition objection. Mr Dutton's legal advice may have been wrong. The matter most likely went by default once the Republic, in effect, capitulated. It is highly likely that Mr Dutton's legal advisers gave no consideration to the issues that could arise in the event of an appeal. But this does not lead to the conclusion that the Court's power to review never arises. The magistrate made orders in accordance with s 19(9). Within fifteen days of the making of those orders the Republic applied to this Court as it was entitled to do under s 21(1) of the Act. Thereafter the Court had jurisdiction, unaffected by the fact that no evidence had been adduced on behalf of Mr Dutton of matters going to the extradition objection. I would accordingly answer the questions raised as follows: (1) Yes (2) Yes, but in so doing the Court is restricted to a consideration of the material that was before the magistrate. (3) No (4) Yes It has been agreed between the parties that the costs of the hearing devoted to the preliminary questions will be costs in the proceedings. I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill