Michaels v New Zealand

Case •

[2011] FCAFC 101

•

9 August 2011

FEDERAL COURT OF AUSTRALIA

Michaels v New Zealand [2011] FCAFC 101

Citation: Michaels v New Zealand [2011] FCAFC 101
Appeal from: Supreme Court of Queensland (oral decision given on 6 June 2011)
Parties: LOIZOS MICHAELS v NEW ZEALAND
File number(s): QUD 134 of 2011
Judges: KEANE CJ, DOWSETT AND GREENWOOD JJ
Date of judgment: 9 August 2011
Catchwords: EXTRADITION – between Australia and New Zealand – New Zealand warrant – right of review and appeal – court surrender warrant – unjust, oppressive or too severe – proceedings before magistrate
Legislation: Extradition Act 1988 (Cth) ss 34, 35
Date of hearing: 9 August 2011
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 18
Counsel for the Appellant: The appellant appeared in person
Counsel for the Respondent: Mr D Campbell SC with Mr A George
Solicitor for the Respondent: Director of Public Prosecutions (Cth)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 134 of 2011
ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND
BETWEEN:

LOIZOS MICHAELS
Appellant
AND:

NEW ZEALAND
Respondent

JUDGES:

KEANE CJ, DOWSETT AND GREENWOOD JJ

DATE OF ORDER:

9 AUGUST 2011

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application for an adjournment be rejected.

2.The appeal be dismissed.

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


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 134 of 2011
ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND
BETWEEN:

LOIZOS MICHAELS
Appellant
AND:

NEW ZEALAND
Respondent

JUDGES:

KEANE CJ, DOWSETT AND GREENWOOD JJ

DATE:

9 AUGUST 2011

PLACE:

BRISBANE

REASONS FOR JUDGMENT

KEANE CJ:

INTRODUCTION

  1. This is an appeal from a decision of Byrne SJA of the Supreme Court of Queensland in respect of an application for review of an extradition order under s 35 of the Extradition Act 1988 (Cth) (the Extradition Act).

  2. I will first summarise the facts leading up to the hearing in this Court.  I will then discuss the grounds of appeal.

    BACKGROUND FACTS

  3. The appellant, Mr Loizos Michaels has been charged in New Zealand with 32 counts of causing loss by deception (under s 240(1)(d) of the Crimes Act 1961 (NZ)) and 108 counts of obtaining property by deception (under s 240(1)(a) of the Crimes Act 1961 (NZ)).

  4. The appellant was arrested and made his first appearance in the Auckland District Court on 8 February 2010.  He was released on bail on the condition that he surrender his passport.  The appellant recovered his passport and left New Zealand for Melbourne on 13 July 2010 after the New Zealand Court authorised an amendment to his bail conditions so that he could visit his sick mother.  These amendments required the appellant to return to New Zealand by 27 July 2010 and deliver up his passport to the authorities by the close of business on the following day.  He did not comply with these requirements. 

  5. On 6 December 2010, a warrant was issued by the authorities in New Zealand for the arrest of the appellant for failing to comply with his conditions of bail by returning to New Zealand by 27 July 2010 and by failing to surrender his passport to the Auckland District Court by 28 July 2010. The extradition of the appellant from Australia to New Zealand is sought pursuant to the terms of the Extradition Act.

  6. An order for the extradition of the appellant was made by a magistrate on 20 April 2011. The magistrate was not satisfied that it would be unjust, oppressive or too severe a punishment to surrender the appellant to New Zealand. The appellant was informed by the magistrate, in accordance with s 34(3) of the Extradition Act, that he might, within 15 days, seek a review of the order made under s 35 of the Extradition Act.

  7. The appellant filed an application for review in the Supreme Court of Queensland on 12 May 2011.  The application for review was made out of time. The review was sought on the basis that additional evidence would be forthcoming on behalf of the appellant, but no further evidence in support of the application was forthcoming.  At the hearing before Byrne SJA, the legal representative representing the appellant conceded that no further evidence had been forthcoming and that, based on the evidence which had been provided to the Court in support of the application, the application must fail.

  8. In dismissing the application, Byrne SJA said:

    This application must be dismissed.  It is out of time and there is no material before me which would suggest if there be a power to extend time that that discretion should be exercised to do so.  In any event, there is no reason to suppose that an extension of time would serve any useful purpose.  On the material before me the proceeding in this Court is doomed to failure.

    GROUNDS OF APPEAL

  9. The appeal is brought to the Full Court of the Federal Court pursuant to s 35(3) of the Extradition Act from the whole of the judgment of the Supreme Court of Queensland given on 6 June 2011. The appellant contends that:

    1.The learned primary judge erred in finding that it would not be unjust or oppressive to surrender the appellant to New Zealand; and,

    2.The learned primary judge erred in finding that the Supreme Court of Queensland did not have jurisdiction to hear the application.

  10. It will be immediately apparent that Byrne SJA did not make the finding attributed to him by the first ground of appeal. That was because his Honour took the view that the application for review was not properly before him. Whether he was correct about that depends on the second ground of appeal. A consideration of that ground requires some attention to the provisions of s 35 of the Extradition Act.

  11. Section 35 of the Extradition Act provides relevantly that:

    35       Review of magistrate’s order

    (1) Where a magistrate of a State or Territory makes an order under section 34 in relation to a person:

    (a) in the case of an order under paragraph 34(1)(c)—the person; or

    (b) in the case of an order under subsection 34(2)—New Zealand;

    may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court, or to the Supreme Court of the State or Territory, for a review of the order.

    (2)       The Court may, by order:

    (a)       confirm the order of the magistrate; or

    (b)       quash the order of the magistrate and direct a magistrate to:

    (i) in the case of an order under paragraph 34(1)(c)—order the release of the person; or

    (ii) in the case of an order under subsection 34(2)—order, by warrant, that the person be surrendered to New Zealand.

    …

  12. It is apparent from the text of s 35(1) of the Extradition Act that the right of review thereby created is exercisable for a period of 15 days after the day on which the magistrate makes his or her order.

  13. The right of review and the subsequent right of appeal to this Court are both creatures of statute. The rights so created must be exercised in accordance with the terms of the statute which created the rights. Because the 15 day period prescribed by s 35(1) expired before the application for review was made to Byrne SJA, his Honour was correct in concluding that he had no authority to entertain the application.

  14. But even if there were a discretion to extend the time prescribed by s 35(1) of the Extradition Act, there was no material before Byrne SJA which would have warranted the exercise of that discretion in the appellant’s favour.

  15. The appellant has sought an adjournment of the hearing so that he might engage counsel to present argument for him on an adjourned date.  I am not persuaded that there is any reason to believe that if an adjournment were granted, any argument likely to advance the appellant’s case could be presented to the Court.  In my view, the grant of an adjournment would be an exercise in futility. 

  16. Accordingly, I reject the application for an adjournment and order that the appeal to this Court be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Keane.

Associate:

Dated:        9 August 2011

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 134 of 2011
ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND
BETWEEN:

LOIZOS MICHAELS
Appellant
AND:

NEW ZEALAND
Respondent

JUDGES:

KEANE CJ, DOWSETT AND GREENWOOD JJ

DATE:

9 AUGUST 2011

PLACE:

BRISBANE

REASONS FOR JUDGMENT

DOWSETT J:

  1. I agree.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        9 August 2011

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 134 of 2011
ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND
BETWEEN:

LOIZOS MICHAELS
Appellant
AND:

NEW ZEALAND
Respondent

JUDGES:

KEANE CJ, DOWSETT AND GREENWOOD JJ

DATE:

9 AUGUST 2011

PLACE:

BRISBANE

REASONS FOR JUDGMENT

GREENWOOD J:

  1. I agree.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        9 August 2011

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