Birch v Commonwealth of Australia

[1999] HCATrans 220

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P23 of 1998

B e t w e e n -

CLIVE BURRIS BIRCH

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 1999, AT 2.45 PM

Copyright in the High Court of Australia

KIRBY J:   Are you Mr Clive Birch?

MR C.B. BIRCH:   I am, your Honour, yes.

KIRBY J:   You are the applicant in this application?

MR BIRCH:   I am, your Honours.

KIRBY J:   You are appearing for yourself, is that correct?

MR BIRCH:   I am, your Honours, yes.

KIRBY J:   And Mr Macliver is appearing for the Commonwealth?

MR BIRCH:   That is correct, your Honours.

MR P.R. MACLIVER:   If your Honour pleases, I appear for the respondent.  (instructed by the Australian Government Solicitor)

KIRBY J:   Mr Birch, we have the application book, and we have read the applications, and you appreciate that you have a limited time in which to advance any oral elaboration of that application to us.

MR BIRCH:   I do, your Honours.  I just have a very small, prepared statement just to add to the documents that you are already in possession of.

KIRBY J:   Yes, very well, you read that.

MR BIRCH:   The relevant papers and documents upon which I rely have been set out in the application book and in the book of documents filed.  The point in issue is that the judge failed to exercise his discretion to allow an extension of time in which to appeal against the previous ruling.  To exercise the discretion he had to find that there were special reasons which existed to grant an extension of time.  This was because of the provision in the relevant rule, Order 52 rule 2.  There are special grounds why the leave to appeal should be granted.  The result of the refusal by the judge to grant an extension of time has meant that my process has been cut off prematurely, and has not been properly before the Court. 

The grounds that I say exist with respect to this matter are set out on pages 32 to 34 of the application book.  It is my contention that the concept of special reasons in the Federal Court Rules needs consideration by this Court.  In this particular case, a relatively short time, six days, had elapsed beyond the period allowed for an appeal upon the basis that process had been struck out.  It is my contention that the court below took a very narrow view of the term “special reasons” and ought to have allowed the extension because the matter involves very serious considerations of the obligations of the respondent in the exercise of his powers under the Extradition Act.

My claim is that there was a breach of statutory duty giving rise to a claim for damages.  The duty arises from the nexus between the Extradition Act and the relevant legislation in the United Kingdom.  When the authorities of the United Kingdom were exercising their powers against me, they did so on behalf of the respondent.  The only power that the respondent had to do things against me was through the Extradition Act, and it is implicit, in my argument, that the provisions of the United Kingdom Act are obligations which must be discharged by the respondent under the Extradition Act.

If nothing more, in all of the circumstances, and in all of the material at an early stage before the court, there was sufficient evidence to provide an arguable case.  It might be a case which would not be successful, but it does require to be fully argued and tried.  What has happened here is my claim has been snuffed out at a very early stage because of a delay of six days in delivering my notice of appeal.

The factual background is set out on pages 37, 38 and 39 of the application book, and there is a very important aspect to extradition, mainly, as I said, the obligation of the respondent to carry out the provisions of the United Kingdom law arising from its duty under the Extradition Act.  That is the end of my argument, your Honours.

KIRBY J:   Yes.  Mr Birch, I think you are also out of time for the application for this Court, but there was an affidavit, I think, filed which sought to explain the need for an extension of time.  Is that correct?  Are you not seeking an extension of time within which to bring this application, or is this an application ‑ ‑ ‑

MR BIRCH:   This is a special leave to appeal, your Honours.

KIRBY J:   Yes.  Are you within time for the bringing of the application for special leave?

MR BIRCH:   Yes, I am, your Honours.

KIRBY J:   I am looking at the first ground of your application for special leave.  You say:

1.  The Applicant seeks an extension of time up to the date of filing in which to file this application.

Does that indicate that you are out of time with your application for special leave?

MR BIRCH:   No, it does not, your Honour.

KIRBY J:   That is a reference back to the time for the bringing of the application before the Federal Court.  Is that what you are saying?

MR BIRCH:   That is correct, I believe, your Honours.

KIRBY J:   When was the decision of Justice Lee given, on 5 May?

MR BIRCH:   That was 5 May 1998.

KIRBY J:   And your application to this Court was made on 27 May which I think would be within time.

MR BIRCH:   That is right, your Honours.

KIRBY J:   Yes, very well.  You realise, of course, that the order that Justice Lee made is classified by the law as interlocutory and as interlocutory in a matter of practice and procedure.  Normally it really needs exceptional reasons for the courts of appeal to disturb such decisions because of the fact that otherwise unless restraint is shown, people with lots of money can come up and interfere with the normal business of the courts by challenging every little order that judges make.  Why ought you to be treated in a different way in respect of this application which relates to the practice and procedure of the Federal Court which has been determined within that court according to the principles that that court governs itself by, and arguably within its rules?

MR BIRCH:   My arguments within that structure has simply been the public interest.  This was an argument brought forward by the Administrative Appeals Tribunal.  The chairman said it was extremely important for the concept of public interest that any warrants that were issued against an individual, that individual should be allowed to have, or at least sight those warrants.  The public interest factor I think is a major part.  The second part being of the jurisdiction.  The lower court found that they had no jurisdiction between UK and Australia, when in actual fact Australia, or the Commonwealth, had appointed the Director of Public Prosecutions in the UK to act on his instructions.  So, there would have been, one would have assumed, some sort of principle and agent relationship involved in those instructions.

KIRBY J:   But you were ultimately extradited to Australia, were you not?

MR BIRCH:   I was, your Honour, yes.

KIRBY J:   Therefore, the extradition procedure was carried through to completion and presumably followed up in this country.

MR BIRCH:   The extradition procedure was completed.  It was not until the documentation came back to me after the prison sentence that I found that, in fact, they had not complied with the rules and regulations of both courts.

KIRBY J:   But is that not a classical illustration of why courts would show restraint in interfering at this belated stage in a practice decision of the Federal Court, which in turn relates to allowing you belatedly to raise challenges or application for relief in respect of a completed extradition, when that matter, if it is relevant, ought to be raised at the time of objecting to the extradition?

MR BIRCH:   Yes, your Honour, that is quite correct, but unfortunately the evidence was not available to me at that time.  It was only available to me after some two years of obtaining that information through the Freedom of Information Act, which was, in fact, I did obtain the warrants concerned, but not until some two years after the trial.

KIRBY J:   Yes.

MR BIRCH:   I am not complaining, or have made no comments concerning the trial or what happened at the trial, this is on the process of bringing somebody from another country without a justifiable warrant.

KIRBY J:   Yes, very well.  Thank you very much.  Is there anything else you wish to say, Mr Birch.

MR BIRCH:   I think it is all in the documents provided to you, your Honours.

KIRBY J:   Yes, we have received those and we have read them.  Thank you very much.

MR BIRCH:   Thank you, your Honours. 

KIRBY J:   Mr Macliver, the Court does not need your assistance in this application.

This is an application for special leave to appeal.  It arises from the rejection by Justice Lee in the Federal Court of Australia of an application for leave to file and serve a notice of appeal against a judgment of a judge of that court, Justice French.  In matters of this kind, involving an interlocutory order of a procedural kind, it would take exceptional circumstances to attract special leave from this Court.  They are not present here.  No error is shown in the way that Justice Lee approached the application.  The application is refused. 

I think there is an application in the book for costs.  Is that pressed, Mr Macliver?

MR MACLIVER:   Yes, I do seek that order in the light of your Honours’ decision.

KIRBY J:   Mr Birch, normally in applications of this kind, if you do not succeed in proceedings that are civil in nature you are ordered to pay the costs.  Is there any reason why that order should not be made in this case?

MR BIRCH:   If that is the Court’s ruling on that, your Honour, I have no objections to that at all.

KIRBY J:   That is a normal order that is made in such applications.  Very well, the application is refused with costs.

AT 2.56 PM THE MATTER WAS CONCLUDED