Balderrama v Commissioner of the Australian Federal Police

[2001] FCA 821

FEDERAL COURT OF AUSTRALIA

Balderrama v Commissioner of the Australian Federal Police [2001] FCA 821

FRANCISCO JAVIER RIOS BALDERRAMA & ANOR v COMMISSIONER
OF THE AUSTRALIAN FEDERAL POLICE & ORS

N383 OF 2001

EMMETT J
8 JUNE 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 383 OF 2001

BETWEEN:

FRANCISCO JAVIER RIOS BALDERRAMA
FIRST APPLICANT

EDUARDO ARMANDO GARCIA QUIROZ
SECOND APPLICANT

AND:

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
FIRST RESPONDENT

UNITED STATES OF AMERICA
SECOND RESPONDENT

MAGISTRATE LESLIE BRENNAN
THIRD RESPONDENT

COMMONWEALTH ATTORNEY GENERAL
FIFTH RESPONDENT

COMMISSIONER FOR CORRECTIVE SERVICES
SEVENTH RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

8 JUNE 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants pay the respondents’ costs of the proceedings including the costs of today. 

3. Order 1. be stayed up to and including 24 July 2001.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 383 OF 2001

BETWEEN:

FRANCISCO JAVIER RIOS BALDERRAMA
FIRST APPLICANT

EDUARDO ARMANDO GARCIA QUIROZ
SECOND APPLICANT

AND:

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
FIRST RESPONDENT

UNITED STATES OF AMERICA
SECOND RESPONDENT

MAGISTRATE LESLIE BRENNAN
THIRD RESPONDENT

THE COMMONWEALTH ATTORNEY GENERAL
FIFTH RESPONDENT

COMMISSIONER FOR CORRECTIVE SERVICES
SEVENTH RESPONDENT

JUDGE:	EMMETT J
DATE:	8 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 10 May 2001, I ordered that the applicants provide security jointly in the sum of $10,000 for each of the first, second and fifth respondents.  I ordered that the security be furnished within 21 days from that date in a form satisfactory to the Registrar and stood the matter over for further directions today.  It appears to be common ground that the security has not been provided in accordance with the directions that I gave.

2. The first, second and fifth respondents ask that the proceedings now be dismissed having regard to the failure to provide security.  I have been informed that the extradition proceeding with which this proceeding is connected is listed for hearing before a magistrate on 20 and 23 July 2001.  Counsel for the applicants has requested that I defer making any order of dismissal for several months.  No explanation has been offered as to why the matter should be deferred in that way.  There is no evidence to explain what steps, if any, have been taken by the applicants to provide security.

3. It is not suggested that there would be any prejudice to the respondents by the adjournment of the proceeding.  Nevertheless there is no reason for the proceeding to stay on foot if it is not going to be prosecuted.  My view is that the appropriate order is that the proceeding be dismissed.  However, I order that that order be stayed until 24 July 2001.  So far as I am concerned, there is no further need for any further hearing to be listed in the matter.  I had contemplated fixing the matter for further mention on 27 July 2001.  However, if the stay expires in ordinary course, that would be the end of the matter and there would be no need for the parties return before this Court. 

4. Whether the applicants choose to file any further motion is a matter for them.  The applicant should pay the costs of today and the costs of the proceedings to date.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             3 July 2001

Counsel for the Applicant:	Mr F Santisi
Solicitor for the Applicant:	Mary Salama
Solicitor for the First & Fifth Respondent:	Australian Government Solicitor
Solicitor for the Second Respondent:	Commonwealth Department of Public Prosecutions
Date of Hearing:	8 June 2001
Date of Judgment:	8 June 2001