Birch, Clive Burris v Commonwealth of Australia

[1998] FCA 462

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE  -  application for leave to file and serve a notice of appeal out of time  -  no special reasons shown for leave to be given.

Extradition Act 1988 (Cth) ss 40, 55
Judiciary Act 1903 (Cth) s 39B
Law and Justice Legislation Amendment Act 1997
Extradition Act 1989 (UK) ss 7(2)

Federal Court Rules O 9, r 7; O 20, rr 1, 2; O 52 rr 2,10, 15, 15(2)

Jess v Scott (1986) 12 FCR 187 applied
General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125 applied

CLIVE BURRIS BIRCH v COMMONWEALTH OF AUSTRALIA
WAG 156 OF 1997

LEE J
PERTH
5 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 156 OF 1997

BETWEEN:	CLIVE BURRIS BIRCH Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	LEE J
DATE OF ORDER:	5 MAY 1998
WHERE MADE:	PERTH

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 156 OF 1997

BETWEEN:	CLIVE BURRIS BIRCH Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	LEE J
DATE:	5 MAY 1998
PLACE:	PERTH

REASONS FOR JUDGMENT

The applicant has applied under O 52 r 2 of the Federal Court Rules (“the Rules”) for leave to file and serve out of time a notice of appeal from a judgment of a judge of this Court (French J). The judgment ordered that an application filed by the applicant seeking damages against the respondent (“the Commonwealth”) be dismissed.

The applicant, not then nor now represented by a legal practitioner, commenced a proceeding in this Court against the Commonwealth in August 1997 by filing an application and affidavit in lieu of a statement of claim. The applicant claimed damages for breach of statutory duty, negligence and unlawful imprisonment.

In September 1997 the Commonwealth filed a conditional appearance “reserving to itself the right to argue lack of jurisdiction of the Court”. On the same day it filed a motion under O 9 r 7 and O 20 r 2 of the Rules seeking an order under O 9 r 7 setting aside the originating process or, alternatively, an order under O 20 r 2 dismissing the application for, inter alia, disclosing no reasonable cause of action.

The material facts relied upon by the applicant, as set out in the affidavit filed in lieu of a statement of claim, concerned the arrest of the applicant in the United Kingdom in November 1990 and detention thereafter pursuant to a request made by the Commonwealth under the Extradition Act 1989 (UK) (“the UK Act”) that the United Kingdom surrender the applicant to Australia as an extraditable person. In August 1991 an order was made by a magistrate under the UK Act that the applicant be surrendered to Australia in the custody of officers of the Commonwealth. The applicant was returned to Australia in August 1991. In 1992 he was tried in the District Court of this State and convicted of the offences for which his surrender had been sought.

It was the applicant’s case that copies of warrants for his arrest issued by a justice of the peace in the State of Western Australia in January 1989 were not served on him as required by s 7(2) of the UK Act. The applicant claimed that failure to comply with the requirements of the UK Act constituted a breach of a statutory duty imposed on the Commonwealth. Further, by implication, the applicant claimed that the Commonwealth owed a duty of care to the applicant to ensure that the terms of the UK Act were observed.

The authority to make a request for the surrender of a person to Australia from another country is set out in s 40 of the Extradition Act 1988 (Cth) (“the Australian Act”). The Australian Act does not set out either in the Act, or in any regulation made under s 55 of the Act, any procedure to be followed by the Attorney-General on behalf of the Commonwealth in making a request to a country for the surrender of an “extraditable person”.

The applicant’s case appeared to be that pursuant to the Australian Act, in particular s 40, a duty was imposed on the Commonwealth to make a request for surrender in such terms and in such a manner as would enable the requested country to comply with the terms of any legislation or law in force in that country dealing with the response to requests for the surrender of extraditable persons and that a breach of that duty provided a person affected thereby with a right to recover damages from the Commonwealth.

In dealing with the Commonwealth’s motion to dismiss the applicant’s application his Honour read affidavits from both parties and received oral and written submissions. The material before his Honour refined and exposed the applicant’s case. It appeared that the applicant did not contend that the Commonwealth had failed to provide to the United Kingdom the warrants for his arrest issued by the justice of the peace in 1989 but rather that the Commonwealth had not supplied warrants which complied with the UK Act which, it was said, required such warrants to be issued by “a competent judicial authority”, being an authority other than a justice of the peace.

His Honour found that neither the UK Act, nor the Australian Act, referred to “a competent judicial authority” or to a concept of judicial authority which did not include a justice of the peace as an authority competent to issue a warrant of arrest sufficient to ground a request for the surrender and extradition of a person from the UK. His Honour held that it was plain that the warrants issued by a justice of the peace in this State met the requirements of the UK Act. His Honour concluded that there was no foundation for the case the applicant sought to bring against the Commonwealth and that the applicant’s application should be dismissed.

His Honour’s judgment was pronounced on 18 November 1997. Pursuant to O 52 r 15 of the Rules a notice of appeal from that judgment was required to be filed within twenty-one days, assuming the order to be a final order. If the order were interlocutory O 52 r 10 would apply and leave to appeal would be required. No submission to that effect was put by the Commonwealth.

The applicant sought to file a notice of appeal on 15 December 1997, six days after the last day for filing such a notice. On 23 January 1998 the applicant filed the application for leave to file a notice of appeal out of time.

In dealing with the application for leave I heard oral submissions from both parties and gave liberty to the applicant to file further submissions in writing including any amendment he may wish to make to the proposed notice of appeal. In particular, the applicant was invited to address an argument to the question whether special reasons existed, as required by O 52 r 15(2) before leave could be given to file a notice of appeal out of time.

Both the applicant and the Commonwealth filed further submissions. The applicant foreshadowed a further ground of appeal that in the hearing of the respondent’s motion for dismissal of the application the applicant had been denied natural justice. The elements of that ground were that denial of a “full trial” was the denial of natural justice. Further, it was submitted that the judge had erred in law in finding that the matter be dismissed for want of jurisdiction.

If the requirement in O 52 r 15(2) that special reasons be shown why leave should be granted requires an adequate explanation of the cause of the failure to file a notice within time, I am satisfied that the applicant, who did not have the benefit of professional assistance, did his best to get an appeal underway in compliance with the Rules. If the other requirements of O 52 r 15 had been met I would not have regarded the delay of six days as a bar to acceptance that in all the circumstances special reasons sufficient for the grant of leave to file a notice of appeal out of time had been shown.  (See: Jess v Scott (1986) 12 FCR 187).

However, the real question in this matter is whether the applicant has shown that there is something on which an appeal may be based.

The applicant’s submission that there was an error in his Honour’s judgment in the finding that the Court lacked jurisdiction to deal with the applicant’s application, misunderstands the reasons delivered by his Honour. In those reasons his Honour restricted his remarks to a consideration of that part of the motion for dismissal of the application which relied upon O 20 r 2.

In April 1997 s 39B of the Judiciary Act 1903 (Cth) was amended by the Law and Justice Legislation Amendment Act 1997 so as to include in the original jurisdiction conferred on this Court, inter alia, any matter arising under any law made by the Parliament. Putting to one side the question whether a duty was imposed on the Commonwealth by s 40, which in its terms merely vested, or declared the nature of, the authority to make a request on behalf of Australia to another country for the surrender of an extraditable person and the question whether a right to recover damages for a breach of that duty was contemplated by the Australian Act, the application filed by the applicant described a matter arising under a law made by the Parliament. It was not apparent on the face of the proceeding that the Court lacked jurisdiction in respect of that matter. Whether in exercise of that jurisdicition the proceeding was doomed to be dismissed under O 20 r 2 was a different question. If the Commonwealth’s application had relied on O 9 r 7 alone it would have failed. However, as stated above, it was O 20 r 2 and not O 9 r 7 upon which his Honour based the order that the application be dismissed.

The purpose of O 20 r 2 is to provide a respondent with a counterpart to the right to move for summary judgment given to an applicant under O 20 r 1. It is not restricted to proceedings defective on the face of the papers filed. The terms of O 20 r 2 allow the Court to receive evidence on the hearing of a motion brought under that rule. The form of the hearing on such a motion is to be governed by appropriate directions given by the Court.

The applicant asserted, quite correctly, that only in the clearest of cases should the power be exercised to summarily dismiss and extinguish a claim for relief made to the Court. It may be added that a Court must be mindful that that which may appear to be transparent at an early stage of a proceeding may become translucent, if not, opaque, at the time the matter proceeds to trial.

His Honour gave the applicant full opportunity to put forward an argument and to explain the case he sought to bring. No lack of fairness occurred in that regard.

The expectation of a litigant that a matter will be determined by a hearing in the form of a “full trial” is subject to a discretion in the Court to deal with the matter summarily if it is persuaded that the matter is one to which the terms of O 20 rr 1 or 2 may be applied.

The overwhelming problem for the applicant before his Honour, and in this application, was that on any view of the material put before his Honour the conclusion that the applicant’s case was untenable was the only reasonable conclusion available. Therefore, no ground arises for challenging the exercise of a discretion by his Honour which resulted in the summary dismissal of the applicant’s application. (See: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125)

Leave to file an appeal out of time would countenance the commencement of a proceeding doomed to fail and thereby, an abuse of the Court’s process.

Accordingly, the application for leave will be refused with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee

Associate:

Dated:            

The Applicant appeared in person.
Counsel for the Respondent:	T J Carey
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 February 1998 Written submissions filed 12, 17 March 1998
Date of Judgment:	5 May 1998