Farina v Honourable Amanda Vanstone

[2000] FCA 662

FEDERAL COURT OF AUSTRALIA

Farina v Honourable Amanda Vanstone [2000] FCA 662

FARINA v HONOURABLE AMANDA VANSTONE
N 107 OF 2000

TAMBERLIN J
SYDNEY
17 MAY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 107 OF 2000

BETWEEN:	GIOVANNI FARINA APPLICANT
AND:	SENATOR THE HONOURABLE MINISTER FOR JUSTICE AND CUSTOMS AMANDA VANSTONE RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	17 MAY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time within which to lodge an appeal is granted. There is no order as to costs.

2.        The application for a stay is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 107 OF 2000

BETWEEN:	GIOVANNI FARINA APPLICANT
AND:	SENATOR THE HONOURABLE MINISTER FOR JUSTICE AND CUSTOMS AMANDA VANSTONE RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	17 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter a notice of motion has been filed with the court seeking an order for a stay of the execution of the orders made by me on 19 April this year dismissing with costs an application for judicial review of the decision of the Minister under the Extradition Act 1988 (Cth). Reasons for these orders were delivered on 8 May 2000. When the matter was before me and I announced my orders an application was immediately made for a stay of the surrender pending a decision of the European Court of Human Rights (“ECHR”). On that occasion I decided that, given the history and gravity of the matter, the stay should be refused. These matters were referred to in my reasons for judgment delivered on 8 May.

2. At the outset of proceedings this morning, an application was made for an extension of time within which to file a notice of appeal against my decision.  I granted this application because the reasons for my decision of 19 April were not delivered until 8 May and the draft notice of appeal was lodged on 16 May.

3. In relation to the application for a stay it is now put that because there is an appeal on foot there is likely to be fresh evidence as to the hearing date before the ECHR, and having regard to an earlier affidavit filed by Mr McIlwraith, the solicitor for the applicant, a stay should now be granted.

4. In assessing whether or not a stay should be granted it is important to bear in mind the weakness or strength of the grounds which have been raised in relation to the appeal.  In the present case these grounds, to a large extent, simply reiterate the identical matters which were agitated before me in the earlier hearing.  The additional matters raised concern the fixing of a timetable, which is not yet specified but which I will assume can be identified, as to the time for the hearing before the ECHR.  There is also said to be some fresh evidence as to the nature of the composition of the Italian Court that will try the applicant.

5. A second, earlier, application has already been made to me for a stay based on an earlier assertion by the Italian advocate for the applicant, Mr Ciappi, as to the composition of the Italian Court.  I confirm my earlier two decisions that it is not appropriate to grant a stay in this matter.  Nothing of any additional significance has been raised.  In my view the appeal has no reasonable prospect of success. This is a clear cut case and I do not think there is any arguable basis raised on which to challenge the decision of the Minister.  Accordingly I decline this third application for a stay.

6. I note there is still an outstanding matter in this proceeding relating to a claim for restoration of some item of property seized at the time of the apprehension of the applicant but that this question is to be resolved later in the year.  I dismiss with costs the application for a stay.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             22 May 2000

Counsel for the Applicant:	C Ward
Solicitor for the Applicant:	David McIlwraith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 May 2000
Date of Judgment:	17 May 2000