New Zealand v Moloney

FEDERAL COURT OF AUSTRALIA

New Zealand v Moloney [2006] FCA 1363

EXTRADITION – application by respondents in Full Court appeal to stay orders made by the Full Court allowing their extradition to New Zealand – whether circumstances justify a departure from ordinary rule that the appellants entitled to benefit of the Full Court’s judgment – consideration of respondents’ previous conduct while on bail – consideration of period of time for which stay is sought – consideration of health of respondents – Held: circumstances do not justify stay of orders

Extradition Act 1988 (Cth) s 35(6)
Federal Court of Australia Act 1976 (Cth) s 25(2)(d)

Edelsten v Ward (No 2) (1988) 63 ALJR 346 cited
Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 cited
Heslehurst v Government of New Zealand [2000] FCA 937 applied
Rahme v Commonwealth Bank of Australia (1993) 117 ALR 618 cited

NEW ZEALAND v ROGER WILLIAM MOLONEY AND RAYMOND JOHN GARCHOW
NSD 867 OF 2006

BRANSON J
5 OCTOBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 867 OF 2006

BETWEEN:

NEW ZEALAND
Appellant

AND:

ROGER WILLIAM MOLONEY
First Respondent

RAYMOND JOHN GARCHOW
Second Respondent

JUDGE:	BRANSON J
DATE OF ORDER:	5 OCTOBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application to stay the orders of the Full Court in New Zealand v Moloney [2006] FCAFC 143 be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 867 OF 2006

BETWEEN:

NEW ZEALAND
Appellant

AND:

ROGER WILLIAM MOLONEY
First Respondent

RAYMOND JOHN GARCHOW
Second Respondent

JUDGE:	BRANSON J
DATE:	5 OCTOBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Judgment was delivered this morning in New Zealand v Moloney [2006] FCAFC 143. The Full Court, constituted by five judges, allowed an appeal by New Zealand from an order of the Court which set aside orders made by a magistrate that the respondents be surrendered to New Zealand. The Full Court confirmed the magistrate’s orders.

2. The respondents have applied for the orders of the Full Court to be stayed for 10 days to allow the respondents to remain at liberty pending the making of an application for special leave to appeal to the High Court.  A single judge may hear and determine an application to stay an order of the Full Court (s 25(2)(d) of the Federal Court of Australia Act 1976 (Cth)).

3. New Zealand, by its counsel, has confirmed that, in accordance with the requirements of the Extradition Act 1988 (Cth), the respondents will not be removed to New Zealand before any timely application which they may make for special leave to appeal to the High Court is heard and determined. I therefore consider it appropriate to approach the question of whether a stay of the orders of the Full Court should be granted on the basis that the discretion to order a stay should only be exercised if the circumstances justify a departure from the ordinary rule that a successful litigant…