FEDERAL COURT OF AUSTRALIA
Francuziak v Minister for Justice [2015] FCAFC 162
Citation: Francuziak v Minister for Justice [2015] FCAFC 162 Appeal from: Francuziak v The Honourable Michael Keenan MP, Minister for Justice [2015] FCA 464 Parties: PAWEL FRANCUZIAK v MINISTER FOR JUSTICE File number: WAD 265 of 2015 Judges: SIOPIS, FLICK AND KATZMANN JJ Date of judgment: 16 November 2015 Catchwords: PRACTICE AND PROCEDURE – leave to raise new argument on appeal – grounds relied upon before primary Judge abandoned – leave refused – appellant bound by the conduct of his case
PRACTICE AND PROCEDURE – duty on primary Judge to go beyond factual and legal issues identified by the parties in public law litigation
EXTRADITION – departmental brief – claim for privilege over parts – no denial of procedural fairness
ADMINISTRATIVE LAW – public law litigation – duty placed on Judge to go beyond legal and factual issues as identified by the parties
Legislation: Extradition Act1988 (Cth), s 22(3)(b)
Judiciary Act1903 (Cth), s 39B
Federal Court Rules2011 (Cth), r 20.35Legal Services Directions 2005 (Cth), App B, item 2, note 4
Cases cited: Assistant Treasurer v Cathay Pacific Airways Ltd [2009] FCAFC 105, (2009) 179 FCR 323
Escobar v Spindaleri (1986) 7 NSWLR 51
Hamod v New South Wales [2011] NSWCA 375
Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929, (2001) 64 ALD 9
Metwally v University of Wollongong (1985) 59 ALJR 481
ReMinister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6, (2003) 214 CLR 1
Neil v Nott (1994) 68 ALJR 509
Summers v Repatriation Commission [2015] FCAFC 36, (2015) 145 ALD 30
SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372, (2008) 104 ALD 22
SZKMS v Minister for Immigration and Citizenship [2008] FCA 499
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106, (2004) 204 ALR 624
Water Board v Moustakas (1988) 180 CLR 491Date of hearing: 19 October 2015 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 47 Counsel for the Appellant: Dr J L Cameron (Pro Bono) Counsel for the Respondent: Dr E M Heenan Solicitor for the Respondent: Attorney-General’s Department
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 265 of 2015
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: PAWEL FRANCUZIAK
AppellantAND: MINISTER FOR JUSTICE
Respondent
JUDGES:
SIOPIS, FLICK AND KATZMANN JJ
DATE OF ORDER:
16 NOVEMBER 2015
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The name of the Respondent is amended to “Minister for Justice”.
2.Leave is granted to file the Re‑Amended Notice of Appeal dated 30 September 2015.
3.To the extent that leave is necessary to now rely upon grounds 1, 2 and 4 of the Re‑Amended Notice of Appeal, leave is refused.
4.The appeal is dismissed.
5.The Appellant pay the Respondent’s costs.
Note:…
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Details
- Case
- [2015] FCAFC 162
- Decision Date
CaseChat Overview and Summary
The case of Francuziak v Minister for Justice involves an appeal against a decision related to extradition. The appellant, Francuziak, sought to challenge the procedural fairness of the primary hearing and the sufficiency of the primary judge's consideration of the evidence before him. The central legal issues were whether leave was required to raise new arguments on appeal, and if the primary judge had a duty to go beyond the issues identified by the parties in public law litigation.
The court found that the appellant was bound by the conduct of his case, as grounds relied upon before the primary judge were abandoned. Leave to raise new arguments on appeal was refused. The court also determined that there was no breach of procedural fairness in the primary judge’s handling of the departmental brief, as the appellant did not challenge the legitimacy of the claim for privilege at the appropriate time. Furthermore, the court held that the primary judge was not under a duty to go beyond the legal and factual issues as identified by the parties, and that the rules of procedural fairness aim for fairness rather than procedural perfection.
In conclusion, the appeal was dismissed with costs. The court granted leave to file the Re-Amended Notice of Appeal but refused leave to rely on certain grounds. The name of the respondent was amended to "Minister for Justice."
The court found that the appellant was bound by the conduct of his case, as grounds relied upon before the primary judge were abandoned. Leave to raise new arguments on appeal was refused. The court also determined that there was no breach of procedural fairness in the primary judge’s handling of the departmental brief, as the appellant did not challenge the legitimacy of the claim for privilege at the appropriate time. Furthermore, the court held that the primary judge was not under a duty to go beyond the legal and factual issues as identified by the parties, and that the rules of procedural fairness aim for fairness rather than procedural perfection.
In conclusion, the appeal was dismissed with costs. The court granted leave to file the Re-Amended Notice of Appeal but refused leave to rely on certain grounds. The name of the respondent was amended to "Minister for Justice."
Orders
Orders of the court
1. The name of the Respondent is amended to “Minister for Justice”.
2. Leave is granted to file the Re‑Amended Notice of Appeal dated 30 September 2015.
3. To the extent that leave is necessary to now rely upon grounds 1, 2 and 4 of the Re‑Amended Notice of Appeal, leave is refused.
4. The appeal is dismissed.
5. The Appellant pay the Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
On 24 July 2014 Mr Francuziak’s then Counsel sent an e-mail to the Minister’s then solicitors in which he stated, among other things, that the parties agreed on the approach to be taken “in the further conduct of the matter”. He attached a minute of proposed orders. Those short minutes relevantly proposed that:By 7 August 2014, the respondent file and serve a copy of the departmental brief (including attachments) dated 5 March 2014 that was provided to the applicant in accordance with paragraph 1 of the orders of Justice Barker dated 8 May 2014, in lieu of any affidavit evidence, with the departmental brief so filed to be received by consent as evidence of the material that the Attorney-General's Department provided to the Minister in respect of the decision made on 17 March 2014 under s 22 of the Extradition Act 1988 (Cth) that the applicant be surrendered to the Republic of Poland. (Emphasis added.)The next day the primary Judge made orders in accordance with the short minutes. If the claim for privilege were to be put in issue, that should have occurred before this order was made. At the very latest, any dispute as to the legitimacy of the claim for privilege should have been canvassed at the hearing before the primary Judge. It matters not, with respect, that the reason for the claimed deletions was founded upon legal professional privilege. Nor would it matter whether deletions to the departmental brief were made to protect some claim for confidentiality or for some other reason. It is generally not open on appeal to seek to challenge the evidential basis upon which a hearing has been conducted where the relevant evidence has been admitted by consent. The absence of any procedural unfairness In any event, there has been no procedural unfairness to Mr Francuziak for either of two reasons. First, the rules of procedural fairness are directed to ensuring that a party is given a reasonable opportunity to be heard; the rules do not set out to achieve the impossible objective of ensuring that a party who is legally represented takes the best advantage of that opportunity. The rules of natural justice or procedural fairness are directed to ensuring (as the expression itself conveys) fairness, not procedural perfection. Second, in the particular circumstances of this case, there was no unfairness in the procedure that was adopted. Before the primary Judge, the argument was not so much directed to whether the Minister had been correctly advised as to what was required by the “real chance” test as opposed to a “more likely than not” test; the argument was more directed to the question of whether the prospect of ill-treatment in prisons need be the product of “deliberate Polish government policy designed to punish and harm inmates”. Indeed, the reasons for decision of the primary Judge recited at [28] (and there was no challenge to this part of his Honour’s reasons) that Mr Francuziak “accepts that the Departmental Advice correctly articulated the ‘real chance’ test…”. To the extent that that argument is now recast so as to focus attention upon the advice proffered to the Minister with respect to the “real chance”, the argument must fail. The prejudice to Mr Francuziak in not disclosing the entire departmental brief is not self-evident. As the brief itself advised the Minister, “it [was] appropriate in this case to apply the ‘real chance’ test, which is the lowest threshold and test most favourable to Mr Francuziak”. In these circumstances, there is no reason to infer that disclosure of the redacted parts of the brief might show that the Minister applied a different test.A duty upon the primary Judge? – a truly worrying prospect
Decision
Reasons for decision
This is not to deny that a Judge should intervene in a hearing where there is manifest unfairness or manifest procedural unfairness. And it may be that public law cases involve different considerations than those applicable in private law or commercial litigation. But the identification of those considerations and the content of any such duty must await a future case where it truly arises for consideration and where the question has been properly argued. That is not this case.Conclusion There was some uncertainty on the part of Counsel for Mr Francuziak as to whether he needed both leave to file the Re-Amended Notice of Appeal and leave to raise arguments not put to the primary Judge. If the alleged denial of procedural fairness was the failure by the Minister to provide an unexpurgated version of the departmental brief to Mr Francuziak (and/or the primary Judge), that was unquestionably an argument that could have been but was not canvassed prior to or during the hearing below. Leave to raise such an argument on appeal would be required. If the alleged denial of procedural fairness was in the manner in which the case proceeded before the primary Judge and was occasioned by the failure of the primary Judge to discharge his alleged duty to ensure that all material was available for scrutiny by Counsel and the Court itself, leave may not be required. An argument so cast would seek to raise appealable error in the manner in which the hearing was conducted. On one construction of the Re-Amended Notice of Appeal, that argument was embraced by grounds 1, 2 and 4. It matters not, with respect, which of these two approaches is correct. If the denial of procedural fairness is said to lie at the feet of the Minister, leave to raise such an argument on appeal is refused. If the denial of procedural fairness or breach of duty by the primary Judge is said to lie at the feet of either the Minister or the primary Judge with respect to the manner in which the hearing proceeded, the argument, however expressed, is rejected. Either way, the appeal must be dismissed with costs.THE ORDERS OF THE COURT ARE:1.The name of the Respondent is amended to “Minister for Justice”. 2.Leave is granted to file the Re‑Amended Notice of Appeal dated 30 September 2015.3.To the extent that leave is necessary to now rely upon grounds 1, 2 and 4 of the Re‑Amended Notice of Appeal, leave is refused.4.The appeal is dismissed.5.The Appellant pay the Respondent’s costs.
Ratio Decidendi
Legal Principle Established
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