Carew-Reid, Stephen Faulkner v The Honourable Justice Gallop

[1998] FCA 1525

FEDERAL COURT OF AUSTRALIA

EXTRADITION – appeal against order of judge confirming extradition order – stay pending appeal - Service and Execution of Process Act 1992 (Cth)

Service and Execution of Process Act 1992 (Cth), s 83(8), s 86(8)
Federal Court of Australia Act 1976 (Cth), s 25(3)

Powerflex Services Pty Ltd v Data Access Corporation (1996) 137 ALR 498 (referred to)
Hollier v The Australian Maritime Safety Authority, Federal Court, unreported, 27 April 1998, Sundberg J (referred to)
Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 (referred to)
Williams v Spautz (1992) 107 ALR 635 (referred to)

STEPHEN FAULKNER CAREW-REID (Appellant) v THE HONOURABLE JUSTICE GALLOP AND OTHERS (Respondents)

AG 109 of 1998

FINN J

CANBERRA

5 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 109  of   1998

BETWEEN:	STEPHEN FAULKNER CAREW-REID APPELLANT
AND:	THE HONOURABLE JUSTICE GALLOP AND OTHERS RESPONDENTS
JUDGE:		FINN J
DATE OF ORDER:		5 NOVEMBER 1998
WHERE MADE:		CANBERRA

THE COURT ORDERS THAT:

1.        the appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 109 of 1998

BETWEEN:	STEPHEN FAULKNER CAREW-REID APPELLANT
AND:	THE HONOURABLE JUSTICE GALLOP AND OTHERS RESPONDENTS

JUDGE:	FINN J
DATE:	5 NOVEMBER 1998
PLACE:	CANBERRA

EX TEMPORE REASONS FOR JUDGMENT

Mr Carew-Reid, the appellant, has lodged what I will treat as an appeal to the Full Court of this court from an order of a judge of the Supreme Court of the Australian Capital Territory confirming an order of the Chief Stipendiary Magistrate of the Magistrates Court of the Australian Capital Territory that the appellant be taken in the custody of Senior Constable Kim Johnson of the Western Australian Police Force to the District Court in the District Court at Perth.  That order was made by the Chief Stipendiary Magistrate under s 83(8) of the Service and Execution of Process Act 1992 (Cth).  The order of the Justice of the Supreme Court, Gallop J, was made under s 86(8) of the same statute.  A related order was made by Gallop J refusing a stay of execution of the Chief Magistrate's order.

Insofar as presently relevant, sections 83 and 86 of the above Act provide:

“Procedure after apprehension

83.      (1)       As soon as practicable after being apprehended, the person is to be taken before a magistrate of the State in which the person was apprehended.

(2)       The warrant or a copy of the warrant must be produced to the magistrate if it is available.

…

(8)       Subject to subsections (10) and (14) and section 84, if the warrant or a copy of the warrant is produced, the magistrate must order:

(a)that the person be remanded on bail on condition that the person appear at such time and place in the place of issue of the warrant as the magistrate specifies;  or

(b)that the person be taken, in such custody or otherwise as the magistrate specifies, to a specified place in the place of issue of the warrant.

(9)       The order may be subject to other specified conditions.

(10)     The magistrate must order that the person be released if the magistrate is satisfied that the warrant is invalid.

…

(14)     For the purposes of a proceeding under this section:

(a)the magistrate may adjourn the proceeding and remand the person on bail, or in such custody as the magistrate specifies, for the adjournment;  and

(b)       the magistrate is not bound by the rules of evidence;  and

(c)it is not necessary that a magistrate before whom the proceeding was previously conducted continue to conduct the proceeding.

…

Review

86.      (1)       If an order has been made under section 83, the apprehended person or a person to whom the warrant was directed may apply to the Supreme Court of the State in which the order was made for review of the order.

…

(6)       The Supreme Court may, pending its review:

(a)       stay the execution of the order;  and

(b)order the person to be remanded on bail or in such custody as the Supreme Court specifies.

(7)       The review is to be by way of rehearing.

(8)       The Supreme Court may confirm, vary or revoke the order.”

Mr Carew-Reid now seeks as part of his appeal, a stay under O 52 r 17 of the Federal Court Rules of the order of Gallop J pending the appeal.  The principles that are applied in this court in exercising the jurisdiction under r 17 cannot really be in contest.  They are conveniently stated in the decision of the Full Court of this court in Powerflex Services Pty Ltd v Data Access Corporation (1996) 137 ALR 498 at 499 where the observations of Mahoney JA in a decision of the Court of Appeal of New South Wales were concurred in. His Honour there made the comment that:

“Where an application is made for a stay of proceedings it is necessary that the applicant demonstrate an appropriate case.  Prima facie a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct.  These are not matters of rigid principle and a court asked to grant a stay will consider each case upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in a state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.”

Those observations were made in the context of civil proceedings.  They are appropriately adaptable though to a matter of the present variety.  The matter I wish to emphasise in relation to the concept of “an appropriate case” is that referred to by Sundberg J in Hollier v The Australian Maritime Safety Authority, Federal Court, unreported, 27 April 1998.  Speaking of an application for a stay, Sundberg J said:

“On such an application the Court must be satisfied that the appellant has an arguable ground of appeal and the appellant cannot expect a stay without showing there is one.”

His Honour referred to Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 at 695 and went on:

“This requirement protects the position of a successful litigant where it may be plain that the appeal has been commenced without any real prospect of success….”

The warrant in respect of which the order was made under the Service and Execution of Process Act 1992 was issued by the District Court of Western Australia. 

The complaints raised by Mr Carew-Reid in the proceedings before me are four-fold.  First, he makes a claim of what is in effect a breach of procedural fairness in the manner of conduct of the hearing before Gallop J.  In a proceeding that lasted somewhat over an hour, he alleges the major part of his presentation was directed towards an adjournment and he was not given an appropriate opportunity to present his case, he having been cut short by the judge.  I will return to this matter below.  The second claim he makes is that the warrant issued by the District Court was procured by misrepresentation and fraud.  Thirdly, he alleges Gallop J’s reasons for decision were inadequate.  Fourthly, he complains that documents before the magistrate and the Supreme Court are not on file and, in any event, the proceedings before me should be stayed so that he can have access to them.

All of these complaints are made in a setting which is in fact much wider.  I have given Mr Carew-Reid leave to rely upon affidavit material filed in proceedings filed in the ACT Registry of the Federal Court in AG 100 of 1998.  In that case a conspiracy involving 69 individuals is alleged in respect of property belonging to - or said to belong to - the Carew-Reid family and companies.  In that proceeding, which I recently ordered be transferred to the Perth Registry of this court, allegations of fraud, perjury, threats and intimidation, issuing of false bench warrants and judicial corruption are made.  Elements of those claims have been reiterated in the proceedings before me. 

Turning now to Gallop J’s reasons for judgment.  They were not delivered at the time His Honour made his order but on the following day.  For present purposes I need only refer to the following four paragraphs of them:

“The application came on for hearing at short notice at 3.00pm on 4 November 1998.  After counsel for the respondent had outlined some basic facts, the applicant addressed the court in respect of his application that the court stay the execution of the Chief Stipendiary Magistrate’s order.

At about 4.00pm, counsel for the respondent informed the court that arrangements had been made to transport the applicant by air to the State of Western Australia on a flight departing Canberra at 5.00pm that day.

After the applicant had been addressing the court for 1 hour 10 minutes, I told him that I could not hear him further because he was not arguing any grounds which would justify an order staying the execution of the Magistrate’s order.  He would not stop talking and accordingly I made the order refusing the stay and confirming the Chief Stipendiary Magistrate’s order and said I would give reasons later.  These are those reasons.

…

The applicant raised many grievances in respect of his treatment by law enforcement authorities and the courts of the State of Western Australia including an assertion that the District Court judge who issued the warrant was corrupt.  However, I was not satisfied that it was appropriate to resolve any of those grievances on the hearing of the application for review.  Contrary to the submissions of the applicant, I was not satisfied that any unfairness or illegality had tainted the process of the issue of the warrant by the District Court Perth, or its execution or the order made by the Chief Stipendiary Magistrate of the Magistrates Court, Canberra.”

Given what his Honour had to say about the submissions made to him in paragraphs 4 and 10, his reasons for decision, while brief, cannot be faulted.  If a judge is of the view that the grounds being argued would not justify the making of the order being sought, then the judge is not obliged as of course to set those arguments out in any extensive fashion.  It is a matter of discretion bearing in mind the nature of the arguments put as to how much detail should be included.  His Honour’s reasons while brief adequately convey the logic of his decision and his reason for rejecting Mr Carew-Reid’s arguments.

The real question that arises must of course relate to the warrant issued by the District Court in Western Australia.  If that warrant is unimpeachable then the provisions of the Commonwealth legislation envisage a course being taken which will result in the person named in the warrant being transmitted either on bail or in custody or otherwise to the place of issue of the warrant.  So much is clear from s 83(8) of the Service and Execution of Process Act 1992.  In relation to any defect in the warrant, Gallop J in paragraph 10 expressed the conclusion that he was not satisfied:

“that any unfairness or illegality had tainted the process of the issue of the warrant by the District Court, Perth.”

Mr Carew-Reid has sought to go into matters of a background character to contest this proposition.  For my own part I do not find any basis of arguable error in the conclusion reached by Gallop J in the materials that have been put before me.  No more than a state of speculation or of mere argument that an abuse of process of some form has occurred has been advanced.  As the observations of Mahoney JA that are quoted in the Powerflex Services case illustrate, such are not sufficient to justify the award of a stay.

As to the alleged procedural unfairness Gallop J was said to have engaged in, again the length of time devoted to a case is a matter in the first instance for the judge hearing it.  If matters are raised which the judge considers can have no possible bearing upon the outcome of the matter before him or her, the judge does not commit an appellable error by cutting the person off in presenting that material.  While Mr Carew‑Reid may well wish to have traversed broad territory in support of the review he sought before Gallop J, I am not satisfied that in the manner in which the proceedings were conducted an arguable error has occurred. 

It is important in this matter to recognise that the stay sought by Mr Carew-Reid is sought in aid of his appeal. That appeal is to the Full Court of this court. There is no requirement that that appeal be heard in the Australian Capital Territory. It can be heard in Perth and Mr Carew-Reid is perfectly entitled to prosecute his appeal in the Perth Registry of this court. While it is the case under s 25(3) of the Federal Court of Australia Act 1976 (Cth) that a judge having a commission to the Supreme Court of the Australian Capital Territory can be expected to sit on an appeal from a judge of the Supreme Court, that is not a mandatory requirement. The Chief Justice of the Federal Court retains discretion in the matter.

More generally, the complaints raised by Mr Carew-Reid are essentially ones which appropriately and properly can only be disposed of in Western Australia.  He raises allegations of abuse of process of the types considered by the High Court in Williams v Spautz (1992) 107 ALR 635. It is the case that the appropriate court to exercise the supervisory jurisdiction over the District Court and Magistrates Court where the alleged abuses of process are said to have occurred is the Supreme Court of Western Australia.

There is little doubt that the matters complained of more generally by Mr Carew-Reid can only be efficiently and effectively inquired into in that State.  In the circumstances then I am not satisfied that an appropriate case has been made which would justify my ordering a stay of the order of Gallop J pending the hearing of his appeal to the Full Court.  Accordingly, I dismiss that appeal.

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

Associate:
Dated:             5 November 1998

Appellant appeared in person
Solicitor for the Respondents:	S Cronan
Date of Hearing:	5 November 1998
Date of Judgment:	5 November 1998