Forsyth v United Kingdom

Case [2003] FCA 1084

FEDERAL COURT OF AUSTRALIA

Forsyth v United Kingdom [2003] FCA 1084

CHARLES ALISTAIR FORSYTH v UNITED KINGDOM and
MR BLACK
W169 of 2003

CARR J
19 AUGUST 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W169 OF 2003

BETWEEN:

CHARLES ALISTAIR FORSYTH
APPLICANT

AND:

UNITED KINGDOM
FIRST RESPONDENT

MR BLACK
SECOND RESPONDENT

JUDGE:

CARR J

DATE OF ORDER:

19 AUGUST 2003

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed. 

2.        The applicant pay the first respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W169 OF 2003

BETWEEN:

CHARLES ALISTAIR FORSYTH
APPLICANT

AND:

UNITED KINGDOM
FIRST RESPONDENT

MR BLACK
SECOND RESPONDENT

JUDGE:

CARR J

DATE:

19 AUGUST 2003

PLACE:

PERTH

REASONS FOR JUDGMENT

INTRODUCTION

  1. In this application, filed on 4 August 2003, the applicant seeks orders which include an order that the hearing of certain extradition proceedings listed for 20 August 2003 (i.e. tomorrow) before a Magistrate be vacated.  In those circumstances I propose to give my judgment forthwith. 

  2. The application is made purportedly under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and more appropriately in a jurisdictional sense, under s 39B of the Judiciary Act 1903 (Cth), for review of certain decisions made by Mr R K Black SM on 11 July 2003 in relation to the hearing and determination under s 19 of the Extradition Act 1988 (Cth) of the question whether the applicant is eligible for surrender to the first respondent in relation to certain alleged extradition offences. I shall refer to those proceedings as “the s 19 proceedings”. Mr Black is the second respondent to this application. The applicant seeks to challenge the second respondent’s decisions not to vacate the hearing which is set down for tomorrow, not to re-list it for hearing at a later date on three consecutive days, and to decline to make an order that the first respondent adduce certain documents listed in a schedule dated 6 July 2003 prepared by the applicant.

    FACTUAL AND PROCEDURAL BACKGROUND 

  3. The evidence before the Court to date is as follows. On 25 October 2002 a Magistrate at Perth issued a provisional arrest warrant under s 12(1) of the Extradition Act 1988 (Cth).  The applicant was arrested at Boyup Brook on 3 November 2002 and remanded in custody under s 15 of that Act.  On 4 November 2002, the applicant appeared in the Bunbury Magistrates Court.  He was legally represented, but no bail application was made on his behalf. 

  4. Since then the applicant has been remanded in custody at the Hakea Prison Remand Centre and elsewhere.  On 11 and 12 November 2002 at a hearing before the second respondent in the Perth Court of Petty Sessions in which the applicant was represented by Queen’s Counsel, he applied for bail.  His Worship declined that application indicating that “special circumstances” had not been…

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AGLC
Forsyth v United Kingdom [2003] FCA 1084
Case
[2003] FCA 1084
Decision Date

CaseChat Overview and Summary

The case of Forsyth v United Kingdom involves an application for judicial review of decisions made by Mr R K Black SM on 11 July 2003, relating to a hearing and determination under section 19 of the Extradition Act 1988 (Cth). The applicant challenges decisions not to vacate a hearing set for the next day, not to relist it for three consecutive days, and to decline to order the first respondent to adduce certain documents. The applicant seeks relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and section 39B of the Judiciary Act 1903 (Cth).

The court had to determine whether the applicant was entitled to the relief sought. This involved assessing the discretionary nature of prerogative relief under section 39B of the Judiciary Act and the applicability of other relief. The court considered the applicant's medical condition, the reasons for the denial of bail, and the risk of flight if released on bail. The applicant had been arrested and remanded in custody due to alleged extradition offences, and had been refused bail on the grounds of special circumstances, including his medical condition and the risk of flight.

The court found that the discretionary nature of prerogative relief, combined with the availability of other relief, led to the dismissal of the application. The court observed that the applicant's medical condition and other factors did not justify the granting of immediate relief. The court concluded that the application should be dismissed with costs.

The final orders were that the application be dismissed and the applicant pay the first respondent's costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the first respondent's costs.

Background

Background to the litigation

The application is made purportedly under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and more appropriately in a jurisdictional sense, under s 39B of the Judiciary Act 1903 (Cth), for review of certain decisions made by Mr R K Black SM on 11 July 2003 in relation to the hearing and determination under s 19 of the Extradition Act 1988 (Cth) of the question whether the applicant is eligible for surrender to the first respondent in relation to certain alleged extradition offences. I shall refer to those proceedings as “the s 19 proceedings”. Mr Black is the second respondent to this application. The applicant seeks to challenge the second respondent’s decisions not to vacate the hearing which is set down for tomorrow, not to re-list it for hearing at a later date on three consecutive days, and to decline to make an order that the first respondent adduce certain documents listed in a schedule dated 6 July 2003 prepared by the applicant. FACTUAL AND PROCEDURAL BACKGROUND The evidence before the Court to date is as follows. On 25 October 2002 a Magistrate at Perth issued a provisional arrest warrant under s 12(1) of the Extradition Act 1988 (Cth). The applicant was arrested at Boyup Brook on 3 November 2002 and remanded in custody under s 15 of that Act. On 4 November 2002, the applicant appeared in the Bunbury Magistrates Court. He was legally represented, but no bail application was made on his behalf. Since then the applicant has been remanded in custody at the Hakea Prison Remand Centre and elsewhere. On 11 and 12 November 2002 at a hearing before the second respondent in the Perth Court of Petty Sessions in which the applicant was represented by Queen’s Counsel, he applied for bail. His Worship declined that application indicating that “special circumstances” had not been made out. The special circumstances referred to, included the applicant’s medical condition. The applicant’s evidence is that he has been very ill since his arrest, suffering from acute labile hypertension caused by primary aldosteronism. He says that on 10 February 2003 he underwent an operation at Fremantle Hospital and is now on the “semi-urgent waiting list” for a second operation at Royal Perth Hospital involving major surgery. [In his affidavit filed on 6 August 2003 he stated that on 28 November 2002 his application for legal aid was refused. He made no reference to the legal representation which he had previously secured and which, so it appears, he subsequently secured.] Other matters referred to by the second respondent, when refusing bail on 12 November 2002 were that his Worship considered that there was a real risk of flight by the applicant if released on bail. His Worship characterised the applicant’s actions as “flight from the UK” and noted that there appeared to have been deception relating to a non-appearance at a police interview in the United Kingdom and a subsequent explanation by his solicitors. The second respondent further noted that the applicant had been in possession of a false French passport as well as a false French driver’s licence upon arrival in Australia, both containing photographs of him. The applicant remained in custody.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CARR J
In so far as the applicant seeks immediate relief under s 39B of the Judiciary Act, the authorities show that such prerogative relief is generally discretionary. As Gummow and Callinan JJ (Hayne J agreeing) observed in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at par [33], one often compelling discretionary bar to prerogative relief is the availability of other relief. In my view, that factor, and the other factors to which I have referred lead inexorably to the dismissal of this application. CONCLUSION For the foregoing reasons the application will be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: CARR J

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