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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Matson v Attorney-General (Cth) [2021] FCA 161
Case
[2021] FCA 161
Decision Date
CaseChat Overview and Summary
Matson v Attorney-General (Cth) involves the applicant, Mr Matson, who is subject to an extradition request by the United States of America. The primary focus of the case is on the application for summary judgment under section 31A of the Federal Court of Australia Act 1976 (Cth) on an application for judicial review under section 39B of the Judiciary Act 1903 (Cth) of decisions made under sections 12, 16, 19, 22 and 23 of the Extradition Act 1988 (Cth). The legal issues addressed include the application of principles of res judicata, Anshun estoppel, and abuse of process. Additionally, the case considers the applicant's requests for reopening the hearing to provide additional evidence and submissions, and whether such requests constitute an abuse of process. The court dismissed these requests, emphasising the importance of the finality of litigation and the interests of justice.
In dismissing the application for summary judgment, the court considered the principles of res judicata and Anshun estoppel. The court found that the applicant had already litigated the issues in previous proceedings, and that there was no compelling reason to permit the relitigation of these issues. The court reasoned that the applicant had ample opportunity to present his arguments in the earlier proceedings, and that reopening the hearing would undermine the finality of litigation and the interests of justice. Furthermore, the court found no evidence of abuse of process by the respondents. The court emphasised that the principles of res judicata and Anshun estoppel serve to prevent the relitigation of issues that have already been decided, and that the applicant's requests to reopen the hearing were an abuse of the court process.
The final orders of the court include the dismissal of the interlocutory applications filed on 25 and 29 September 2020, and the application of 19 February 2021. The court also dismissed the originating application filed on 4 August 2020, pursuant to section 31A of the FCA Act. The applicant was ordered to pay the costs of the first and second respondents, with specific instructions for the parties to file and serve submissions regarding the costs if they wished to contend for a different order. The court further restricted the parties from filing and serving any documents other than those referred to in the orders.
Orders
Orders of the court
(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.
Background
Background to the litigation
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”.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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”.