Matson v Attorney-General (No 2)

Case [2022] FCA 213

FEDERAL COURT OF AUSTRALIA

Matson v Attorney-General (No 2) [2022] FCA 213  

Appeal from: Matson v Attorney-General (Cth) [2021] FCA 161
File number: QUD 83 of 2021
Judgment of: COLLIER J
Date of judgment: 10 March 2022
Catchwords:

 PRACTICE AND PROCEDURE – application for summary judgment – whether the applicant’s proposed grounds of appeal have reasonable prospects of success for the purpose of s 31A of the Federal Court of Australia Act 1976 (Cth) – whereas the applicant seeks to reagitate grounds that have been pressed and decided in previous proceedings – whereas the majority of the applicant’s proposed grounds of appeal are subject to res judicata, Anshun estoppel or abuse of process respectively – no reasonable prospects of success on appeal exist – application for summary judgment granted

PRACTICE AND PROCEDURE – appeal from a grant of summary judgement by a single judge of this Court - whether leave to appeal is required – whether this proceeding constitutes an appeal from an interlocutory judgement affecting the liberty of an individual within the meaning s 24(1C) of the Federal Court of Australia Act 1976 (Cth) – question of leave need not be determined in light of the respondents’ application for summary judgment – determination of the summary judgment application by a single judge is permissible in the appellate jurisdiction of this Court per s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) – decision as to the requirement of leave unnecessary

Legislation:

Extradition Act 1988 (Cth)

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth)

International Covenant on Civil and Political Rights
Cases cited:

B v Minister for Immigration and Citizenship [2007] FCA 910

Ali v Chandler Macleod Agency [2017] HCASL 328

Ali v Chandler Macleod Group Ltd [2016] FCA 1234

Buckby v Ark Energy Ltd [2019] FCA 611

Conde v Hunter [2009] FCA 1016

Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397

du Boulay v Worrell [2009] QCA 63

Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442

Hastwell v Kott Gunning (No 5) [2020] FCA 621

Hastwell v Kott Gunning [2021] FCAFC 70

Jackson v Goldsmith (1950) 81 CLR 446

Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60

Krajniw v Newman (No 2) [2015] FCA 673

Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875

Lobban v Minister for Justice [2016] FCAFC 109

Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3

Matson v Attorney-General [2020] FCA 1558

Matson v Attorney-General of the Commonwealth of Australia [2021] FCA 161

Matthews v Minister for Home Affairs [2020] FCAFC 146

Mentyn v Westpac Banking Corporation [2004] FCAFC 149

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Pham v Secretary, Department of Employment & Workplace Relations [2007] FCAFC 179

Port of Melbourne Authority v Anshun Proprietary Ltd (1981) 147…

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AGLC
Matson v Attorney-General (No 2) [2022] FCA 213
Case
[2022] FCA 213
Decision Date

CaseChat Overview and Summary

The case of Matson v Attorney-General (No 2) involved an application for summary judgment brought by the respondents against Mr Matson, the applicant, concerning his proposed grounds of appeal in relation to extradition proceedings. The primary issue before the court was whether the applicant's proposed grounds of appeal had reasonable prospects of success. The court also considered whether the proceeding constituted an appeal from an interlocutory judgment affecting the liberty of an individual.

The court found that most of the applicant's proposed grounds of appeal were subject to res judicata, Anshun estoppel, or abuse of process. The court held that there were no reasonable prospects of success on appeal, and therefore granted the application for summary judgment. The court held that the determination of the summary judgment application by a single judge was permissible in the appellate jurisdiction of the court, pursuant to s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth). The court did not consider it necessary to determine the question of leave as the respondents' application for summary judgment had been granted.

The court's decision was based on the principle that the applicant for summary judgment bears the onus of persuading the court that the proceedings should be determined summarily. The court found that the applicant had not discharged this onus, as the proposed grounds of appeal had no reasonable prospects of success. The court also held that the assessment of whether a proceeding has no reasonable prospects of success requires the making of value judgments in the absence of a full and complete factual matrix and argument, and therefore vests a discretion in the court. The court exercised its discretion and found that the applicant's proposed grounds of appeal had no reasonable prospects of success.

In summary, the court granted the application for summary judgment and dismissed the applicant's proposed grounds of appeal. The court ordered that judgment be given in favour of the respondents in relation to the whole of the application for leave to appeal filed on 15 March 2021, and that the applicant pay the costs of the respondents.

Orders

Orders of the court

1. Pursuant to ss 25(2B)(aa) and 31A(2) of the Federal Court of Australia Act 1976 (Cth), judgment be given in favour of the First and Second Respondents in relation to the whole of the application for leave to appeal filed on 15 March 2021.

2. The applicant pay the costs of the respondents, such costs to be taxed if not otherwise agreed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In these circumstances the parties proceeded to make submissions in relation to the summary judgment application. Before turning to those submissions and the orders sought by the respondents, it is useful to examine the judgment that is the subject of Mr Matson’s application.PRIMARY JUDGMENT Clearly, there was an extensive and complex procedural history to the primary judgment (and ultimately the present proceedings). In summary: ·On 15 January 2016, pursuant to s 19 of the Extradition Act 1988 (Cth) (the Extradition Act), Magistrate Cosgrove determined that Mr Matson was eligible for surrender to the USA and ordered his committal to prison to await a determination under s 22 of the Extradition Act on whether he should be surrendered to the USA (the Section 19 Proceeding);·On 1 February 2016, pursuant to s 21 of the Extradition Act, Mr Matson filed an application for review of the Section 19 Proceeding (QUD89/2016). This application was dismissed by Rangiah J on 21 October 2016 (the Section 21 Proceeding);·On 26 July 2016, Mr Matson filed an application under s 39B of the Judiciary Act 1903 (Cth) seeking review of the decision to issue a notice under s 16 of the Extradition Act as well as the decision to issue an arrest warrant under s 12 of the Extradition Act. This proceeding (QUD569/2016) was subsequently referred to the Full Court for determination (the Sections 12 and 16 Proceeding);·On 2 November 2016, Mr Matson appealed to the Full Court of the Federal Court (QUD844/2016) from the Section 21 Proceeding. On 26 February 2017, the Sections 12 and 16 Proceeding was removed to the Full Court to be heard simultaneously with that appeal (collectively, the First Full Court Proceeding);·On 13 April 2018, the Full Federal Court dismissed the Section 12 and 16 Proceedings and the appeal from the Section 21 Proceeding. The effect of the Full Court decision was to confirm the lawfulness of the decisions made under ss 12, 16 and 19 of the Extradition Act with respect to Mr Matson’s extradition (the First Full Court Decision);·On 11 February 2019, Mr Matson filed an application seeking review of the Attorney-General’s decision to surrender Mr Matson to the USA under s 22(2) of the Extradition Act and to issue a warrant for Mr Matson’s surrender to the USA under s 23 of the Extradition Act (QUD107/2019) (the Sections 22 and 23 Proceeding). Those proceedings were dismissed on 28 October 2020 by Rangiah J (the 2020 Rangiah J Decision); and·On 5 November 2021, Mr Matson’s appeal against the decision of Rangiah J (QUD356/2020) was dismissed for failure on his part to comply with a self-executing order. In the primary judgment his Honour described the proceedings before the Court, concerning applications and other material filed in QUD254/2020, as follows: 1.This judgment concerns five interlocutory applications in proceedings arising from the proposed extradition of the applicant to the United State of America (the USA).2.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.3. 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).4.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.5.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).6.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”.

Ratio Decidendi

Legal Principle Established

Mr Matson did not file written submissions in relation to the summary judgment application. He did, however, make oral submissions, to the effect that:·As is clear from such authorities as Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60, if there is a real issue of fact to be decided or a real issue of law to be resolved, the matter should proceed to trial.·In the present proceedings there are two issues of law to be resolved, such as to warrant the matter proceeding to hearing. These issues are: ·whether Mr Matson actually requires leave to appeal, or whether leave is not required pursuant to s 24(1C) of the Federal Court Act (such that he is entitled to appeal as of right from the primary judgment); and·whether the Attorney-General of the Commonwealth has power under s 22 of the Extradition Act to reconsider, revoke and remake a surrender determination.CONSIDERATION In Quach v Commissioner of Taxation [2019] FCA 1729 Jackson J summarised principles referable to consideration of summary judgment applications pursuant to s 31A of the Federal Court Act as follows: 10.The relevant power to order summary judgment is found in s 31A(2) of the Federal Court of Australia Act 1976 (Cth). In order to enliven the power to award summary judgment under that provision, the court must be satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. It is also necessary to have regard to s 31A(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.11.The standard of no reasonable prospect of success is also found in r 26.01(1)(a) of the Federal Court Rules 2011 (Cth). The tests are identical, apart from s 31A(3): Zippo Manufacturing Co v Jaxlawn Pty Ltd [2011] FCA 1125 at [20] (Gordon J). Even though it has no equivalent in r 26.01, it seems to me that s 31A(3) clarifies, but does not alter, the ordinary meaning of the standard of no reasonable prospect of success, and I will proceed on the basis that the test under the Act and the test under the Rules are the same.12.The applicable principles are well established and may be summarised as follows:(1)It is the applicant for summary judgment who bears the onus of persuading the court that the proceedings should be determined summarily: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [45].(2)It may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [58]; see also at [22].(3)As the combined effect of s 31A(2) and 31A(3) makes clear, the inquiry is whether the prosecution of the relevant part of the proceeding has no reasonable prospect of success, not whether that defence is hopeless or bound to fail: Spencer at [52].(4)The test is a departure from earlier provisions authorising summary judgment to be ordered: Spencer at [53]. Section 31A has lowered the bar and softened the test: Cassimatis at [46].(5)Nevertheless, the power to dismiss an action summarily must be exercised with caution and is not to be exercised lightly: Spencer at [24] and [60].(6)Section 31A(1) provides that when the court is satisfied that the respondent to an application for summary judgment has no reasonable prospect of successfully prosecuting or defending the proceeding or that part of the proceeding, then the court ‘may’ give judgment. The assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [28].(7)A practical judgment as to the case at hand is required, by reference to the stage it has reached: Spencer at [25]; Cassimatis at [46].