Brock v United States of America & Anor

[2007] HCATrans 487

[2007] HCATrans 487

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S48 of 2007

B e t w e e n -

GEORGE PAUL BROCK

Applicant

and

UNITED STATES OF AMERICA

First Respondent

JULIE ANNE HUBER

Second Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 AUGUST 2007, AT 2.37 PM

Copyright in the High Court of Australia

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

MR T.A. GAME, SC:  If the Court pleases, I appear with my learned friend, MS P.E. McDONALD, for the first respondent.  (instructed by Commonwealth Director of Public Prosecutions, Sydney)

GLEESON CJ:  Yes, Mr Ash.

MR ASH:  May it please the Court, the issue in this case is whether a person who is subject to an executive act made without statutory authority has a remedy but, of course, the issue cannot be got to unless this special leave forum can be confident that an anterior issue decided against the applicant in both the Courts below ought be decided in his favour.  The issues, your Honours, can be joined without being confused by going to the Act and the Act alone.  Sections 19 and 21 read together make clear that there are facts to be established for a process to be engaged and also make clear that the process itself is capable of being reviewed.

What the Act is wholly silent on is whether a person who complains not about want of process but about want of whether the facts were established has a course of complaint.  True it is that these proceedings were commenced by way of review, by way of complaining against process and that is a matter I will have to address but if I may go first to, perhaps by way of illumination of that issue, what I have termed the anterior issue, that is, the establishment of the fact. 

The fact in issue has two components.  One is a consideration by a person and the second thing is the object of that consideration; a reasonable time in which to prepare.  Neither the parties nor the Full Federal Court judges who have considered this matter are in any disagreement.  Reasonable time is comprised of two things; an isolated concept called time and personal elements particular either to the person or, of course, the country, who also has the right to reasonable preparation.  But the important thing for current purposes has two distinct elements. 

The learned magistrate’s consideration – or perhaps the magistrate’s consideration because she was acting administratively – is found in the application book at page 76, line 42.  It is important to take the Court to the text because of complaints made against the applicant’s case both by the primary judge and by the majority in the Full Court.  At line 42 her Honour opens subsection “19(d) requires that I consider” et cetera.  She then goes on to consider what Mr Brock has put to her.  The crucial matter the applicant relied on at first instance in the intermediate court and before your Honours is at line 56.

GLEESON CJ:  What page is this again, please?

MR ASH:  Application book page 76, transcript line 56.

There may be other factors which have impacted upon Mr Brock which has caused him not to be able to prepare and, as he says, never be able to prepare, but time certainly is not one of those factors and he has – I am satisfied that Mr Brock has had reasonable time in which to prepare for the conduct.  I am therefore satisfied –

as to the statutory criterion.

GLEESON CJ:  That was interpreted on page 7 in the first paragraph by Justice Moore in a certain way.  What do you say about Justice Moore’s interpretation of that?

MR ASH:  Yes, your Honour.  As I understand it, indeed reading from the bottom of page 6, his Honour made two observations.  The first was that, of course, that an administrative decision‑maker’s reasoning “should not be approached with an eye finely attuned to error”, a point agreed upon by the Chief Justice in the intermediate Court.  His Honour also says that what is disclosed in that wording is, in a sense, a balancing process.  That was specifically agreed with by Justice Jacobson in the intermediate Court.

Your Honour, the applicant contends, and has contended at all times, that the words of her Honour, taken fairly and not out of context, reveal one thing and one thing only; a process of consideration but a process of consideration which takes into account time and personal factors but, and in the applicant’s case fatally, goes further not to balance those things but to specifically extract personal factors and leave only time as the determinant.

GLEESON CJ:  Although she is dealing with a submission that is recorded on page 76 at line 45 and the words that she says, that you criticise, are a response to a submission which is a submission by your client that he would never have enough time.

MR ASH:  Your Honour, in my respectful submission, the content of the transcript begins merely at application book 74 and the context of those three and a bit pages of transcript reveal, at the highest against the applicant, that the magistrate was asked, quite correctly, to determine four distinct matters before she moved on to the process.  In the course of determining those four matters the applicant also made, as part of that introductory step, an application but that is as high as it goes.  In my respectful submission, the opening words that I took the Court to earlier, section “19(d) requires”, shows, as well as perhaps a consideration of Mr Brock’s discrete application, a consideration of the statutory test her Honour was mandated to undertake.  That, and that alone, is the evidence before the Court of the reasoning process. 

I come back to what I said at the outset.  It is not, in my respectful submission, taking those three pages into account an attempt to draw anything out of context.  To put it another way, the answer to your Honour the Chief Justice’s question might well be yes, but the anterior issue discretely is, did the person who engaged in the process properly establish the fourth jurisdictional fact?  If it is fair to say that those words constitute in context and fairly the whole of the reasoning process, in my respectful submission, that is patently wrong.

Your Honours, the applicant contends that this forum could feel confident and very confident the Courts below came to the wrong conclusion on the anterior question.  If that is so, the issue in respect of which special leave is sought flows.  Your Honours, the immediate difficulty for the applicant is that this was commenced as a section 21 application and, indeed, your Honours will be aware that there was, for want of a better word, a merits issue, a dual criminality issue, that passed along up until the intermediate Court level.

It is not wholly the fault of the applicant.  Indeed, one of the bases of this special leave application is that there was a pre‑existing Full Court authority that said if you have a jurisdictional complaint, that is, not a process complaint but a fact complaint, the appropriate course of action is a section 21 review or, indeed, perhaps a little more fairly to Justice Conti in Knauder v Moore, it will not matter if you do have a section 21 review, the Court will still listen to you on a jurisdictional fact argument.  That is essentially what happened.

HEYDON J:  Let me just get one thing straight.  Let us say you win on what you have been saying until about 90 seconds ago, is the United States of America seriously suggesting that the Court lacks power to grant a remedy?

MR ASH:  The position taken by the respondent, at least in the written outline, in the intermediate Court was that the section 21 process cured any defect.  Of course the applicant’s position would be that that is a.....I do not think, in fairness to my friend, it goes any higher than that.

HEYDON J:  This special leave question you are now discussing seems to be not merely abstract but just not alive.  The only issue is the initial one, was 19(1)(d) complied with?

MR ASH:  Your Honours, the position if the anterior question were resolved in favour of the applicant, appears to be this.  I am talking in terms of result, what is the best result for the applicant.  The applicant would be entitled to argue at the highest, perhaps not for long, but at the highest Knauder v Moore because Knauder v Moore will effect a release.  It may be that the applicant should argue something less.  Whether his Honour’s reasoning is, with respect, correct, Justice Rares’s approach in the minority was to the effect of, well, the decision just goes, the man is still on remand and the foreign country can engage the process again.

There is still a question of no remedy in the sense that, as I understand it my friend’s outline in this Court, it is not so much to say there is no remedy as in the discretion there should be no remedy because there could be no other outcome; no prejudice has been shown.  So the answer to your Honour Justice Heydon’s question is, the approach of the respondent appears to be that any remedy would be futile, so it should be opposed on that basis.  Indeed, in my respectful submission, if that is the position of the respondent, then that alone ‑ ‑ ‑

HEYDON J:  I do not think the respondent is saying that in its written submissions.  I could be wrong.

MR ASH:  I understood the first respondent to be saying, on page 257 of the application book, that it has not been demonstrated there was any issue of non‑compliance with the requirements of section 19(2) which was available but which he was denied the opportunity to raise.  I understand that to mean that if the applicant is correct and if there is jurisdictional error, any remedy would be futile, even if available, because there is – I use the word in a non‑specific sense – some onus, some burden, some requirement, that the applicant show actual prejudice, and he is able to show none.

In my respectful submission, that in itself is something that would warrant special leave because there are a variety of views.  In any event, even on the orthodox view, that raised in Stead v State Government Insurance Commission, it cannot be said with any surety at all that that the applicant could not have brought evidence as to the state of foreign law and, even though he disavowed any extradition objections after the jurisdictional fact was determined against him, there is nothing to say that he might not, in fact, have a jurisdictional objection that had he been given time to prepare he might have come up with.

So, in my respectful submission, the position taken by the respondent that no remedy ought be granted because it would be futile – and, with respect, I think paragraph 1 on page 257 does, in effect, say that – if that is the position taken by the respondent, in my respectful submission, that is something that of itself deserves special leave.  Your Honours, there are two

Full Court decisions.  The facts are completely in.  There are no additional facts that would be required for the matter to be fully agitated. 

The preliminary point, in my respectful submission, comes down resoundingly in the applicant’s favour but, most of all and in specific answer to your Honour Justice Heydon’s question and what, of course, this Court must be concerned with mostly is there a special leave question, yes, there is and it comes from two things; the nature of the remedy and related to that and against what the respondent says, yes, it can be shown that there is prejudice, even if that cannot be shown, the remedy ought be granted.  Your Honours, that is the case for the applicant.

GLEESON CJ:  Thank you, Mr Ash.  Yes, Mr Game.

MR GAME:  If the Court pleases, first there is a factual finding made by Justice Moore at first instance which is agreed in by Chief Justice Black and Justice Jacobson.  Our friends would have to show that it was reasonably arguable at least that their Honours fell into error in that respect.  Secondly, if there is relief available, it is very doubtful that the relief would be relief under a section 21 review.  The relief would be judicial review under section 39B and the significance of that is this, that you would have to show jurisdictional error, you would have to show that it was not reasonably open to the magistrate acting reasonably to come to such a conclusion as she did.  That is the second matter.  That assumes that the magistrate is a section 75(5) officer of the Commonwealth.  If she is not, of course there could be judicial review in the State Supreme Court.  This applicant actually sought section 39B relief in respect of the section 16 notice. 

Thirdly, in respect of the issue, if it were in judicial review, then in judicial review applying Stead and the recent decision of this Court in Aala there would have to be some potentiality that the asserted jurisdictional error of the magistrate could have some materiality.  That is impossible in this case because you have a section 19 hearing, the only issues you can raise are extradition objections, dual criminality and this document satisfying the provisions.  Extradition objection has been eschewed.  The only issues are, in effect, dual criminality and the document satisfying the provisions.  There has been a full hearing in respect of those issues and a full review both before Justice Moore and on appeal before the Full Court.

This case, in our submission, is not the appropriate case, as it were, to investigate whether or not Knauder v Moore is correct.  Knauder v Moore provided, in effect, an unrepresented litigant on appeal with relief which we would say is actually section 39B relief.  There was no doubt that there had been a denial of procedural fairness in that case and it was not contested that that was the case.  He had not even received the relevant documents.  Knauder v Moore can be rationalised, as it were, as the court.....providing judicial review of the section 39B category. 

A review such as has been brought in this case sought to be brought under section 21 could not include any component in itself of a review of the magistrate’s satisfaction about jurisdictional facts as they appear in section 19(1)(a) to (d) because a review, if you have a look at the provisions, the only outcome of the review in effect, if one looks at section 21(2), is either confirming the order or ordering the release.  The relief offered, as it were, by Justice Rares in this case is a declaration and a quashing of the section 19 warrant, that is to say, certiorari and a declaration.  So this case went on appeal as a section 21 review, an issue was run in relation to dual criminality which was unarguable and has been abandoned now.  It was pursued in the Full Court and it was clearly without merit.

GLEESON CJ:  Did that arise out of racketeering?

MR GAME:  The dual criminality point was this.  This case involves 600,000 pounds of Indian hemp brought into the United States in tugboats and barges over seven years in the 1980s.  He was charged with what is called a continuing offence and he was charged with conspiracy.  The dual criminality argument is he could not be charged with both and the court rightly said that that is not correct.  There is also an affidavit from a United States attorney which says that, to give constitutional protection in these circumstances – to avoid constitutional protection, the Court may not sentence for both.

So, in effect, one might infer that the United States is doing this at least for purposes of specialty because they do not get him extradited for both offences.  They cannot make an election if they wish to (a) but (b) according to that attorney’s affidavit, it is something that occurs, people being tried for both.  The conspiracy is regarded as a subsidiary offence.  It is regarded as a lesser offence than the continuing offence provision.  The penalty for the major offence is a very heavy sentence, to say the least.

That is how it works.  But judicial review of the kind that is being imported into the section 21 review, that judicial review is strictly jurisdictional error, judicial review of the ordinary kind.  That, in effect, is being sought as a side wind of an unsuccessful review under section 21.  It is better than double or nothing because you do not have a point on appeal, but you say the magistrate used a form of words which has been construed by a single judge and two judges on appeal as meaning that she did apply herself properly to the question and then, as it were, you say, well, there is a jurisdictional error because she has said that time is not one of the problems and that there may be other problems. 

The construction placed on that by the Full Court and by Justice Moore is that which your Honour the Chief Justice has already taken my friend to.  Those circumstances do not make this case an appropriate case to pursue the various jurisdictional complexities that might arise in an appropriate case nor is this case an appropriate case to consider the authority in Knauder v Moore.  If the Court pleases.

GLEESON CJ:  Thank you, Mr Game.  Yes, Mr Ash.

MR ASH:  Your Honours, two matters.  First, as I understand my friend, the argument is that because the applicant started a section 21 review process, presumably, as I said, at least in part because he was relying on Knauder v Moore, he is not now in a position to seek a jurisdictional remedy.  So, in a sense, the answer to your Honour Justice Heydon’s question would seem to be, yes, there is not a remedy because the proceedings were misconceived at the outset.  In my respectful submission, that might be able to be fixed and ought not provide a basis alone for refusing a grant.  All the facts are in.  There are two seriously conflicting Federal Court authorities.  In my respectful submission, this is an appropriate case.

GLEESON CJ:   Having regard to what was said by Justice Moore at the top of page 7 of the application book as to the correct understanding of the reasons of the learned magistrate, we are of the view that no question appropriate to a grant of special leave to appeal arises and we are also not persuaded that the interests of justice requires such a grant.  The application is dismissed.

MR GAME:   An order for costs.

GLEESON CJ:   With costs.

AT 3.00 PM THE MATTER WAS CONCLUDED