Matson v Attorney-General (Cth) - [2021] FCA 161

FEDERAL COURT OF AUSTRALIA
Matson v Attorney-General (Cth) [2021] FCA 161

File number: QUD 254 of 2020

Judgment of: WHITE J

Date of judgment: 3 March 2021

Catchwords:
EXTRADITION – application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) on an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of decisions made under ss 12, 16, 19, 22 and 23 of the Extradition Act 1988 (Cth) – application of principles of res judicata, Anshun estoppel and abuse of process – application granted.

PRACTICE AND PROCEDURE – applications for the reopening of the hearing so that the Applicant could provide additional evidence and additional submissions – whether such applications are an abuse of process – interests of justice and finality of litigation – applications dismissed.

Legislation:
Constitution ss 51(xxix), 73, 116

Extradition Act 1998 (Cth) ss 7(c), 12, 15, 15A, 15B, 16, 18, 19, 21, 22, 23, 26, 49C

Federal Court of Australia Act 1976 (Cth) ss 23, 31A, 37M, 37N

Freedom of Information Act 1982 (Cth)

Judiciary Act 1903 (Cth) s 39B

Extradition (United State of America) Regulations 1988 (Cth)

Federal Court Rules 2011 (Cth) rr 8.21, 9.05, 10.51, 26.01

Cases cited:
Adamas v The Hon Brendan O’Connor (No 3) [2012] FCA 365
Amcor Ltd v Barnes [2016] VSC 707
Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256
Brown v Petranker (1991) 22 NSWLR 717
Brundsen v Humphrey (1884) 14 QBD 141
Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226
Eliezer v University of Sydney [2015] FCA 1045; (2015) 239 FCR 381
Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Harrington Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338; (2004) 207 ALR 483
Harris v Attorney‑General (Cth) (1994) 52 FCR 386
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313
Horta v The Commonwealth of Australia [1994] HCA 32; (1994) 181 CLR 183
Inspector‑General in Bankruptcy v Bradshaw [2006] FCA 22
Kimber v Owners of Strata Plan No 48216 [2017] FCAFC 226; (2017) 258 FCR 575
Kong v Minister for Immigration and Citizenship [2011] FCA 1345; (2011) 199 FCR 375
Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Love and Thoms (Love v Commonwealth of Australia [2020] HCA 3; (2020) 375 ALR 597
Marku v Minister for Justice [2015] FCA 831; (2015) 237 FCR 580
Matson v United State of America [2016] FCA 1245
Matson v United States of America [2018] FCAFC 57; (2018) 260 FCR 187
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118
Peniche v Vanstone [1999] FCA 1688, (1999) 96 FCR 38
Polites v Commonwealth (1945) 70 CLR 60
Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808
R v Smith (1987) 44 SASR 587
Rahardja v The Governor, Long Bay Gaol [2002] NSWSC 1253
Rivera v Minister for Justice and Customs [2007] FCAFC 123; (2007) 160 FCR 115
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Schumack v Commonwealth of Australia [2009] FCA 775
Sillery v The Queen [1981] HCA 34; (1981) 180 CLR 353
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189
SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158; (2013) 308 ALR 266
Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508
Timbercorp Finance Pty Ltd (in liq) v Collins [2016] VSCA 128
Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212
Tomlinson v Ramsey Food Processing Ltd [2015] HCA 28; (2015) 256 CLR 507
Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406
United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614
Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468
Walton v Gardiner (1993) 177 CLR 378

Division: General Division

Registry: Queensland

National Practice Area: Federal Crime and Related Proceedings

Number of paragraphs: 224

Date of last submission/s: 4 February 2021

Date of hearing: 30 September 2020 and 4 February 2021

Counsel for the Applicant: The Applicant appeared in person (30 September 2020 and 4 February 2021)
Mr P Bubendorfer (Bail Application on 30 September 2020)

Solicitor for the Applicant: Mr P Bubendorfer (Bail Application on 30 September 2020)

Counsel for the First and Second Respondents: Mr G del Villar QC (30 September and 4 February 2021) with Mr M McKechnie (4 February 2021)

Solicitor for the First and Second Respondents: Australian Government Solicitor

Counsel for the Third, Fourth and Fifth Respondents: The Third, Fourth and Fifth Respondents did not appear

ORDERS

QUD 254 of 2020

BETWEEN:
BARON PHILLIP MATSON

Applicant

AND:
THE ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

THE COMMONWEALTH OF AUSTRALIA

Second Respondent

THE PRESIDENT OF THE UNITED STATES OF AMERICA THE HONOURABLE DONALD J TRUMP (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

WHITE J

DATE OF ORDER:

3 MARCH 2021

THE COURT ORDERS THAT:
(1)The interlocutory application of the applicant sent to the Court on 6 January 2021 and filed on 11 January 2021 seeking to reopen the hearing is refused.
(2)The application of 19 February 2021 for leave to reopen the interlocutory application filed on 11 January 2021 is refused.
(3)Each of the interlocutory applications of the applicant filed on 25 and 29 September 2020 is refused.
(4)Pursuant to s 31A of the FCA Act, the originating application filed on 4 August 2020 is dismissed.
(5)Subject to the following orders, the applicant is to pay the costs of the first and second respondents of and incidental to the proceedings to be taxed in default of agreement.
(6)If either the applicant or the first and second respondents wish to contend for some different order as to costs, he or they are by 4 pm on 10 March 2021, to file and serve an outline of submissions setting out the different order for which they contend and the submissions in support of the making of that order, with those submissions not to exceed five pages.
(7)In the event that the applicant or the first and second respondents do file submissions in accordance with the preceding order, the other party is, by 4 pm on 17 March 2021, to file responsive submissions, not exceeding five pages.
(8)Subject to any further order, the Court will then determine the outstanding issues as to costs on the papers.
(9)The parties do not have leave to file and serve any documents other than those referred to in Orders 6 and 7.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
WHITE J:

Introduction

[1]

The procedural and litigious background

[7]

The judgment in Matson 2016

[21]

The judgment in Matson Full Court

[26]

The present action

[35]

Summary judgment – relevant principles

[50]

Res judicata: principles

[54]

Anshun estoppel: principles

[58]

Abuse of process: principles

[66]

Rule 26.01 – matters of approach

[70]

The first and second respondents’ submissions

[71]

The applicant’s submissions

[80]

Consideration of the first and second respondents’ application

[92]

Proposed Order 6 – the validity of the previous extradition decisions

[93]

Review of the s 16 decision

[94]

Review of the s 19 decision

[97]

Review of the s 12 decision

[98]

Review of the s 22 Decision and the issue of the surrender warrant

[101]

Proposed Order 6 in the 2PFAOA

[114]

Conclusion on Proposed Order 6

[115]

Proposed Order 1 - the surrender of the applicant to the USA

[116]

The COVID-19 pandemic

[119]

The applicant’s previous reliance on the pandemic

[121]

The applicant’s previous reliance on the ICCPR

[126]

ICCPR not part of the law of Australia

[135]

The asserted implied constitutional rights

[136]

The 2PFAOA

[149]

Conclusion on Proposed Order 1

[150]

Proposed Order 2 - the claim for an injunction

[151]

Proposed Order 3 - habeas corpus

[154]

Proposed Order 4 - mandamus

[157]

Proposed Order 5 - the claim for exemplary damages

[158]

Proposed Order 7 - the validity of the Act and the Treaty

[164]

The applicant’s 6 January 2021 application to reopen

[176]

The applicable principles

[178]

The basis for the application to reopen

[182]

The claims in 2PFAOA

[183]

Consideration of reopening with respect to the 2PFAOA

[185]

Reopening for psychological assessment

[194]

Conclusion on the application for reopening

[198]

Other matters bearing on the abuse of process

[200]

A second application to reopen

[204]

Conclusion on the first and second respondents’ interlocutory application

[209]

The bail application

[210]

Conclusion

[224]

Introduction

This judgment concerns five interlocutory applications in proceedings arising from the proposed extradition of the applicant to the United State of America (the USA).
The underlying proceedings were commenced by the applicant on 4 August 2020 and name five respondents. They are the fourth proceedings commenced by the applicant in the original jurisdiction of this Court in respect of his extradition. Each of his previous actions has failed. In the current proceedings, the applicant seeks relief of diverse kinds directed to avoiding the extradition. As will be seen, there is considerable overlap between the relief now claimed by the applicant and that claimed by him in his previous actions.
The first four interlocutory applications are:
(a)the applicant’s application for bail in [5] of the claim for interlocutory relief contained in the Originating Application filed on 4 August 2020;
(b)the application of the first and second respondents filed on 11 September 2020 seeking summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) in respect of the whole of the applicant’s underlying proceedings or, alternatively, a stay on the basis that the proceedings are an abuse of the process of the Court;
(c)the interlocutory application of the applicant filed on 25 September 2020 by which he seeks leave retrospectively to file the amended originating application (the proposed AOA) filed without leave on 3 September 2020 and the “temporary stay” of the interlocutory application of the first and second respondents until the remaining respondents have been served; and
(d)the interlocutory application of the applicant filed on 29 September 2020 by which he seeks leave to file a further amended originating application (the proposed FAOA).
These four applications were heard on 30 September 2020. The applicant said that, if he was granted leave to file the FAOA, he would not press the application for the “temporary stay” of the first and second respondents’ application.
When reserving judgment on 30 September 2020, the Court ordered that, without the leave of the Court, no further interlocutory applications should be filed while judgment was reserved. Without seeking leave, the applicant caused to be sent to the Court on 6 January 2021 two interlocutory applications and another interlocutory application on 7 January 2021. The second and third of these applications seemed to be later (and updated) iterations of the first. Each sought, in effect, leave to reopen the proceedings, leave to amend the originating application still further, certain other relief, and leave to make further submissions. Although the form of the proposed further amended originating application which the applicant provided was not so entitled, I will refer to it as the “Second Proposed Further Amended Originating Application” (the 2PFAOA).
The second interlocutory application provided on 6 January 2021 was, subject to the grant of leave, accepted for filing on 11 January 2021 and was heard on 4 February 2021. The applicant confirmed that it was that particular interlocutory application which he wished to press. The Court granted leave retrospectively for the filing of that interlocutory application and reserved judgment on the remaining aspects. It is the fifth of the interlocutory applications with which this judgment is concerned. I will refer to it as “the fifth interlocutory application”.
The procedural and litigious background
The background which follows should be understood against the scheme for extradition of persons contained in the Extradition Act 1998 (Cth) (the Act). That scheme was explained in a judgment of the Full Court concerning the present applicant: Matson v United States of America [2018] FCAFC 57; (2018) 260 FCR 187 (Matson Full Court), at [9]‑[22] and by a previous Full Court in Harris v Attorney‑General (Cth) (1994) 52 FCR 386 at 389. In summary, the Act contemplates four stages:
(a)either an application to a specified court by the country seeking the extradition (the extradition country) under s 12 of the Act or the receipt by the Attorney‑General of an extradition request from an extradition country (s 16);
(b)the arrest of the person and consideration under s 15 of whether the person should be remanded in custody or granted bail for such periods as be necessary for proceedings under s 15A (waiver of extradition), s 18 (consent to surrender) or s 19 (proceedings before a Magistrate or eligible Federal Circuit Court judge to determine whether the person is eligible for surrender);
(c)relevantly to this case, the determination by a court pursuant to s 19 of whether the person is eligible for surrender; and
(d)the decision by the Attorney‑General under s 22 to surrender the person to the extradition country.
In the applicant’s case, all four stages in the process have been completed. As will be seen, the course of events has been protracted, principally because of challenges made by the applicant to decisions made, and actions taken, at various stages of the process.
On 21 May 2014, the USA (the fifth respondent) requested the extradition of the applicant from Australia. The basis on which the USA seeks the applicant’s extradition is contained in the judgment of Rangiah J (Matson v United State of America [2016] FCA 1245 (Matson 2016)) at [4]‑[6]:
[4]On 26 October 2005, a grand jury in the USA returned an indictment charging Mr Matson and two others with the following offences, carrying the following maximum periods of imprisonment:
•one count of conspiracy to commit mail fraud and wire fraud – 5 years;
•five counts of mail fraud – 20 years;
•nine counts of wire fraud – 20 years.
[5]On 21 December 2005, another grand jury returned a superseding indictment charging Mr Matson and the two others with the original offences and an additional count of conspiracy to commit money laundering, which carries a maximum penalty of 20 years imprisonment.
[6]The allegations made by the USA are to the effect that between 1997 and 2000, Mr Matson, his father, Roger Matson and Gordon Robert Grant made false promises and representations to induce investors to invest in fraudulent schemes related to gambling on horse and greyhound racing. The schemes are alleged to have initially involved investors paying money for computer hardware and software known as the Professional Race Organizer Program (“the PRO Program”), which would allow investors to “generate a consistent cash income” and “successfully back every runner in every race”. It is alleged that after receiving large amounts of money from the investors for the PRO Program, investors were invited by the conspirators to invest in a new program, a Managed Accounts Program, which would “increase their opportunity for return”. Under this program the investors’ funds were to be pooled and the conspirators were to manage the wagering process. In 2000, investors were presented with an opportunity to invest up to $75,000 each to be used for wagering on the Melbourne Cup. The USA alleges that the conspirators then “vanished along with substantially all of the investors’ money”.
The notice of receipt of the USA’s extradition request contemplated by s 16(1) of the Act was signed by the former Minister for Justice (Mr Keenan) on 4 September 2015 (the s 16 Decision) and, on 17 September 2015, a Magistrate (Mr Morrison), acting under s 12 of the Act, issued an extradition warrant (the s 12 Warrant).
The applicant (then 38 years old) was arrested and brought before a Magistrate on 26 October 2015. The evidence does not disclose whether he made an application for bail at that time but it does indicate that he was, under s 15(2) of the Act, remanded in custody.
On 15 January 2016, a Magistrate (Mr Cosgrove) determined under s 19 of the Act that the applicant was eligible for surrender to the United States (the s 19 Decision) and ordered, under s 19(9) of the Act, that he be committed to prison to await the surrender.
The applicant applied to this Court under s 21 of the Act for review of the s 19 Decision. That application (Action QUD89/2016 in which the respondents were the USA and, in effect, Mr Cosgrove) was dismissed by Rangiah J on 21 October 2016 in the Matson 2016 judgment. The applicant then appealed against Matson 2016 to the Full Court.
Earlier, on 26 July 2016, the applicant had filed in this Court an application for review of the ss 12 and 16 Decisions (Action QUD569/2016 in which the respondents were the USA, Mr Keenan and Mr Morrison). The hearing of Action QUD569/2016 was initially listed for 12 December 2016 but was adjourned to 10 February 2017. Then, on 21 February 2017, Action QUD569/2016 was referred to the Full Court to be heard jointly with the applicant’s appeal against Matson 2016. That hearing took place on 25 May 2017. The Full Court delivered judgment on 13 April 2018, dismissing both the appeal and Action QUD569/2016. This is the Matson Full Court judgment.
The effect of Matson Full Court was to uphold the s 16 Decision and to confirm that the applicant was eligible for surrender under s 19 of the Act.
Nine months later, on 1 February 2019, the Acting Attorney‑General (Mr Hunt) determined, under s 22(2) of the Act, that the applicant be surrendered to the United States (the s 22 Decision) and issued a warrant under s 23 of the Act for his surrender (the Surrender Warrant).
Then, on 11 February 2019, the applicant filed an originating application under s 39B of the Judiciary Act 1903 (Cth) seeking review of the s 22 Decision and of the decision under s 23 to issue the Surrender Warrant for his surrender. That application (Action QUD107/2019 in which the Attorney‑General of the Commonwealth of Australia was the sole respondent) was listed for hearing before Rangiah J on 22 July 2019 but, at the applicant’s request, the hearing was adjourned to 30 September 2019, and then to 18 November 2019.

The hearing before Rangiah J commenced on 18 November 2019 with the applicant represented by Mr Morris QC. However, shortly after its commencement, Mr Morris QC sought and was granted leave to withdraw as counsel for the applicant. The applicant then proceeded as an unrepresented litigant and judgment was reserved. However, on 5 February and 11 March 2020, the applicant filed interlocutory applications seeking to have the hearing reopened, as well as orders for discovery and production of documents. Those applications were heard on 25 June 2020 and were dismissed. The applicant was represented by Mr J Burnside QC and Mr D Freedman in that hearing.
Eleven days later, on 6 July 2020, the applicant filed another interlocutory application seeking the reopening of the hearing in Action QUD107/2019 and, shortly afterwards, lodged an application seeking an order that Rangiah J recuse himself from the proceedings. Then on 16 July 2020, the applicant filed an interlocutory application seeking leave to reopen the amended interlocutory application filed on 11 March 2020. The applicant filed yet further interlocutory applications on 5 and 19 August 2020 in the proceedings in which Rangiah J had reserved judgment.
Justice Rangiah heard the various interlocutory applications filed after 25 June 2020 on 28 August 2020. At the time of the hearing of the four interlocutory judgments in this action on 30 September 2020, judgment in Action QUD107/2019 was reserved. It was, however, delivered on 28 October 2020 (Matson v Attorney‑General [2020] FCA 1558 (Matson 2020)). The parties were given the opportunity to make further submissions in the light of Matson 2020. It will be necessary to return to that judgment later in these reasons.
The judgment in Matson 2016
Given the issues raised by the respondents’ interlocutory application and the application by the applicant to amend his originating application, it is appropriate to refer in more detail to the reasons in Matson 2016 and in Matson Full Court.
In Matson 2016, Rangiah J identified the application for review then before him as raising two broad issues (at [44]):
(a)Whether the Magistrate erred in finding that Mr Matson is an eligible person for surrender – this involves consideration of whether the Magistrate correctly decided that the eligibility criteria under s 19(2) are met (“eligibility issues”).
(b)Whether Mr Matson can adduce additional evidence which was not before the Magistrate at first instance in order to support allegations of undue delay, false and fraudulent statements and conspiracy by the USA (“impropriety issues”).
In relation to the eligibility issues, the applicant raised seven sub‑issues which Rangiah J addressed under the following headings:
·Whether warrant is duly authenticated;
·Whether warrant and charging document insufficient and time-barred;
·Whether extradition request made through diplomatic channel;
·Whether probable location identified;
·Whether statement of the law describing punishment for offences and limitation given;
·Whether insufficient description of facts and conduct; and
·Whether dual criminality requirement satisfied;
Justice Rangiah addressed the impropriety issues by identifying three sub‑issues, namely:
·Adducing evidence not before the Magistrate – allegations of delay, fraud and falsity;
·Section 7 extradition objection; and
·Other matters – humans rights considerations.
Justice Rangiah dismissed each of the applicant’s contentions on these issues and sub‑issues and, accordingly, dismissed the application for review made under s 21 of the Act.
The judgment in Matson Full Court
It will be recalled that the judgment in Matson Full Court determined, first, the appeal against Matson 2016 and, secondly, the application under s 39B of the Judiciary Act for judicial review of the s 16 Decision of Minister Keenan and of the s 12 Decision of Magistrate Morrison.
The Full Court noted that, in the appeal against Matson 2016, the applicant (then represented by senior counsel) pressed only one of the 19 grounds of appeal, being Ground 11:
11.The primary Judge erred in concluding that there is no error in the conclusion of the second respondent that Mr Trezevant’s affidavit provides sufficient facts to satisfy section 19(3)(c)(ii) of the Extradition Act and articles XI(2)(b) and 3(c) of the Treaty.
That is to say, the sole matter which the applicant pursued on the appeal against Matson 2016 was whether the extradition request had been properly supported by an affidavit, statement or declaration “setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it”, as required by s 19(2)(b) of the Act and by [3(c)] of Art XI in the Treaty on Extradition between Australia and the United States of America (the Treaty).
The Full Court found that Ground 11 was not made out and that Mr Trezevant’s affidavit satisfied the requirements in s 19(3)(c)(ii) of the Act and [2(b)] and [3(c)] of Art XI of the Treaty, at [79].
The Full Court described the applicant’s application under s 39B as a collateral challenge to his extradition, at [3]. Their Honours noted that the issues on the s 39B application concerned what the applicant described as “the egregious delay” on the part of the USA in seeking his extradition and his contention that that circumstance (together with matters said to indicate a lack of candour and obfuscation) amounted to a compelling case of abuse of process or power, at [6] and [90].
The Full Court also noted that the applicant’s submissions on the judicial review application were directed almost entirely to the s 16 Decision rather than to the Magistrate’s issue of the warrant under s 12, at [13].
In dismissing the s 39B application, the Full Court said:
[89]While it may be accepted that Mr Trezevant’s explanation of the delay is by no means a detailed or direct explanation, it is nonetheless difficult to accept Mr Matson’s contention that the delays apparent on the face of the extradition request were egregious and unexplained. The alleged offences were no doubt complex and the investigation extensive. The whereabouts of the defendants was unknown, itself a factor necessarily contributing to delay.
[90]There is also no basis for Mr Matson’s contention that there was a lack of candour, or obfuscation, on the part of the United States in explaining the delay. As has been said, while it might perhaps be accepted that Mr Trezevant’s affidavit did not provide much detail in relation to the reasons or explanation for the delay, there was no relevant lack of candour or obfuscation.
[91]Mr Matson’s submission that there was a “compelling case” of abuse of process or fraud on the extradition power must also be rejected. The basis for that submission was the delay and obfuscation. Given the delay was not egregious and not entirely unexplained, and there was no lack of candour or obfuscation, it must follow that there was no abuse of process.
The Full Court also held that issues concerning delay have little, if any, role to play at the s 16 stage in the extradition process, at [92]; that the applicant’s challenge to his extradition on the basis of delay was premature, because the appropriate course was for him to make submissions to the Minister at the s 22 stage, at [97], [100]; and that the weight of the authorities suggested that neither the Magistrate nor this Court on review had the power under the Act to stay an extradition proceeding on the basis of abuse of process, at [99]‑[100].
Finally, the Full Court noted that there were sound reasons of policy why the Court should be reluctant to intervene at an intermediate stage of the extradition process, in the absence of an exceptional situation, citing Harris v A‑G at 413C.
The present action
By the originating application in the present proceedings (Action QUD254/2020) filed on 4 August 2020, the applicant seeks relief as follows:
(a)a declaration that any attempt to surrender him to the USA pursuant to the surrender warrant issued by the Acting Attorney General under s 23 of the Act on 1 February 2019 would be invalid by reason that it is:
(i)unlawful;
(ii)in breach of his fundamental human rights under the International Covenant on Civil and Political Rights (the ICCPR);
(iii)in breach of his implied constitutional right to protection from cruel and unusual punishment (Proposed Order 1).
The three particulars which the applicant provides in support of this claim all relate to the COVID‑19 pandemic, namely, claims that it would pose an unacceptably high risk to his health and well‑being to be surrendered to the USA; exposure to COVID‑19 would breach his fundamental human rights; and such exposure would breach his implied constitutional right to protection from cruel and inhuman punishment.
(b)an injunction to restrain that surrender from taking place (Proposed Order 2). For this claim, the applicant relies on the same particulars as he does for Proposed Orders 1, 5 and 6;
(c)a declaration as to the invalidity of his present detention in custody, a writ of habeas corpus, and an order in the nature of mandamus to compel his release from custody (Proposed Orders 3 and 4). Again, the applicant relies on the same particulars as he does for Proposed Orders 1, 5 and 6 and, in addition, on assertions that his detention is indefinite, arbitrary, in breach of ICCPR Art 9 and constitutes cruel and unusual punishment;
(d)an award of exemplary damages in respect of the entire period he has been in custody since 26 October 2015, at the rate of $2,500 per day (Proposed Order 5). In support of this claim, the applicant gives particulars concerning the alleged conduct of the USA, asserting non‑compliance by it with treaty obligations, “lack of candour”, “deliberate obfuscation” and withholding of documents as well as claims against the Attorney‑General’s Department (including allegations of complicity in the impugned conduct of the USA and the withholding of documents); and
(e)declarations as to the invalidity of the decisions made and actions taken under ss 12, 16(1), 19, 22 and 23 of the Act (Proposed Order 6). This proposed order is supported by particulars alleging abuse of process, executive unlawfulness, incomplete disclosure of documents, conflicts of interest by the Attorney‑General’s Department officers, absence of regard to the applicant’s Aboriginal ancestry, incomplete disclosure of material to the Acting Attorney‑General, unreasonableness, and irrationality and illogicality.
In addition, the applicant seeks various forms of interlocutory relief, one of which is bail so that he may reside at his mother’s address with bail conditions fixed by the Court. By other interlocutory relief, the applicant seeks orders with respect to the conduct of Action QUD107/2019 (being the proceedings on which Rangiah J was at the time of the hearing reserved) and orders for discovery and/or production of documents.
There are five named respondents to the proceedings commenced on 4 August 2020. They are the Attorney‑General for the Commonwealth of Australia (first respondent), the Commonwealth of Australia (second respondent), the President of the United States of America, the Honourable Donald J Trump (third respondent), the Attorney‑General of the United States of America, the Honourable William P Barr (fourth respondent) and the United States of America (fifth respondent).
On 3 September 2020, the applicant filed a document entitled “Amended Originating Application” (the AOA). The AOA names seven respondents. These include the original five respondents, although named in different order.
The filing of the AOA was irregular. Not only did the applicant not have leave to file an amended originating application (as required by r 8.21 of the Federal Court Rules 2011 (Cth) (the FCR)), he did not have leave to join additional respondents (r 9.05 of the FCR) nor leave to alter the order in which the existing respondents are named.
At this stage, only the first and second respondents named in the proceedings commenced on 4 August 2020, namely, the Attorney‑General of the Commonwealth of Australia and the Commonwealth of Australia have been served with the proceedings. The applicant has lodged a request under r 10.51(d) of the FCR for transmission of a document to a foreign government for service on the remaining respondents but that request has not yet been determined.
On 11 September 2020, the first and second respondents (to whom I will, unless otherwise indicated, refer to as “the respondents”) filed an interlocutory application seeking an order under s 31A of the FCA Act and r 26.01(1) of the FCR for summary judgment on the grounds that the applicant has no reasonable prospect of successfully prosecuting the proceeding, the proceeding is frivolous or vexatious, and the proceeding is an abuse of process of the Court. They rely principally on the principles of res judicata, Anshun estoppel, and abuse of process.
On 25 September 2020, the applicant filed an interlocutory application seeking two forms of relief: the grant of retrospective leave to file the proposed AOA on 3 September 2020 and a “temporary stay” of the respondents’ interlocutory application until the remaining respondents have been served.
On 29 September 2020, that is, the day before the hearing, the applicant lodged for filing a further interlocutory application. By this application, the applicant seeks leave to file the proposed FAOA. It is evident that the proposed FAOA is intended to supersede the proposed AOA.
The applicant did not mark up the proposed amendments in the proposed FAOA. On my understanding, it differs from the Originating Application filed on 4 August 2020 in the following material respects:
(a)the applicant adds a further basis to his claim for a declaration (Proposed Order 1) that any attempt to surrender him to the USA would be unlawful, namely, that it would be “in breach of [his] constitutional implied right under s 116 of the Constitution to live and die in Australia together with his ancestral spirits, as First Nations people have done so for over 60,000 years”. He also adds an additional particular, namely, that such a surrender would deny him his “special connection” to Australia.
The applicant had claimed “Aboriginal ancestry” in the Originating Application but these particulars are an elaboration of his claims relying on that ancestry;
(b)the applicant adds a further particular to his claim for exemplary damages (Proposed Order 5) by asserting that the Attorney‑General’s Department had located two additional documents not previously disclosed to him, as well as other claimed inaccuracies in the Department’s response to Freedom of Information Act 1982 (Cth) requests;
(c)the applicant revises and elaborates of some of the particulars supporting Proposed Order 6; and
(d)the applicant now seeks an additional order (Proposed Order 7), being a declaration that the Treaty on Extradition between Australia and the USA, and the Act itself, “are invalid under the Constitution”.
The parties agreed that the Court should receive submissions first on the summary judgment application of the first and second respondents, with the submissions on the applicant’s second and third interlocutory applications being part of those submissions, and then submissions on the applicant’s application for bail. The hearing proceeded in that way. In the way the hearing developed, the applicant did not pursue that part of his second interlocutory application which concerns the AOA, as the form of the originating application he wished then to pursue was the proposed FAOA. The parties’ submissions were for the most part directed to the proposed FAOA, this containing the articulation of the claims which the applicant wishes to pursue.
The applicant’s fifth interlocutory application was prompted by his receipt in December 2020 of an undated letter from the Attorney‑General (the December Letter). By that Letter, the Attorney‑General informed the applicant that he did not have the power “to remake or reconsider a surrender decision made under section 22 of [the Act]” and thereby implicitly rejected the applicant’s request that he do so.
As noted previously, the fifth interlocutory application seeks in effect a reopening of the hearing. By the 2PFAOA, the applicant seeks to revise some of his existing claims and to raise additional claims. The fifth interlocutory application also seeks other relief to which I will refer later.
The respondents opposed the grant of leave to reopen, the grant of leave to amend the application in the form of the 2PFAOA, and the grant of leave to the applicant to make further submissions.
I indicate now that I have decided that leave to reopen the hearing should be refused but will defer providing reasons for that conclusion until later. I do, however, note that the 2PFAOA, the fifth interlocutory application and the supporting affidavit named only the five original respondents and did so in the sequence in which they were named in the originating application filed on 4 August 2020. This seemed to amount to an implicit abandonment by the applicant of his attempt to bring in additional respondents and to alter the sequence in which the existing respondents are named.
Summary judgment – relevant principles
Section 31A of the FCA Act provides (relevantly):
31A Summary judgment
…
(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Court has apart from this section.
…
Rule 26.01(1) of the FCR permits the Court to order that judgment be given against another party in circumstances which are, in substance, the same as those contained in s 31A(2). It provides (relevantly):
(1)A party may apply to the Court for an order that judgment be given against another party because:
(a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or
(b)       the proceeding is frivolous or vexatious; or
(c)       no reasonable cause of action is disclosed; or
(d)       the proceeding is an abuse of the process of the Court; or
(e)…
The application of s 31A has now been discussed in a number of authorities, including Spencer v The Commonwealth of Australia [2010] HCA 28, (2010) 241 CLR 118 and Eliezer v University of Sydney [2015] FCA 1045, (2015) 239 FCR 381 which was approved in Kimber v Owners of Strata Plan No 48216 [2017] FCAFC 226, (2017) 258 FCR 575 at [62]. Given the basis of the respondents’ application in the present case, it is sufficient to note the following principles:
(a)section 31A lowers the threshold applicable to applications for summary judgment which had been stated in authorities such as Dey v Victorian Railways Commissioners [1949] HCA 1, (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, (1964) 112 CLR 125 at [53];
(b)as s 31A(3) makes plain, a proceeding need not be “hopeless” or “bound to fail” before it can be found to have no reasonable prospect of success;
(c)nevertheless, a proceeding should not be terminated summarily unless there is a “high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”: see Spencer at [24] and [60]. This means that s 31A is to be applied with caution;
(d)the Court is concerned with the substance of the matter and not with matters of form: Schumack v Commonwealth of Australia [2009] FCA 775 at [14]. It makes a practical judgment having regard to the circumstances of the particular case: Kimber at [62]. Amongst other things, this generally means that the Court is not concerned with mere pleading points; and
(e)it is the party seeking summary judgment who has the onus of persuading the Court that the proceeding has no reasonable prospects of being prosecuted successfully: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641, (2013) 220 FCR 256 at [45]; Kimber at [62].

As already noted, the respondents rely principally on the principles of res judicata, Anshun estoppel and abuse of process. Plainly enough, claims which can be seen now to be the subject of those doctrines may be held to have no reasonable prospects of success for the purposes of s 31A of the FCA Act and r 26.01 of the FCR.
Res judicata: principles
The principle of res judicata operates to preclude a party from litigating in a second proceeding a cause of action which has merged into judgment in a prior proceeding: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 per Gibbs CJ, Mason and Aickin JJ at 597. Issue estoppel is a narrower principle which has the effect that once there has been a judicial determination of an issue, it is to be treated as final with the consequence that it cannot be raised again between the same parties or their privies.
The relationship between the doctrines of res judicata and issue estoppel was explained by Gibbs CJ, Mason and Aickin JJ in Anshun at 597:
The distinction between res judicata (in England called "cause of action estoppel") and issue estoppel was expressed by Dixon J. in Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464, at p 532 in these terms: "in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."
The distinction was restated by Fullagar J. in his dissenting judgment in Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446, at p 466. His Honour expressed the rule as to res judicata by saying: "where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro eadem causa.'" His Honour went on to discuss issue estoppel, citing the comment of Dixon J. in Blair v. Curran (1939) 62 CLR 464, at p 531: "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."
The cases have recognised some imprecision in the term “cause of action” as it is capable of referring to the facts which support a right to judgment, a right which has been infringed, or the substance of an action as distinct from its form – see Anshun per Brennan J at 610 and Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418. As was noted by Gummow J in Trawl Industries at 418, the focus is on the substance of the two proceedings as distinct from their form, so that it is pertinent to consider “whether the same sort of evidence would prove the plaintiff’s case in the two actions”, citing Brundsen v Humphrey (1884) 14 QBD 141 at 146.
Contrary to the apparent belief of the applicant, a claim for relief is subject to the doctrine of res judicata even if the relief be sought in the later proceedings on new or additional grounds or information. It is the cause of action which merges into the judgment.
Anshun estoppel: principles
An Anshun estoppel operates to preclude a person from raising a claim or issue in later litigation which, although not litigated in earlier litigation, was so closely connected with it that it was unreasonable for the party not to have raised it then.
The estoppel has its origins in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 in which Sir James Wigram VC said, at 319:
Where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.
This principle was applied in Anshun. Gibbs CJ, Mason and Aickin JJ held, at 602, that, in the context of that case, “there will be no estoppel unless it appeared that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”.
In Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 at [56], the plurality said of the Anshun estoppel:
An Anshun estoppel is not based upon degrees of similarity, which may be a matter of impression. It was made clear in Anshun that there could be no estoppel “unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it” …
(Emphasis in the original and citation omitted)
As was noted by Sloss J in Amcor Ltd v Barnes [2016] VSC 707 at [1593], the rationales for the Anshun estoppel include the avoidance of inconsistent judgments and multiplicity of proceedings, and the promotion of the efficient use of court resources and time.
In the determination of whether a matter is “so relevant” that it would have been “unreasonable” for it not to have been raised previously, the Court should not reason simplistically that because a matter could have been raised in the first proceeding, it should have been: Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33: (2010) 75 NSWLR 245 at [4]. Allsop P also noted that “the assessment is not to be made mechanistically, but rather there is a judgment to be made referrable to the proper conduct of modern litigation”.
The Anshun estoppel has been held applicable in judicial review proceedings: Kong v Minister for Immigration and Citizenship [2011] FCA 1345; (2011) 199 FCR 375 at [35]‑[36] and see the authorities cited therein.
The inter‑relationship between res judicata (cause of action estoppel), issue estoppel and Anshun estoppel was discussed by French CJ, Bell, Gageler and Keane JJ in Tomlinson v Ramsey Food Processing Ltd [2015] HCA 28; (2015) 256 CLR 507 at [22]:
Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
(Citations omitted)
Abuse of process: principles
The categories of abuse of process which may be encompassed by r 26.01(d) of the FCR are not closed. However, as noted by McHugh J in Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 286, “abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the Court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the Court’s procedures would bring the administration of justice into disrepute”. Earlier, at 256, Mason CJ noted that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other parties to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.
In the circumstances of this case, the respondents rely upon the circumstances stated by Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393, namely:
[P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and are oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock ... as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.
The respondents also referred to Tomlinson v Ramsey Food in which French CJ, Bell, Gageler and Keane JJ said:
[25]Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
[26]Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel …
(Citations omitted)
The Court exercises the power to dismiss proceedings as an abuse of process with caution.
Rule 26.01 – matters of approach
It is not necessary to elaborate on the expressions “frivolous” and “vexatious” appearing r 26.01(1) in any detail. It is sufficient to refer to Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 in which McKerracher J said:
[35]The expressions ‘scandalous’, ‘vexatious’ and ‘frivolous’ can be used either separately, or in conjunction, or interchangeably, with the expression ‘abuse of process of the court’ …
[36]A matter is ‘frivolous and vexatious’ where the ‘cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court’ …
[37]In relation to the term ‘frivolous’:
(a)a matter that is ‘frivolous’ may be described as one that is ‘without substance or groundless or fanciful’ …;
(b)a proceeding will be ‘frivolous’ where, despite whatever attempts are made to discern a cause of action in the case, it is still not arguable …; and
(c)‘frivolous’ may also describe a situation where a party is trifling with the Court or wasting the Court’s time …
[38] In relation to the term ‘vexatious’:
(a)a ‘vexatious’ proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. ‘Vexatious’ might also describe proceedings that are seriously and unfairly burdensome, prejudicial or damaging …;
(b)proceedings may also be described as ‘vexatious’ where they impose on a respondent party an unnecessary injustice in the form of a burden other than, and additional to, the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy …;
(c)a proceeding is to be regarded as ‘vexatious’ where:
(i)it is instituted with the intention of annoying or embarrassing the person against whom the proceeding is brought; or
(ii)it is brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which it gives rise; or
(iii)irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless …; and
(d)‘vexatiousness’ is a quality of the proceeding rather than a litigant’s intention, so that the question is not whether the proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious …
(Citations omitted)
The first and second respondents’ submissions
The submissions which I summarise below were those made at the hearing on 30 September 2020. I will defer for the time being consideration of the parties’ submissions on the application of the applicant to reopen.
The respondents submitted, first, that the applicant’s challenge to the lawfulness of his detention is foreclosed by the judgments in Matson Full Court and in Matson 2016. That is because:
(a)the applicant’s challenge to the validity of the decision made by Minister Keenan under s 16 to issue a notice of acknowledgement of receipt of the extradition request by the USA was part of the subject matter of the s 39B application in Action QUD569/2016 which had been rejected in Matson Full Court, at [80]‑[102];
(b)the applicant had challenged the decision of Magistrate Cosgrove made under s 19 of the Act that he was eligible for surrender to the USA in Action QUD89/2016 by disputing that the eligibility criteria contained in s 19(2) had been satisfied. For this purpose the applicant had raised alleged deficiencies in the documents supporting the extradition request. Justice Rangiah rejected that challenge in Matson 2016 and the applicant’s appeal against Matson 2016 had been dismissed in Matson Full Court; and
(c)likewise, the applicant’s challenge to the issue by Magistrate Morrison of the warrant for his arrest under s 12 of the Act had been determined in Matson Full Court.
Next, the respondents submitted that the application for the issue of a writ of habeas corpus and an order for the applicant’s release from custody could be seen now to have no reasonable prospects of success. That is because the applicant is being held in custody pursuant to the order of Magistrate Cosgrove of 15 January 2016, made pursuant to s 19 of the Act. So long as the order made by Magistrate Cosgrove under s 19(9) of the Act stands, there is no basis for habeas corpus or for the challenge to lawfulness of the applicant’s detention: Rahardja v The Governor, Long Bay Gaol [2002] NSWSC 1253 at [8] and Marku v Minister for Justice [2015] FCA 831; (2015) 237 FCR 580 at [37]. The respondents also submitted that the matters concerning the lawfulness of his detention are so closely connected with the issues agitated before the Full Court culminating in Matson Full Court, that the applicant should not be permitted to agitate them in these proceedings.
The respondents submitted that the applicant’s challenges to the lawfulness of his surrender to the USA (the challenges to the decisions under ss 22 and 23 of the Act) are the subject of Action QUD107/2020 on which, at the time of hearing on 30 September 2020, Rangiah J had reserved judgment. They contended, in effect, that the applicant should not be permitted to agitate the same issues before two different Judges.
In relation to the applicant’s claims of contraventions of the ICCPR and the breach of the asserted constitutional right to freedom from cruel or inhuman punishment, the respondents submitted that these matters had been agitated before Rangiah J in Action QUD107/2020 and, in any event, had no reasonable prospect of success. With respect to the latter objection, counsel noted that the ICCPR, like any other treaty, does not, without more, become part of Australian domestic law: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286‑7; Tajjour v New South Wales [2014] HCA 35, (2014) 254 CLR 508 at [96]. Counsel also submitted that the surrender of the applicant to the USA would not amount to “punishment” in a constitutional sense, referring to Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614 at [34] (Gleeson CJ), at [105], [115] (Gummow and Hayne JJ).
Counsel also referred to other indicia which he contended were inconsistent with the kind of implied constitutional prohibitions for which the applicant contends.
Next, the respondents submitted that the applicant’s attempt in the Proposed FAOA to invoke the protection of freedom of religion contained in s 116 of the Constitution should be seen now as having no reasonable prospects of success. Counsel referred to Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 in which Brennan CJ said, at 40:
To attract invalidity under s 116, a law must have the purpose of achieving an object which s 116 forbids.
See also Gummow J at 160. Although Toohey and Gaudron JJ were in dissent in Kruger, it is evident that their Honours considered that, in order for a law of the Commonwealth to infringe s 116, it must have as at least one of its purposes the prevention of free exercise of religion (at 86 and 133).
Counsel submitted that, on any reasonable view of the Act, it could not be regarded as having a purpose prohibited by s 116. I indicate now my acceptance of this submission.
The respondents’ final submission was directed to Proposed Order 7 in the Proposed FAOA, namely, the claim that the Treaty and the Act itself are invalid “under the Constitution”. The first three particulars which the applicant gave in support of that claim are that the “current form and practice” of the Treaty and the Act contravene implied constitutional rights, are inconsistent with fundamental human rights under the ICCPR, and are not for the peace, order or good government of the Commonwealth with respect to the “external affairs power” contained in s 51(xxix) of the Constitution. The fourth is that both the Treaty and the Act are invalid as they infringe the “religious freedom” of Indigenous Australians for which s 116 of the Constitution provides by failing to recognise their “special connection” with Australia. Counsel submitted that this claim should be seen now as being untenable and made the following points:
(a)the validity of the Act does not depend upon the validity of the Treaty: Horta v Commonwealth of Australia [1994] HCA 32; (1994) 181 CLR 183;
(b)the assertion that the Act is not authorised by s 51(xxix) of the Constitution cannot be sustained having regard to Vasiljkovic at [36] (Gleeson CJ), [87]‑[88] (Gummow and Hayne JJ); and
(c)the remaining matters on which the applicant relies are untenable for the reasons put forward in the respondents’ earlier submissions.
The applicant’s submissions

The applicant commenced on 30 September 2020 with submissions that:
(i)he should be granted leave to file and serve the Proposed FAOA (this submission was initially directed to the proposed AOA, but I understood it to be pressed in relation to the later filed Proposed FAOA);
(ii)the Court should not determine the summary judgment/strike out application before determining whether or not the applicant should have leave to amend the Originating Application; and
(iii)the Court should not determine the summary judgment/strike out application until all of the seven respondents named in the Proposed FAOA have been served with the proceedings.
The applicant framed the second and third of these matters as issues going to the Court’s power. As the Court plainly has the power to take each of these steps, I took the applicant to be raising matters going to the exercise the Court’s discretion. Account will be taken of them in relation to the other issues raised by the interlocutory applications.
The second matter raised by the applicant was that the respondents should not be permitted to rely on res judicata and Anshun estoppel because they had failed to “plead” these matters properly in their interlocutory application. The applicant is correct in submitting that the respondents’ interlocutory application of 11 September 2020 does not refer expressly to the doctrines of res judicata and Anshun estoppel. However, the respondents’ reliance on these doctrines was first foreshadowed at the case management hearing (CMH) on 2 September 2020 (the applicant was not present at that CMH but the Court organised a copy of the transcript of that hearing to be provided to him). Moreover, the respondents’ reliance on these doctrines was stated in the affidavit which accompanied the interlocutory application of 11 September 2020 and was confirmed in the respondents’ outline of submissions filed the same day.
The critical matter is not whether these doctrines had been “pleaded” properly as the respondents’ interlocutory application is not a pleading. The issue instead is whether the applicant had been on sufficient notice of the respondents’ reliance of them. It is plain that, by reason of the matters just mentioned, the applicant had had such notice. He did not claim that he had not been able to prepare adequately for the hearing on the basis that res judicata and Anshun estoppel would be in issue. On the contrary, he made a detailed submission by way of response.
I also note the incongruity in the applicant taking a “pleading point” against the respondents in the circumstance that he had provided the respondents with his Proposed FAOA only late on the day immediately preceding the hearing of the interlocutory applications.
Accordingly, I conclude now that there is no merit in the applicant’s “pleading” point.
The applicant’s principal submissions by way of resistance to the summary judgment/strike out application were first that there is a prima facie case of “third party fraud”, “collusion” and “executive lawlessness” on the part of senior Departmental officers at AGD and on the part of officials of the USA which affected the decisions of Ministers Keenan and Hunt, Magistrates Morrison and Cosgrove and Rangiah J. He then contends that “the entire extradition process has been tainted by the collusion and lawless conduct of both the USA and Commonwealth government officials, that the “third party fraud”, “collusion” and “executive lawlessness” on the part of the USA and Commonwealth government officials had “both subverted and stultified” all stages and decisions made under the Act throughout the extradition process with much of the evidence coming to light only recently. I will refer to this submission as the “Decision Invalidity Ground”.
In support of these submissions, the applicant referred to the strict view which the courts take of fraud, in particular, fraud affecting administrative decisions. He referred to the statement of Denning LJ in Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712‑3:
No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to fund fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever …
The applicant also referred to SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, (2007) 232 CLR 189 at [11]‑[22] (specifically at [15]) and to SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158, (2013) 308 ALR 266 at [41]. He noted the conclusion of the High Court in SZFDE that the “fraud” of a rogue which had resulted in the applicants not attending a hearing before the Refugee Review Tribunal had the effect that the decision made by the Tribunal should be regarded in law as no decision at all, at [52], and by implication, contended for a similar view of the relevant decisions in this case. The applicant also noted the Court’s statement, at [38], that the assessment of the existence of fraud could take account of any relevant material before the Court.
Secondly, the applicant relied for several of his claims in these proceedings on the circumstances created by the COVID‑19 pandemic, describing the pandemic as being “front and centre” of each of his grounds. He submitted:
[I]t’s my submission, your Honour, that, for example, with Order 1, the declaration, that any surrender to the United States would be unlawful. If we refer to particulars there’s three grounds that are outlined and they are due to the ongoing escalation of COVID‑19 and the unacceptably high risk to health and well‑being of the applicant, that by exposing the applicant [to] COVID‑19 that would be in breach of fundamental human rights, including under Article 7, Protection from Cruel and Unusual Punishment, and by exposing the applicant to COVID‑19 that could potentially separate him permanently from his community, culture and country. Now, your Honour, no court has had that, those matters, agitated before them and it’s my submission that therefore the doctrines of Anshun estoppel, res judicata and abuse of process simply don’t apply.
Although the applicant did not express it this way, the submission seemed to be that, even if the s 22 Decision and the issue of the Surrender Warrant were valid at the time they were made, the execution of the Surrender Warrant in the circumstances of the COVID‑19 pandemic would be unlawful.
Next, the applicant submitted that Anshun estoppel does not operate in an absolute way as it recognises that there may be circumstances in which a party may be permitted to agitate an issue in later proceedings even though one may have expected, ordinarily, that issue to have been agitated in the earlier proceedings. He referred to Anshun at 602‑3 in which Gibbs CJ, Mason and Aickin JJ said:
In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings, e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.
See also Timbercorp Finance Pty Ltd (in liq) v Collins [2016] VSCA 128 at [207] which was affirmed by the High Court in Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212.
Consideration of the first and second respondents’ application
It is plain that some of the issues which the applicant wishes to agitate in these proceedings have been agitated in his previous proceedings and have been the subject of decisions of this Court. This includes the Decision Invalidity Ground.
Proposed Order 6 – the validity of the previous extradition decisions
It is convenient to consider first the various claims which the applicant makes to support Proposed Order 6. There were minor differences in the drafting of some of the particulars to Proposed Order 6 in the Proposed FAOA, compared with the originating application when filed, but in the view I take of the matter, it is not necessary to note them presently.
Review of the s 16 decision
The applicant seeks to impugn the s 16 Decision as part of Proposed Order 6 (and relies on the same particulars in Proposed Orders 2, 3 and 4). He had impugned unsuccessfully the validity of that decision in the judicial review proceedings Action QUD569/2016 determined in Matson Full Court. It is true that the Full Court rejected the applicant’s claim by reference to his claim that there was a “compelling case” of abuse of process or fraud on the extradition power “by reason of egregious delay on the part of the prosecution authorities, a lack of candour or obfuscation in explaining that delay and prejudice to Mr Matson flowing from that delay”, at [81]. See also [89]‑[90] of the reasons of the Full Court set out earlier in these reasons.
However, the applicant’s amended application for judicial review in Action QUD569/2016 had impugned the validity of the s 16 Decision on multiple grounds (23 in all). These included grounds alleging lawless conduct, denial of natural justice, bad faith and lack of good faith, non‑disclosure of relevant documents, legal unreasonableness, irrationality, acting under dictation, bias, infringement of implied Constitutional rights, deliberate delay, errors of law, improper purpose, abuse of process, and failure to have regard to Australia’s obligations under international treaties (including the ICCPR and the Universal Declaration of Human Rights). At the hearing before the Full Court, the applicant (then represented by senior counsel) did not pursue all those grounds, relying instead on the alleged “egregious delay” and “lack of candour or obfuscation”.
An orthodox application of the principles of res judicata precludes the applicant from agitating the claim that the s 16 Decision was invalid for a second time. That is so even though some of the grounds in the Proposed FAOA and in the originating application as filed on 4 August 2020 are different from those contained in the amended application in Action QUD569/2016. The cause of action has merged into the judgment of the Full Court. It would moreover be oppressive for the respondents to be vexed with it again, it not being material that the respondents to the present application differ in some respects from the respondents to Action QUD569/2016.
Review of the s 19 decision
The respondents are correct in submitting that there has been a judicial determination of the applicant’s challenge to the decision of Magistrate Cosgrove under s 19 of the Act that he was eligible for surrender to the USA. That challenge was rejected by Rangiah J in Matson 2016 and the appeal against that decision was dismissed in Matson Full Court. The doctrine of res judicata applies also to those decisions and precludes the applicant seeking to agitate the same matters in relation to Proposed Order 6. To the extent that Proposed Orders 2, 3 and 4 raise the same issues, they too are precluded by the principles of res judicata.
Review of the s 12 decision
The applicant is correct in contending that neither of the decisions in Matson 2016 nor Matson Full Court addressed the validity of the decision of Magistrate Morrison under s 12 to issue the warrant for his arrest. But that is because the applicant expressly abandoned his challenge to the decision of Magistrate Morrison – see page 2 of the transcript before the Full Court and [3] of the Outline of Submissions of the respondents filed on 23 May 2017.
Moreover, the applicant’s challenge to the decision of Magistrate Cosgrove under s 19 did not raise any challenge to the anterior decision of Magistrate Morrison under s 12 to issue a warrant for his arrest, or to the arrest itself. On the contrary, the applicant had accepted that he was a person on remand so as to satisfy the requirements of s 19(1)(a). Rangiah J had noted the absence of any issue about this circumstance in Matson 2016, at [15].
Accordingly, it should be held that an Anshun estoppel precludes the applicant from now raising any issue about the action taken under s 12. Alternatively, his attempt to pursue such a claim now is an abuse of the Court’s process. That is so despite the difference in the identity of the respondents.
Review of the s 22 Decision and the issue of the surrender warrant
It is plain that Action QUD107/2019 involved a challenge by the applicant to the s 22 Decision and to the issue of the Surrender Warrant. To indicate why that is so, it is necessary to say a little more about those proceedings.
As noted earlier, on 11 February 2019, the applicant commenced Action QUD107/2019 seeking judicial review of the s 22 Decision and of the issue of the Surrender Warrant. The sole respondent to that proceeding was the Commonwealth of Australia. The application showed on its face that it had been prepared by the applicant’s then senior counsel, Mr Morris QC, who continued to represent the applicant until shortly after the commencement of the substantive hearing of the application on 18 November 2019.
In the originating application in Action QUD107/2019 as filed, the applicant sought the following substantive relief under s 39B of the Judiciary Act:
1.A Writ of Prohibition to quash, and to prohibit further enforcement of, the decisions made on 1 February 2019 by the Honourable Greg Hunt MP, as acting Attorney‑General of the Commonwealth:
(a)that the Applicant be surrendered to [the USA] in purported pursuance of section 22 of [the Act]; and
(b)to issue a warrant for the Applicant’s surrender in purported pursuance of section 23 of [the Act].
2.An injunction to restrain the Attorney‑General of the Commonwealth from:
(a) giving effect to the said decision; or
(b)making or purporting to make further decisions to like effect otherwise than in accordance with sections 22 and 23 of [the Act].
(Emphasis added)
The attached grounds indicated that the applicant asserted that the s 22 Decision was invalid because it had not been made as soon as reasonably practicable after the applicant became “an eligible person” for the purposes of s 22, and was not made, or not made exclusively, in relation to a “qualifying extradition offence” or “qualifying extradition offences”.
By 21 October 2019, the applicant had foreshadowed seeking leave to amend the originating application in Action QUD107/2019. On that day, Rangiah J made an order that the proposed amended application be filed by 28 October 2019 and directed that, in the absence of a proposed amended application being filed, the matter would proceed to hearing on 18 November 2019 on the basis of the originating application filed on 11 February 2019.
The applicant did not comply with the order of 21 October 2019. He did, however, file a document entitled “Amended originating application for relief under section 39B of the Judiciary Act 1903 (Cth)” on 7 November 2019 (the Draft Amended Originating Application). This document had been prepared by the applicant himself and sought to expand significantly the relief which had been sought in the originating application, by claiming:
1.An order in the nature of certiorari quashing the Respondent's decision to surrender the Applicant to the US, made on 1 February 2019 under s 22 of the Extradition Act 1988 (Cth) (Surrender Decision).
2.An order in the nature of injunction preventing the Respondent from making any further decision or taking any further action in relation to the Surrender Decision.
3.An order in the nature of prohibition preventing the Respondent from executing the surrender warrant issued in relation to the Applicant under s 23 of the Extradition Act 1988 (Cth) on 1 February 2019 (Surrender Warrant).
4.An order in the nature of a declaration that the Surrender Decision made by the Respondent and the Surrender Warrant are invalid and of no effect.
5.An order in the nature of a declaration that the Surrender Decision was not authorised by the Extradition Act 1988 (Cth).
6.An order in the nature of a declaration that the Surrender Decision was unlawful and violates the Applicant's fundamental human rights under the ICCPR, the ICERD, the UDHR and the CAT, and further violates the Applicant's constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment under the Constitution.
7.An order in the nature of a declaration that the Respondent is required to direct the Applicant's release.
8.An order in the nature of a declaration that the warrant of imprisonment issued under s 19(9) of the Extradition Act 1988 (Cth) in relation to the Applicant be permanently stayed.
9.An order in the nature of a declaration that the Applicant's present and ongoing detention since 26 October 2015 is unlawful and violates the Applicant's fundamental human rights under the ICCPR, the ICERD, the UDHR and the CAT and violates the Applicant's constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment under the Constitution.
10.An order in the nature of a declaration that Part II of the Extradition Act I 988 (Cth) and the Extradition (United States of America) Regulations are invalid under the Constitution.
11. Costs.
(Emphasis added)
As is apparent, these claims put in issue the validity of the s 22 Decision and the issue of the Surrender Warrant, the validity of the applicant’s continued detention having regard to the asserted constitutional implied rights, and the validity of the Act and the Regulations made under it (the Regulations). The applicant also sought to restrain action being taken to execute the Surrender Warrant. The grounds in the Draft Amended Originating Application relied upon to support the extended claims to relief extended over some 33 pages.
The judgment in Action QUD107/2019 (Matson 2020) is substantial and addressed the various claims of the applicant contained in the Draft Amended Originating Application.
The applicant has commenced an appeal against Matson 2020. He submitted that this circumstance meant that the judgment in Matson 2020 could have no bearing on the outcome of the present applications. I do not accept that submission. The orders of the Court are valid until set aside: New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 at [32] and see the authorities cited therein. The mere filing of an appeal against the Court’s orders does not mean that the orders, and the reasons supporting them, are of no consequence. The judgment stands and is not to be regarded as provisional or subject to confirmation on appeal.
One of the central issues raised by the Draft Amended Originating Application and addressed in Matson 2020 was the applicant’s claim that the s 22 Decision made on 1 February 2019 be quashed and the Attorney‑General be prohibited from giving effect to that decision – see [21]. Rangiah J identified, at [85], the overarching grounds on which the applicant impugned the s 22 Decision as:
A.The procedures that were required by law to be observed in connection with the making of the Surrender Decision and issuing of the Surrender Warrant were not observed;
B.That the Surrender Decision and issuing of the Surrender Warrant were not authorised by the enactment in pursuance of which they were purported to be made;
C.That the Surrender Decision and issuing of the Surrender Warrant involved an error of law; and
D.That the Surrender Decision and issuing of the Surrender Warrant were otherwise contrary to law.

I add that in the 2PFAOA, the applicant seeks to raise an additional ground for his contention that Act and the Treaty “are invalid and beyond power under the Constitution”. As previously indicated, I have decided that the applicant should not be permitted to reopen. It is convenient to refer to the additional ground of invalidity later when giving my reasons for refusing the application to reopen.
For the reasons given above, I consider that Proposed Order 7 does not have reasonable prospects of success.
The applicant’s 6 January 2021 application to reopen
In this section of the reasons, I give my reasons for refusing the application of the applicant in the fifth interlocutory application for leave to reopen the proceedings.
The interlocutory application indicated that the applicant sought to reopen the proceedings in order to seek leave to file (and rely upon) yet a further amended originating application, to seek orders for a “temporary stay” and to seek an order with respect to a medical and psychological assessment. The respondents opposed the grant of leave to reopen. I will address first that part of the application which concerned the 2PFAOA.
The applicable principles
The principles on which the Court acts when considering an application to reopen a matter before the delivery of judgment are settled. The overriding principle is the interests of the administration of justice having regard to the circumstances of the case: Inspector‑General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], [26]; Brown v Petranker (1991) 22 NSWLR 717 at 729; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478; Harrington Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338, (2004) 207 ALR 483 [121]; and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456, (2014) 243 IR 468 at [48].
In Bradshaw, Kenny J identified at [24] four overlapping classes of cases in which a court may grant leave to reopen: fresh evidence; inadvertent error; mistaken apprehension of the facts; and mistaken apprehension of the law. The applicant’s present application seems to be in the first and fourth of these categories.
The matters bearing on the interest of justice are various. They include:
·the public interest (and the interests of the particular parties) in litigation being conducted efficiently and expeditiously;
·the public interest in the finality of litigation, with the consequent expectation that litigants will present all their evidence and submissions at the one hearing;
·the significance of the proposed new evidence and submissions in the context of the hearing
·the explanation for the evidence not having been led at the trial;
·the likely prejudice to the opposing party if the application is allowed;
·the potential detriment to the applying party if the application is refused; and
·any delay by an applicant in seeking leave to reopen.
Regard should also be had generally to the overarching purpose of the Court’s civil practice and procedure provisions stated in ss 37M and 37N of the FCA Act.
The basis for the application to reopen
In the interlocutory application, the applicant said that he sought the leave by reason of a “significant development”, namely, the provision to him of the December Letter in which the Attorney‑General stated that he had no power to remake or reconsider a determination made under s 22 of the Act. The applicant annexed a copy of the December Letter to his supporting affidavit. In the first two paragraphs of that letter the Attorney‑General stated:
Thank you for your letter of 11 August 2020 in which you asked me to reconsider the determination made by the Acting Attorney‑General, the Honourable Greg Hunt MP, to surrender you to the United States of America.
I appreciate the time you have taken to bring this matter to my attention. However, I do not have the power to remake or to consider a surrender determination made under s 22 of the Extradition Act 1988 (Cth).
The claims in 2PFAOA
The 2PFAOA refers to the December Letter in relation to three of the proposed orders. In support of the application for a declaration that the Treaty and the Act “are invalid under the Constitution” (Proposed Order 7) the applicant wishes to add a new particular:
(7(e))[The Act] and [the Treaty] … are invalid and beyond power under the Constitution as in its current form and practice it does not allow the Attorney‑General to revoke, remake or reconsider a determination made under s 22 of [the Act], which puts Australian citizens lives at risk, breaches fundamental human rights and constitutional implied rights of Australian citizens and therefore the exercise of legislative power is not proportional to, nor is it appropriately adapted to section 51 xxix external affairs head of power in the Constitution, and is inconsistent with recognising the "human dignity” of a person as a full member of the human community.
The applicant then seeks to add claims for two additional orders:
(8)An order in the nature of a "declaration" that the determination made by the Acting Attorney-General, the Honourable Greg Hunt MP under s 22 of [the Act] (the Surrender Decision) to surrender the Applicant to the United States of America (the USA) is unlawful and invalid.
Particulars
a)Due to the Attorney-General, the Honourable Christian Porter MP failing to revoke, remake or reconsider the Surrender Decision in circumstances where it is plainly necessary and appropriate to do so, including because of COVID-19 and the Applicant's deteriorating physical and mental health, which the Attorney-General has purported to justify on the erroneous basis that he has no power to remake or reconsider a determination made under s 22 of [the Act]. Please note: The Attorney-General has recently personally written a letter (undated) to the Applicant to inform him that that he has no power to remake or reconsider a determination made under s 22 of [the Act]. See: Annexure "BPM-1" of the Applicant's affidavit sworn 6 January 2021.
(9)An order in the nature of a "Mandamus" to compel the Attorney-General of the Commonwealth of Australia to revoke, remake and reconsider the determination made by the Acting Attorney-General, the Honourable Greg Hunt MP under s 22 of [the Act] to surrender the Applicant to the USA, which existing determination is unlawful and invalid.
Particulars
a)The circumstances of the Appellant's case make it plainly necessary and appropriate for the Attorney-General, The Honourable Christian Porter M.P. to revoke, remake and reconsider the determination made by the Acting AttorneyGeneral, the Honourable Greg Hunt MP under s 22 of [the Act] to surrender the Applicant to the USA, including because of the Applicant's "special connection" to Australia as a First Nations person and the likely hardship for him and his family as a result of him being permanently separated from his family, community, culture and country; the ongoing escalation of the COVID-19 pandemic in the USA which puts the Applicant's life at risk; the unresolved issue of the "withheld documents" which file has now been deleted by the AttorneyGeneral's Department; the fact that the Applicant faces the largest ever prison sentence faced by an Australian citizen in Australian legal history; and because of the Applicant's deteriorating physical and mental health.
(Emphasis in the original)
Consideration of reopening with respect to the 2PFAOA
The manner of expression of particular (e) to Proposed Order 7 suggests that the applicant accepts that the Attorney‑General is correct in asserting that he does not have power to remake or reconsider a surrender determination made under s 22 of the Act. However, the manner of expression of Proposed Orders 8 and 9 tends to suggest that the applicant asserts that the Attorney‑General is mistaken in the view which he has taken of his powers. That was the view which the applicant advanced on the hearing of the application to reopen.
The applicant referred to Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 as authority for the proposition that the Attorney‑General does have power to revoke or vary a decision made under s 22 of the Act. In that case, the Minister had, following a reduction in the number of charges for which the extradition was sought, revoked the issue of an earlier surrender warrant and had determined in its place that the person be surrendered on the reduced counts. However, the Minister’s power to do so was not the subject of any consideration by the High Court: see [1] (Gleeson CJ and McHugh J), and [59] (Kirby J). That is to say, while the exercise of the power to revoke was part of the circumstances giving rise to the appeal in Foster, the validity of that exercise had not been in question.
Counsel for the respondents did not accept that the Attorney‑General had been incorrect in stating that he lacked the power to revoke or amend the s 22 Decision, noting instead that there was “no obvious power under the Act to reconsider”. Counsel did not, however, refer to any authority which supported the Attorney‑General’s view of his powers.
Given the decision in Foster, it is at least reasonably arguable that the Attorney‑General was incorrect in the view which he took of his powers. Nevertheless, I conclude for a number of reasons that it was not in the interests of justice to allow the reopening with respect to the 2PFAOA.
First, it is not reasonably arguable that any failure by the Attorney‑General in December 2020 to reconsider or revoke the s 22 Decision could have the effect of rendering “unlawful and invalid” the s 22 Decision made by the Acting Attorney‑General, Mr Hunt MP, on 1 February 2019, as the applicant wishes to claim in Proposed Order 8. Plainly, such a claim has no reasonable prospects of success.
Secondly, having regard to the matters to which I referred in relation to the applicant’s existing claims concerning the validity of the Act, it is not reasonably arguable that a lack of power by the Attorney‑General to reconsider and revoke a surrender decision (if that be the case) could have the effect of rendering invalid the Act, Pt 2 of the Act, or even s 22 of the Act. The circumstance that the applicant has identified a different “peg” on which to hang his submissions concerning implied constitutional rights does not alter the position stated earlier. The matter contained in the proposed [7(e)] cannot have the effect of making the claim for Proposed Order 7 reasonably arguable.
I also consider that the claim for Proposed Order 9 is not reasonably arguable. Even if the Attorney‑General does have a power to reconsider and revoke a s 22 decision, the Attorney‑General cannot be compelled to exercise it, let alone to exercise it in the applicant’s favour. In this regard, counsel for the respondents referred to Rivera v Minister for Justice and Customs [2007] FCAFC 123; (2007) 160 FCR 115 in which Emmett J said:
[14]Finally, under s 22(3)(f), the Minister must consider that the person should be surrendered in relation to the offence. Thus, the Minister has a general discretion whether to surrender an eligible person or not. The discretion is unfettered and the Minister may, in the exercise of the discretion, take into account any matters, or no matters, provided that the discretion is exercised in good faith and consistently with the objects, scope and purpose of the Act.
As counsel for the respondents submitted, the matters which the applicant now says will compel the Attorney‑General to revoke the s 22 Decision are not matters which the Act requires to be considered in the making of a surrender determination. That being so, even if it be the case that the Attorney‑General is obliged to make his decision on a correct understanding of the law, it is difficult to see how the matters on which the applicant relies could compel the revocation of an earlier surrender determination. That is especially so in the context that the Act includes s 26(5) and (6).
I mention that the 2PFAOA sought to revise in some respects the claims for Proposed Orders 1 to 6 and the particulars in support of those proposed orders. Account was taken on those revisions in the consideration of the claims for each of those proposed orders. None of those revisions has the effect of making the applicant’s claims reasonably arguable. Further, the very fact that the applicant seeks to revise (even in minor respects) his articulation of the proposed orders and the particulars on which they are grounded after the presentation of the parties’ submissions is a matter counting against it being in the interests of justice to allow the reopening.
Reopening for psychological assessment
By [4] of the fifth interlocutory application, the applicant seeks a “temporary stay” of the respondents’ interlocutory application of 11 September 2020 until all respondents have been served with the 2PFAOA and until such time as he has been psychologically and physically assessed. The application asserts that the applicant has respiratory problems making him more susceptible to COVID‑19, that he has other “nervous physical related disorders” and that he is concerned about other medical conditions including “dementia and the possibility of lung cancer and other types of cancer”.
Next, the applicant seeks an interlocutory order that the Commonwealth pay for “a psychological assessment and full physical assessment”, by reason of concerns about his mental and physical health after having been held so long in a maximum security prison facility.
The applicant made oral submissions in support of this part of the interlocutory application at the hearing on 4 February 2021 but did not provide any evidence in support of those claims. It is of course for the applicant to provide the evidence on which he seeks orders from the Court. Further, the provision of appropriate care and treatment for prisoners with issues affecting their health is generally the responsibility of the prison authorities (R v Smith (1987) 44 SASR 587 at 587). It is not ordinarily a matter upon which the Court intrudes.
In my view, the applicant has not shown any proper basis upon which the Court could presently make interlocutory orders of the kind that he seeks concerning his medical and psychological assessment. Nor has the applicant shown a basis on which it would be appropriate for the Court to order “a temporary stay” of the respondents’ interlocutory application of 11 September 2020. Accordingly, this aspect of the application to reopen is not made out.
Conclusion on the application for reopening
I accept that, this being a matter in which the liberty of the applicant is at stake, the Court should not adopt a narrow view in considering the exercise of the discretion to allow reopening. I also accept that the matters are important to the applicant and that he is anxious to agitate every possible means by which he may resist his extradition to the USA. But there are other considerations to which I referred earlier. In particular, the public interest in litigation being conducted efficiently and expeditiously and the public interest in the finality of litigation are important. There is a limit on the number of occasions in which the applicant can seek to agitate the same claims, claims of the same nature and claims on the same or similar grounds even when seeking to base them on different legal “pegs”. In my view, the limit has been reached in this case.
These are my reasons for refusing the application for leave to reopen contained in the fifth interlocutory application.
Other matters bearing on the abuse of process
There are other matters indicating that the originating application, the AOA, the proposed FAOA and the 2PFAOA may have a vexatious quality. There was no need for the applicant to have named the former USA President, Mr Trump or the former USA Attorney‑General, Mr Barr, as respondents. There is no basis on which it could be said that they have had any involvement in the steps towards the applicant’s extradition. The naming of the USA as a respondent would have been sufficient to give it the opportunity to be heard in respect of the relief which the applicant seeks.
The applicant’s re‑ordering in the AOA and the proposed FAOA of the sequence in which the respondents are named, so as to have Mr Trump and Mr Barr named as first and second respondents in lieu of the Attorney‑General of Australia, is also suggestive of vexation. So also was his naming of Mr Morrison, the current Australian Prime Minister, as a respondent.
However, it is not necessary to express a concluded view about these matters, nor to rest my decision on them.
I mention that on 5 February 2021, the applicant caused to be sent to my Associate a further affidavit, by which he sought, in effect, to make further submissions in relation to the hearing of the fifth interlocutory application which had occurred on 4 February 2020. I have declined to have regard to that affidavit: the applicant was not given leave to file a further affidavit or to make further submissions; the affidavit was not sent with the consent of the respondents; it did not appear that the applicant had even sought their consent; the applicant had not complied with cl 2.4 of the Guide to Communications with Chambers Staff and cl 15 of the Central Practice Note: National Court Framework and Case Management (CPN-1); I was concerned about the provision of procedural fairness to the respondents; and it is not usually in the interests of justice for the Court to continue to receive unsolicited submissions from a party after a hearing has concluded.
A second application to reopen
On 19 February 2021, the applicant sent an interlocutory application bearing the same date to my Associate. By that application he seeks leave to “reopen” the 6 January interlocutory application (to which I have referred in these reasons as the “fifth interlocutory application”), leave to “reopen” his application seeking leave to reopen heard on 4 February 2021 (which I understand to be leave to make further submissions), leave to file his affidavit of 5 February 2021 (mentioned in [203] above), and leave to file supplementary submissions entitled “Applicant’s Supplementary Submissions” dated 19 February 2021.
The Applicant’s Supplementary Submissions document contained the applicant’s submission in support of his application to reopen, his explanation for not having made all the submissions on 4 February 2021, and the submissions he would make if the reopening was allowed. The applicant recognised that he needed leave to file the interlocutory application and made submissions in support of the grant of that leave also.
I have decided (without inviting responsive submissions from the respondents) that, despite the applicant’s evident anxiety that no stone should be left unturned in his efforts to avoid extradition, leave to file the interlocutory application of 19 February 2021 should be refused for the following reasons:
(a)the time for making submissions in support of the fifth application was on 4 February 2021. Litigants are expected to present all their submissions in the one hearing. Even though the applicant is representing himself, that expectation applies to him also. I note that the applicant had received assistance from a legal practitioner, Mr Finlayson, in respect of the hearing on 4 February 2021;
(b)there is no indication that the applicant has even sought the consent of the respondents to the grant of leave which he seeks, but it may be assumed safely that the respondents would oppose the grant of leave to reopen;
(c)there would be unfairness, if not vexation, to the respondents in having to deal with a further application to reopen (noting that the applicant made three applications to reopen in Action QUD107/2019) and had filed successive iterations of an application to reopen in these proceedings on 6 and 7 January 2021;
(d)the applicant cannot reasonably have been in doubt that his application of 6 January 2021 to reopen would be heard on 4 February 2021;
(e)it is not uncommon for counsel, including senior counsel, to think after a hearing has concluded of something further which could have been said, but the courts do not usually permit further submissions to be lodged;
(f)many of the submissions which the applicant now wishes to make were capable of being advanced either in the applicant’s written submissions or in his oral submissions on 4 February 2021. They are not matters which have arisen only since 4 February 2021 or which the applicant could not reasonably have anticipated then. I note again that the applicant had legal assistance in relation to the hearing on 4 February 2021. It is not a matter of the applicant not having had a reasonable opportunity to present his submissions. That is especially so given his previous experience on applications to reopen. The applicant well knew the matters to be addressed in support of an application to reopen;
(g)the grant of leave to reopen would mean further delay in the delivery of this judgment, which delivery has been delayed by the interlocutory application of 6 January 2021;
(h)the grant of the leave sought by the applicant would not be consistent with the overarching purpose to which ss 37M and 37N of the FCA Act refer; and
(i)there comes a time when the interests of justice require finality. That time has been reached.

The applicant’s affidavit of 5 February 2021, his letter of 19 February 2021 to my Associate and the attachments, being his interlocutory application of 19 February 2021 and the document entitled “Applicant’s Supplementary Submissions” dated 19 February 2021 will be placed on the Court file (without being accepted for filing) so that they can be identified, if necessary in the future.
I add that on 2 March 2021 the Court received a letter from Mr Matson seeking leave of the Court to withdraw Grounds 3 and 5 from the originating application as filed and as contained in the 2PFAOA. I understand this to be a request to withdraw proposed Ground 3 (habeas corpus) and Ground 5 (exemplary damages) from the claims for relief. In the view I take of the matter as set out above, it is not necessary to consider the applicant’s application for leave.
Conclusion on the first and second respondents’ interlocutory application
Whether it be the originating application as filed, the AOA, the proposed FAOA or the 2PFAOA, I consider that it should be held now that the application has no reasonable prospects of success. There is no need to defer giving effect to that conclusion until the remaining respondents have been served. Accordingly, the applications to amend in the form of the AOA and the proposed FAOA should be refused and judgment should be entered for the first two respondents, the Attorney‑General for the Commonwealth and the Commonwealth itself, by dismissing the application against them. The applicant’s claims against Mr Trump, Mr Barr and the USA have no better prospects of success. They too should be dismissed.
The bail application
My conclusion that the originating application should be dismissed, makes it unnecessary to address the applicant’s interlocutory application for bail contained in that application. However, in case this matter goes further, I will do so briefly.
The applicant, who was represented by counsel on the application for bail, submitted that the Court’s power to order bail arises pursuant to s 39B of the Judiciary Act. More particularly, he submitted that s 15(3) of the Act is applicable. In my opinion, that involved a mistaken understanding of the Act. Section 15 concerns the procedure to be adopted after a person is arrested under an extradition arrest warrant as occurred in the applicant’s case on or shortly before 26 October 2015. Section 15(1) provides that the arrested person is to be brought as soon as practicable before a Magistrate or an eligible Federal Circuit Court judge. Section 15(2) requires that the Magistrate or Judge remand the person in custody or, subject to some qualifications, on bail. Section 15(3) to which counsel for the application referred states:
If a person is remanded in custody after making an application for bail, the person cannot make another application for bail during that remand unless there is evidence of a change of circumstances that might justify bail being granted.
Relying on this provision, counsel sought to demonstrate the requisite change of circumstances.
However, on my understanding, the applicant is presently held in custody pursuant to the order of remand made by the Magistrate under s 19(9) of the Act on 15 January 2016. The remand pursuant to s 15 then ceased. Accordingly, s 15(3) is inapplicable.
Another part of the submissions of the applicant’s counsel indicated that the application for bail was made pursuant to s 49C of the Act. That section provides:
49C Availability of bail during judicial review proceedings relating to certain determinations
(1) This section applies if:
(a)the Attorney‑General determines under subsection 15B(2) or 22(2) that a person is to be surrendered to an extradition country in relation to one or more extradition offences; and
(b)the person applies to a court for judicial review of the determination.
(2)The court to which the application is made, or any court hearing an appeal in relation to the determination, may, subject to subsection (3), order the release of the person on bail until the application has been determined or the appeal has been heard (as the case requires).
(3)A court must not release a person on bail under subsection (2) unless there are special circumstances justifying such release.
As is apparent, s 49C is applicable only if the Attorney‑General has made a determination under s 15B(2) or s 22(2) that a person is to be surrendered to an extradition country in relation to one or more extradition offences and the person has applied to a court for judicial review of the determination.
The respondents disputed the characterisation of the present proceedings as judicial review proceedings but accepted that the Court does have power, pursuant to s 23 of the FCA Act, to grant the applicant bail. That concession was appropriately made – see Peniche v Vanstone [1999] FCA 1688, (1999) 96 FCR 38 at [29]; Adamas v The Hon Brendan O’Connor (No 3) [2012] FCA 365 at [13]‑[16].
The particular source of the Court’s power to order bail is of no consequence as it was common ground that, whether it derived from s 23 of the FCA Act or from s 49C of the Act, the principles to be applied are the same. Both parties referred to United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 in which the High Court (Gleeson CJ, McHugh and Gummow JJ) reviewed the principles bearing on the grant of bail in extradition proceedings as an incident of the power conferred by s 73 of the Constitution. Their Honours concluded that review by stating that bail in extradition cases should be granted only when two conditions are satisfied:
[61]Given this background and the rationale for the "special circumstances" condition, bail in extradition cases should be granted only when two conditions are fulfilled. First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges. This means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure. To constitute "special circumstances", the matters relied on "need to be extraordinary and not factors applicable to all defendants facing extradition." Second, there must be no real risk of flight. Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. When there is a real risk of flight, ordinarily bail should be refused. Further, the risk of flight should be considered independently of the effect of the proposed bail conditions. In this area of law, the history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than bail conditions – even rigorous conditions. A person, fearing punishment and inclined to flee, is unlikely to be diverted from that course by the prospect that his or her sureties may forfeit their securities or by stringent reporting conditions. Even if the defendant has to report twice daily to the police, he or she will have a period of 12-14 hours in which to leave Australia.
(Citation omitted)
The High Court went on to state that, even when those conditions are satisfied, the grant of bail remains discretionary:
[62]Even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted. For example, the defendant may pose a risk to the community or a particular individual. In addition, bail must become harder to obtain as the case proceeds through the judicial system. Once the Magistrate has found that the defendant is eligible for surrender, public interest factors similar to those that require a convicted defendant to be imprisoned also require that a defendant in extradition proceedings be kept in custody. Before a Federal Court judge grants bail, the defendant ordinarily will need to show that the application for review has strong prospects of success as well as special circumstances and an absence of risk of flight.
Later, at [72], the Court stated that it would be an error on a bail application in an extradition matter to take into account that there is “a predisposition against unnecessary or arbitrary detention in custody”. The Court continued:
… The Parliament has made it plain that bail is not to be granted unless special circumstances are proved. However unpalatable such a conclusion may be to the mind of the common lawyer, the Parliament believed that the fulfilment of Australia's treaty obligations makes the principles governing bail in domestic cases inapplicable in extradition cases. In extradition cases, the general rule is that defendants are to be held in custody whether or not their detention is necessary. Only when there is something special about a defendant's circumstances can the question of bail be considered. For that reason, it is erroneous to take into account "those circumstances which ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime". Those circumstances may be taken into account in considering the exercise of discretion after special circumstances have been established. But they can play no part in determining whether the applicant has established special circumstances.
Accordingly, it would be necessary for the applicant on his application for bail to satisfy the Court that:
(a)the underlying application in these proceedings has strong prospects of success;
(b)special circumstances exist; and
(c)there is no real risk of flight.
Even if the applicant established those matters, it would also be necessary for him to show that it would be an appropriate exercise of the Court’s discretion to grant bail.
Plainly, on my findings, the applicant cannot establish strong prospects of success in the underlying proceedings. I consider that they have no reasonable prospects of success. It is not necessary to consider whether the special circumstances for which his counsel contended do exist. I doubt that I would have been satisfied that there is no real risk of flight by the applicant.
One cannot help but have some sympathy for the applicant given that he has now been held in custody for over five years. That is likely to continue for some time yet, as counsel for the respondents informed the Court that the applicant would not be removed from Australia before the determination of his appeal against the judgment in Matson 2020. Even then, the circumstances of the COVID‑19 pandemic may make that removal impractical. However, as the applicant himself acknowledged, it is likely that his extradition would have been completed long ago had it not been for his unsuccessful challenges to its validity. With the possible exception of the period of approximately nine months which elapsed before the Surrender Decision and issue of the Surrender Warrant on 1 February 2019, it is the applicant who has brought the long period of detention on himself. That diminishes the weight which would otherwise be attached to it.
For these reasons, I would have refused the application for bail.
Conclusion
For the reasons given above, I make the following orders:
(1)The interlocutory application of the applicant sent to the Court on 6 January 2021 and filed on 11 January 2021 seeking to reopen the hearing is refused.
(2)The application of 19 February 2021 for leave to reopen the interlocutory application filed on 11 January 2021 is refused.
(3)Each of the interlocutory applications of the applicant filed on 25 and 29 September 2020 is refused.
(4)Pursuant to s 31A of the FCA Act, the originating application filed on 4 August 2020 is dismissed.
(5)Subject to the following orders, the applicant is to pay the costs of the first and second respondents of and incidental to the proceedings to be taxed in default of agreement.
(6)If either the applicant or the first and second respondents wish to contend for some different order as to costs, he or they are by 4 pm on 10 March 2021, to file and serve an outline of submissions setting out the different order for which they contend and the submissions in support of the making of that order, with those submissions not to exceed five pages.
(7)In the event that the applicant or the first and second respondents do file submissions in accordance with the preceding order, the other party is, by 4 pm on 17 March 2021, to file responsive submissions, not exceeding five pages.
(8)Subject to any further order, the Court will then determine the outstanding issues as to costs on the papers.
(9)The parties do not have leave to file and serve any documents other than those referred to in Orders 6 and 7.

I certify that the preceding two hundred and twenty-four (224) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.
Associate:
Dated: 3 March 2021
SCHEDULE OF PARTIES

QUD 254 of 2020

Respondents

Fourth Respondent:

THE ATTORNEY‑GENERAL OF THE UNITED STATES OF AMERICAN THE HONOURABLE WILLIAM P BARR

Fifth Respondent:

THE UNITED STATES OF AMERICA

File number:	QUD 254 of 2020
Judgment of:	WHITE J
Date of judgment:	3 March 2021
Catchwords:	EXTRADITION – application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) on an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of decisions made under ss 12, 16, 19, 22 and 23 of the Extradition Act 1988 (Cth) – application of principles of res judicata, Anshun estoppel and abuse of process – application granted. PRACTICE AND PROCEDURE – applications for the reopening of the hearing so that the Applicant could provide additional evidence and additional submissions – whether such applications are an abuse of process – interests of justice and finality of litigation – applications dismissed.
Legislation:	Constitution ss 51(xxix), 73, 116 Extradition Act 1998 (Cth) ss 7(c), 12, 15, 15A, 15B, 16, 18, 19, 21, 22, 23, 26, 49C Federal Court of Australia Act 1976 (Cth) ss 23, 31A, 37M, 37N Freedom of Information Act 1982 (Cth) Judiciary Act 1903 (Cth) s 39B Extradition (United State of America) Regulations 1988 (Cth) Federal Court Rules 2011 (Cth) rr 8.21, 9.05, 10.51, 26.01
Cases cited:	Adamas v The Hon Brendan O’Connor (No 3) [2012] FCA 365 Amcor Ltd v Barnes [2016] VSC 707 Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 Brown v Petranker (1991) 22 NSWLR 717 Brundsen v Humphrey (1884) 14 QBD 141 Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 Eliezer v University of Sydney [2015] FCA 1045; (2015) 239 FCR 381 Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Harrington Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338; (2004) 207 ALR 483 Harris v Attorney‑General (Cth) (1994) 52 FCR 386 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 Horta v The Commonwealth of Australia [1994] HCA 32; (1994) 181 CLR 183 Inspector‑General in Bankruptcy v Bradshaw [2006] FCA 22 Kimber v Owners of Strata Plan No 48216 [2017] FCAFC 226; (2017) 258 FCR 575 Kong v Minister for Immigration and Citizenship [2011] FCA 1345; (2011) 199 FCR 375 Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 Lazarus Estates Ltd v Beasley [1956] 1 QB 702 Love and Thoms (Love v Commonwealth of Australia [2020] HCA 3; (2020) 375 ALR 597 Marku v Minister for Justice [2015] FCA 831; (2015) 237 FCR 580 Matson v United State of America [2016] FCA 1245 Matson v United States of America [2018] FCAFC 57; (2018) 260 FCR 187 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 Peniche v Vanstone [1999] FCA 1688, (1999) 96 FCR 38 Polites v Commonwealth (1945) 70 CLR 60 Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 R v Smith (1987) 44 SASR 587 Rahardja v The Governor, Long Bay Gaol [2002] NSWSC 1253 Rivera v Minister for Justice and Customs [2007] FCAFC 123; (2007) 160 FCR 115 Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 Schumack v Commonwealth of Australia [2009] FCA 775 Sillery v The Queen [1981] HCA 34; (1981) 180 CLR 353 Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158; (2013) 308 ALR 266 Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508 Timbercorp Finance Pty Ltd (in liq) v Collins [2016] VSCA 128 Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 Tomlinson v Ramsey Food Processing Ltd [2015] HCA 28; (2015) 256 CLR 507 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614 Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468 Walton v Gardiner (1993) 177 CLR 378
Division:	General Division
Registry:	Queensland
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	224
Date of last submission/s:	4 February 2021
Date of hearing:	30 September 2020 and 4 February 2021
Counsel for the Applicant:	The Applicant appeared in person (30 September 2020 and 4 February 2021) Mr P Bubendorfer (Bail Application on 30 September 2020)
Solicitor for the Applicant:	Mr P Bubendorfer (Bail Application on 30 September 2020)
Counsel for the First and Second Respondents:	Mr G del Villar QC (30 September and 4 February 2021) with Mr M McKechnie (4 February 2021)
Solicitor for the First and Second Respondents:	Australian Government Solicitor
Counsel for the Third, Fourth and Fifth Respondents:	The Third, Fourth and Fifth Respondents did not appear

ORDER MADE BY:	WHITE J
DATE OF ORDER:	3 MARCH 2021

Introduction	[1]
The procedural and litigious background	[7]
The judgment in Matson 2016	[21]
The judgment in Matson Full Court	[26]
The present action	[35]
Summary judgment – relevant principles	[50]
Res judicata: principles	[54]
Anshun estoppel: principles	[58]
Abuse of process: principles	[66]
Rule 26.01 – matters of approach	[70]
The first and second respondents’ submissions	[71]
The applicant’s submissions	[80]
Consideration of the first and second respondents’ application	[92]
Proposed Order 6 – the validity of the previous extradition decisions	[93]
*Review of the s 16 decision*	[94]
*Review of the s 19 decision*	[97]
*Review of the s 12 decision*	[98]
*Review of the s 22 Decision and the issue of the surrender warrant*	[101]
*Proposed Order 6 in the 2PFAOA*	[114]
*Conclusion on Proposed Order 6*	[115]
Proposed Order 1 - the surrender of the applicant to the USA	[116]
*The COVID-19 pandemic*	[119]
*The applicant’s previous reliance on the pandemic*	[121]
*The applicant’s previous reliance on the ICCPR*	[126]
*ICCPR not part of the law of Australia*	[135]
*The asserted implied constitutional rights*	[136]
*The 2PFAOA*	[149]
*Conclusion on Proposed Order 1*	[150]
Proposed Order 2 - the claim for an injunction	[151]
Proposed Order 3 - habeas corpus	[154]
Proposed Order 4 - mandamus	[157]
Proposed Order 5 - the claim for exemplary damages	[158]
Proposed Order 7 - the validity of the Act and the Treaty	[164]
The applicant’s 6 January 2021 application to reopen	[176]
*The applicable principles*	[178]
*The basis for the application to reopen*	[182]
*The claims in 2PFAOA*	[183]
*Consideration of reopening with respect to the 2PFAOA*	[185]
*Reopening for psychological assessment*	[194]
*Conclusion on the application for reopening*	[198]
Other matters bearing on the abuse of process	[200]
A second application to reopen	[204]
Conclusion on the first and second respondents’ interlocutory application	[209]
The bail application	[210]
Conclusion	[224]

QUD 254 of 2020
Respondents
Fourth Respondent:	THE ATTORNEY‑GENERAL OF THE UNITED STATES OF AMERICAN THE HONOURABLE WILLIAM P BARR
Fifth Respondent:	THE UNITED STATES OF AMERICA