FEDERAL COURT OF AUSTRALIA
Marku v Minister for Home Affairs [2013] FCA 561
Citation: Marku v Minister for Home Affairs [2013] FCA 561 Parties: VALENTIN MARKU v MINISTER FOR HOME AFFAIRS and PETER LAURITSEN, CHIEF MAGISTRATE OF THE MAGISTRATES' COURT OF VICTORIA File number: VID 907 of 2012 Judge: GORDON J Date of judgment: 6 June 2013 Catchwords: EXTRADITION – extradition request – notice given by Minister under s 16 of Extradition Act 1988 (Cth) – applicant alleges mistaken identity and denies he is the person sought for extradition – applicant commenced proceedings under s 39B of the Judiciary Act 1903 (Cth) seeking review of the Minister’s decision to give the s 16 notice – related proceedings under s 21 of the Extradition Act 1988 (Cth) and at common law seeking judicial review of the decision of the Magistrate under s 19(9) – whether the s 39B proceeding an abuse of process – whether challenge to decision to give notice under s 16 could and/or ought to have been raised in common law proceeding – Minister not a party to common law proceeding – whether applicant delayed in bringing the s 39B proceeding – Extradition Act 1988 (Cth), ss 16, 19, 21 – Federal Court Rules 2011 (Cth), rr 9.02, 9.05, 26.01 Legislation: Extradition Act 1988 (Cth)
Federal Court Rules 2011 (Cth)
Judiciary Act 1903 (Cth)Cases cited: Brock v Minister for Home Affairs (2008) 170 FCR 434
Commonwealth v Dutton (2000) 102 FCR 168
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528
Gibbs v Kinna [1999] 2 VR 19
Markuv Republic of Albania [2012] FCA 804
Markuv Republic of Albania (No 2) [2012] FCA 1182
Marku v Republic of Albania [2013] FCAFC 51
News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410
Plaintiff S3/2013 v Minister for Immigration and Citizenship [2013] HCA 22
Re Trade Practices Commission v Milreis Pty Ld; Ex Parte Thomson Publications (Australia) Pty Ltd (1978) 18 ALR 17
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Spalla v St George Motor Finance (No 6) [2004] FCA 1699
State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Tort Reports 81-423
Walton v Gardiner (1993) 177 CLR 378Date of hearing: 21 May 2013 Date of last submissions: 27 May 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 42 Counsel for the Applicant: Ms LG De Ferrari and Ms K Argiropoulos Solicitor for the Applicant: DLA Piper Counsel for the First Respondent: Mr S Lloyd SC Solicitor for the First Respondent: Ashurst Australia Solicitor for the Second Respondent: Filed a Submitting Notice on 22 March 2013
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 907 of 2012
BETWEEN: VALENTIN MARKU
ApplicantAND: MINISTER FOR HOME AFFAIRS
First RespondentPETER LAURITSEN, CHIEF MAGISTRATE OF THE MAGISTRATES' COURT OF VICTORIA
Second Respondent
JUDGE:
GORDON J
DATE OF ORDER:
6 JUNE 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS…
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Details
- Case
- [2013] FCA 561
- Decision Date
CaseChat Overview and Summary
The decision in Marku v Minister for Home Affairs addresses the issue of whether a party's failure to challenge the validity of a notice in the correct proceeding should result in the summary judgment of their claim. In this case, the applicant, Mr Marku, challenged the validity of a notice issued under the Extradition Act 1988 (Cth) in a proceeding that was not the proper forum for such a challenge. The Minister for Home Affairs applied for summary judgment on the basis that Mr Marku’s failure to challenge the notice in the appropriate proceeding amounted to an abuse of process. The court considered whether such a failure justified the summary dismissal of Mr Marku's claim.
The court examined the principles surrounding the power to order summary judgment for abuse of process. It recognised that the Federal Court has the inherent power to control its own process and prevent its misuse. Rule 26.01(1)(d) of the Federal Court Rules 2011 (Cth) explicitly empowers the court to order summary judgment in cases of abuse of process. However, this power is to be exercised sparingly, only in exceptional circumstances where there is oppression or unfairness to other parties and a concern for the integrity of the justice system. The court held that to warrant summary judgment, the abuse must be egregious and not merely procedural.
In this case, the court found that while Mr Marku had not challenged the validity of the notice in the proper proceeding, this did not constitute an abuse of process warranting summary judgment. The court acknowledged that Mr Marku had genuinely believed he was challenging the notice in the appropriate proceeding. The court also considered that the Minister had not demonstrated significant prejudice or unfairness resulting from Mr Marku's procedural misstep. The court held that the failure to challenge the notice in the correct proceeding, while a tactical error, did not rise to the level of abuse of process that would justify summary judgment. Consequently, the Minister's application for summary judgment was dismissed. The court ordered that Mr Marku be granted leave to file and serve the amended Originating Application, as this was an oversight in the original orders.
The court examined the principles surrounding the power to order summary judgment for abuse of process. It recognised that the Federal Court has the inherent power to control its own process and prevent its misuse. Rule 26.01(1)(d) of the Federal Court Rules 2011 (Cth) explicitly empowers the court to order summary judgment in cases of abuse of process. However, this power is to be exercised sparingly, only in exceptional circumstances where there is oppression or unfairness to other parties and a concern for the integrity of the justice system. The court held that to warrant summary judgment, the abuse must be egregious and not merely procedural.
In this case, the court found that while Mr Marku had not challenged the validity of the notice in the proper proceeding, this did not constitute an abuse of process warranting summary judgment. The court acknowledged that Mr Marku had genuinely believed he was challenging the notice in the appropriate proceeding. The court also considered that the Minister had not demonstrated significant prejudice or unfairness resulting from Mr Marku's procedural misstep. The court held that the failure to challenge the notice in the correct proceeding, while a tactical error, did not rise to the level of abuse of process that would justify summary judgment. Consequently, the Minister's application for summary judgment was dismissed. The court ordered that Mr Marku be granted leave to file and serve the amended Originating Application, as this was an oversight in the original orders.
Orders
Orders of the court
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Background
Background to the litigation
These reasons for judgment will consider the facts, including the history and substance of the related proceedings and the s 39B Proceeding, the applicable legal principles and then turn to consider whether the Minister should have the relief he seeks.FACTS By an extradition request dated 12 September 2008, the Republic of Albania requested the extradition of “Agostin Lleshaj (Lleshi) alias Valentin Marku”, who was (and remains) wanted to serve a remaining sentence of 21 years and 11 months of a 25 year sentence following his conviction in Albania on 16 December 1994 for the offences of intentional homicide and attempted homicide. On 14 January 2009, the Minister gave a notice under s 16 of the Act which stated that an extradition request had been received from the Republic of Albania in relation to “Agostin Lleshaj” (the s 16 Notice). On 3 March 2009, an application was made on behalf of the Republic of Albania for a provisional arrest warrant under s 12 of the Act in respect of “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)”. The application was supported by an affidavit of a Senior Constable of Victoria Police sworn on 3 March 2009. On 3 March 2009, a magistrate, under s 12 of the Act, issued a provisional arrest warrant for “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)”. The warrant stated that “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)” was an extraditable person for the purpose of the Act in relation to the extradition country. On 11 March 2009, Mr Marku was arrested under the provisional arrest warrant and was subsequently remanded in custody by a magistrate under s 15 of the Act. Before the Second Respondent, who determined pursuant to s 19 of the Act whether the person the subject of the request was eligible for surrender (the s 19 Magistrate), Mr Marku acknowledged that he was Valentin Marku but denied that he was Agostin Lleshaj (or Agustin Lleshi), the person convicted of offences in Albania. The s 19 Magistrate concluded, on the basis of Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528, that he was not empowered to determine whether Mr Marku was an extraditable person. On 28 May 2010, pursuant to s 19(9) of the Act, the s 19 Magistrate issued a warrant committing “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)” to prison to await surrender (the s 19(9) Warrant). Mr Marku commenced two proceedings. A notice of appeal (VID 1242 of 2011) seeking a review of the s 19 Magistrate’s decision under s 21 of the Act (the s 21 Review) and the Common Law Proceeding alleging, inter alia, that the s 19 Magistrate erred in holding that he was not empowered to determine the identity question (defined as “whether the person on remand is the person convicted of the offences evidenced in the authenticated documents”). In the s 21 Review, Mr Marku sought an order that the decision of the s 19 Magistrate be quashed. In the Common Law Proceeding, Mr Marku sought:Orders setting aside the order by warrant purportedly made on 28 May 2010 by the [s 19 Magistrate] under section 19(9) of the … Act …, and directing the making of an order under s 19(10) instead.In both the s 21 Review and the Common Law Proceeding, Mr Marku sought a determination of the identity question. In the Common Law Proceeding, Mr Marku sought that the Court make that determination without restriction to the material before the s 19 Magistrate (as would apply in the s 21 Review).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In January 2013, Mr Marku sought the Minister’s consent to amend the relief sought in the s 39B Proceeding. The Minister consented to amendments which included the addition of a new para 1A:A declaration that the [Minister’s] decision, made on 14 January 2009, to give a “Notice of Receipt of Extradition Request”, under s 16 of the … Act …, directed to “a magistrate before whom the person named in this notice is brought”, stating that an extradition request has been received from the Republic of Albania in relation to “Agostin Lleshaj” (the Decision), was made in breach of the rules of natural justice.A new para 4A sought an order that Mr Marku be released from custody. Orders were made by consent in the s 39B Proceeding on 18 February 2013. By omission, the parties did not include in the minute of orders provided to the Court orders granting Mr Marku leave to file and serve the amended Originating Application and Statement of Claim. There was no dispute that such orders should have been made. In any event, Mr Marku filed the amended Statement of Claim on 25 January 2013 with the notation that it was “amended pursuant to Rule 16.51(1)”, which permits a party to amend a pleading once, before pleadings close, without leave. For the avoidance of confusion, an order should be made granting Mr Marku leave to file and serve the amended Originating Application. It is against that background that the Minister has applied for summary judgment in the s 39B Proceeding.ISSUE The current issue may be simply stated – should Mr Marku have challenged the validity of the s 16 Notice in the Common Law Proceeding and further or alternatively, is his failure to do so fatal to the continuation of the s 39B Proceeding? The answer is no. Before turning to consider the relevant principles and the application of those principles to the current facts, it is appropriate to record that the hearing of this application occupied half a day and necessitated counsel for the Minister travelling from interstate. Prior to, and at, the hearing the parties were invited to consider whether it was more expeditious to proceed to hear the substantive proceeding especially as delay was pleaded by the Minister as a defence to the substantive claim in the s 39B Proceeding. The Minister did not accede to that suggestion and requested that his application for summary judgment be heard and determined. RELEVANT PRINCIPLES – ABUSE OF PROCESS The Federal Court has power to control its own process and prevent misuse of it: Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279. Under r 26.01(1)(d) of the Federal Court Rules 2011 (Cth) (the Rules), the Court is specifically empowered to order summary judgment for a defendant on the basis that a proceeding is an abuse of the process of the Court. The power ought be very sparingly exercised and only in exceptional cases: Sea Culture at 279. The guiding considerations are oppression and unfairness to the other parties to the litigation and concern for the integrity of the system of administration of justice: State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Tort Reports 81-423 at 64-089.
Ratio Decidendi
Legal Principle Established
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