Brock v Minister for Homes Affairs

[2009] HCATrans 177

[2009] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S461 of 2008

B e t w e e n -

GEORGE PAUL BROCK

Applicant

and

MINISTER FOR HOMES AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 JULY 2009, AT 10.24 AM

Copyright in the High Court of Australia

MR D.P.M. ASH:   May it please the Court, I appear for the applicant.  (instructed by the applicant)

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with my learned friend, MS J.S. GLEESON, for the respondent.  (instructed by Blake Dawson Lawyers)

GUMMOW J:   Yes, Mr Ash.

MR ASH:   Your Honour, the special leave question in a narrow sense is whether judicial review of an executive determination under section 19 of the Extradition Act has the effect of barring a person from seeking relief at a later date in relation to an earlier executive Act under section 16.  The applicant contends also that there is a wider issue – the importance of identifying with specificity the nature and extent of the prior determination said to give rise to an abuse or an abuse of process founds a summary dismissal.  Application book page 73 sets out the view taken by the majority in the Full Court, and in my respectful submission, also endorses the approach taken by the primary judge.

On its face, page 73 is an orthodox application of a summary disposal matter.  Paragraph 64 makes assumptions in favour of the applicant, without any question of an orthodox approach.  Paragraph 65, to which I will return, isolates what is said to be the abuse.  Paragraphs 66 and 67 set out the abuse in the Reichel v Magrath sense, and paragraph 68 sets out the abuse in an alternative sense; that is, futility.  May I draw attention to the second sentence in paragraph 65:

Yet the question of the validity of the magistrate’s determination that Mr Brock was eligible for surrender and the consequential issue of the warrant of committal to prison was the very matter decided adversely to Mr Brock in the earlier s 21 proceeding.

That is the nub of the majority’s position.  May I briefly deal with it in the two senses that the majority deal with it, that is, the Reichel v Magrath sense and the futility sense?  If I may deal with the futility sense first, the applicant would say three things.  First – and this appears to be the approach taken by his Honour the dissenting judge – futility when a constitutional writ or here section 39B of the Judiciary Act is in play is something that is dealt with in the discretion.  That is, the first determination is, is the remedy available, and then one asks, or to be refused in the discretion?  In my respectful submission, the question of futility would be determined in the discretion normally, and if that is so the summary method was inappropriate.

More importantly and specifically, the applicant confronts here, and I think it fair to say below, the summary by the majority.  Their Honours isolate the question as a determination of the validity of the magistrate’s determination.  In my respectful submission, the Act does not require that, the Act does not ask that, and this Court has confirmed that in the decision of Pasini.  What happens in section 21 is that a court, of course acting judicially by definition, does no more than affirm the determination by the magistrate.  The court is not concerned, any more than the magistrate was concerned, with making a determination of the underlying validity of the premises upon which the magistrate proceeded.  There is no determination by the magistrate, other than a satisfaction as to fact of the matters in section 19(1) of the Extradition Act, and nor necessarily is a review court called upon to determine it.

GUMMOW J:   Underpinning all of this is some view as to the specificity in this notion of equivalent conduct, is there not, right back at section 16(2)?

MR ASH:   There is, your Honour.  There are two independent executive decisions that are made along the four stage process as to conduct.  One is made by the Minister under section 16, and the second is made by the magistrate in the course of the process under section 19(2).  For the purpose of futility, even leaving aside the Reichel v Magrath point, it cannot be, in my respectful submission, an answer to any complaint about the section 16 process that the magistrate in any event is making a determination under section 19(2) as to the relevant conduct.  The important point for the purpose of this application is that nothing ‑ ‑ ‑

GUMMOW J:   What was the conduct here?

MR ASH:   The conduct, it was alleged that serious misconduct in relation to the drug laws of the United States had taken place.

HAYNE J:   It was alleged conspiracy to import identified quantities of cannabis over a particular period, was it not?

MR ASH:   Yes, it was, your Honour.  It was, I think, some 600,000 pounds of marijuana brought up by barges.

HAYNE J:   The premise for the present debate is that telling a person whose extradition is in question that that is what is to be proceeded with in the United States does not place sufficient information before the Australian decision makers to determine whether there is dual criminality.  Is that right?  I just wonder what more they need to know than that the charge is alleged conspiracy to import cannabis, if you like, of that amount over that period.

MR ASH:   Your Honour, it may well be that on a different set of assumptions in this summary application the applicant would not have succeeded.  The assumption as to the nature and extent of the offence was made in his favour by virtue of paragraph 64 of their Honours’ reasons.  It may well be that were leave granted and were the appeal successful and were the matter to go back to the Federal Court, additional information would be brought as to the nature and extent of the charges which would add strongly to an argument that the remedy, though available, ought in the discretion be refused.

Indeed, the argument referred to by the Full Court on application book page 75 in paragraph 77, the fact that section 19(2) indicates that any argument about the section 16 notice “is spent”, at a policy level supports the view of the two questions raised by your Honour Justice Hayne and the presiding judge.  If it is a fact that there was enough information there, then is not there a futility?  The answer to that may be yes, your Honour.  I say in this application, as indeed the dissenting judge did in the Full Court, there may well be very good reasons why there should be finality.  The question is, was the approach by the majority and was the approach by the primary judge the appropriate course?  In my respectful submission, no.

The second point I wish to say in relation to the futility point is that the effect of the judgment is that a person who has an adverse finding under section 19 but elects not to agitate any section 21 review would appear to be in a better position than a person who does and does so unsuccessfully.  Your Honours, the alternative matter that the Full Court relied upon was the Reichel v Magrath matter.  In Reichel v Magrath a person unsuccessfully agitated that he continued to be the vicar of a certain parish.  That was determined against him.

The point here is that Mr Brock has never engaged in an abuse in that sense.  He has never agitated, because this Court in Kainhofer tells him he could not agitate a question about section 16, leaving to one side the consent dismissal before Justice Wilcox.  He could not have raised that in the section 19 process, and he could not have raised that in a section 21 process.  To categorise his current action as an abuse of process in that sense is, in my respectful submission, wrong.  There is no doubt, though, that the futility point is the strongest of the primary judge’s and the majority’s determination, but futility in what context?

Futility was determined in this summary application, as I have said, upon a construction of section 65.  Justice Gray in the minority accepts that those arguments might in the discretion succeed.  I stand before your Honours and say that there might be additional material in the nature and extent of the criminal charges alleged which may also bring about an argument of finality, may also bring about an argument which says, in

effect, we have heard and considered the section 39B application, we decide that the remedy is available but there are strong discretionary reasons why it should not be granted.

Your Honours, that is the course that was suggested by the dissenting judge in the Full Court; that is appropriate.  More importantly, because the particular quality of abuse by which Mr Brock has been summarily dismissed is, in my respectful submission, an abuse which does not exist on the face of the legislation.  May it please the Court.

GUMMOW J:   Thank you, Mr Ash.  We will take a short adjournment.

AT 10.36 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.41 AM:

GUMMOW J:   We do not need to call on you, Mr Williams.

The Court is not persuaded that there are sufficient prospects of disturbing the conclusion in the Full Court that the application made by Mr Brock was an abuse of process.

The special leave application is refused with costs.

AT 10.41 AM THE MATTER WAS CONCLUDED