Re The Judges of the Federal Court of Australia & Anor; Ex parte Hicks

[1991] HCATrans 83

EO l.

HIGH COURT OF AUSTRALIA

In Chambers

MR JUSTICE TOOHEY

No P 3 of 1991

APPLICATION FOR WRIT OF CERTIORARI EX PARTE HICKS

TRANSCRIPT OF PROCEEDINGS

PERTH

Rarik 19.3.91

10.10 AM, TUESDAY, 19TH MARCH 1991

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BX21, D37. 10.10

TOOHEY J:  Mr Courtis?

MR COURTIS: If your Honour please, I appear for the applicant

Mr Hicks. There are two applications before you today, one

for a writ of prohibition and one for a writ of certiorari. They arise out of the same facts and, put simply, the factual

basis is that my client - -

TOOHEY J: I am sorry. Can I just clarify that with you? You

say there is an application for order nisi for writ of

prohibition and certiorari?

MR COURTIS: Yes, sir. Perhaps I can explain that? I had some difficulty with the form of the application and, after

several phone calls with Frank Jones of the principal

registry, he told me to do them both on the one affidavit, so

I followed his advice.

TOOHEY J:  Yes. I understand it in relation to the affidavit,

and what do I have? I have - -

MR COURTIS: There are two - - there is a draft order nisi for

prohibition and a draft order nisi for certiorari as exhibits

to the affidavit.

TOOHEY J:  We will go ahead on that basis.

MR COURTIS:  Yes. Thank you, sir. My client appeared in the

Court of Petty Sessions at Perth on the 17th of November 1989

on the hearing of extradition proceedings brought by New Zealand and at that hearing there was an order made that he be

extradited, so consequently he applied for a review by a single judge of the Federal Court under the procedure laid out

in the Extradition Act, and section 35 of that Act is the appropriate section. Mr Foster - - Mr Justice Foster, in July of 1990, handed down a reserved decision which dismissed the application for review and confirmed the order of the magistrate. Under section 35, that is precisely the order, or

the power that he had. Again, he either has power to confirm

the order of the magistrate, or to quash the order of the magistrate. Those are the only powers, and he exercised this

power in the way of confirming the order of the magistrate.

As a consequence, my client then appealed to the Full

Court of the Federal Court, again under section 3 5 of the

Extradition Act, and the Full Court, in handing down its

decision on the 24th of December 1990, allowed the appeal but

then made an order for a retrial. Now, this in fact is the

basis upon which the applicant seeks his prerogative writs.

ST

Rarik 19.3.91

Before I go on with that, sir, may I also explain why it

is not a matter for appeal? Under the same section - -

TOOHEY J:  I appreciate that the time limit has expired

for - - well, for an application for special leave to appeal.

MR COURTIS: Yes. Yes, that is right. So he is without any other remedy, so the only remedy that is open to him is to

apply for the prerogative writs.

Now, in that regard, perhaps ··the starting point ought to

be the Federal Court Act, section 28 of the Act, and I appreciate, sir, that was not mentioned in the papers. Section 28 of the Federal Court Act says: "Subject to any other Act the court may, in the exercise of its appellant jurisdiction ... ", and then it lists out all the powers of the Federal Court which we concede, for the purposes of this application, do include the power to order a retrial. So we

concede that, but the operative words, we would say, are

"Subject to any other Act." Those are the opening words of

that section of section 28, and it is our submission that
those words, in the context of these proceedings, are

referring to the Extradition Act.

So in other words, the general powers of the Federal

Court must be read down because they are subject to the

Extradition Act. Now, the Extradition Act itself, by section

3, declares itself to be a Code for the - - all purposes and

all law relating to extradition, and we then turn to section

35 of the Act, and it is a case of tracing it through. Under

subsection (2) of 35, that gives the powers of the court at first instance - that is, the single judge who hears the

review - and it says:

"He may, by order, confirm the order of the

magistrate or quash the order of the magistrate

and make consequential directions."

So when it comes to a review by a single judge, the Extradition Act is quite clear.

It is explicit and express as

to his powers, but then as we down the subsections of section

35, it speaks simply of "an appeal to the Full Federal Court"

and subsequently to "an application for special leave to the

High Court", but in fact there is nothing said anywhere in the

remainder of section 35 as to what actual powers, in this

case, the Full Federal Court has.

TOOHEY J:  You wouldn't expect there to be, would you?

MR COURTIS:  Well, in our respectful submission, what that

means is we have to then look back to	subsection (2) of the
same section, because that is the only	section which actually
speaks of the powers, or the orders,	that can be made in

relation to an extradition hearing.

ST

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TOOHEY J: One moment. Are you not blurring two notions?

One is the proceeding before the magistrate, which is subject

to review by a judge

MR COURTIS: Right.

TOOHEY J:  of either the Federal Court or a Supreme

Court - -

MR COURTIS: Correct.

TOOHEY J: - - with certain consequences that are spelled out in the statute, but a person or, indeed, for that matter, a country, dissatisfied with the judgment of a judge of the Federal Court or Supreme Court has a right of appeal to the Full Court of the Federal Court or a Supreme court, but once that right of appeal is exercised, why would you expect to find in the Extradition Act procedural provisions setting out

how that appeal is to be disposed of?

MR COURTIS: Because, sir - -

TOOHEY J:  I mean, why wouldn't you go to the Acts that in

fact create the particular court and define its powers?

MR COURTIS: Well that, with respect, is what we submit we are

doing because under section 28 of the Federal Court Act, which

we concede, it has the power, gives the power, generally, but it says, "Subject to any other Act", and the Extradition Act

declares itself to be a Code, so then, really, to answer your

Honour's question, may· I then refer you to the Criminal Code

of Western Australia which, under section 689 (2), which we

would submit is the comparative provision of law, says:

"Subject to the appeal provisions of this

chapter the Court of Criminal Appeal shall,

if they allow an appeal against conviction,

quash the conviction and either direct a

judgment and verdict of acquittal to be

entered or order a new trial."

In other words, there is express power in the Criminal

Code of Western Australia to do precisely that. You hear the

appeal. You allow the appeal and either enter a verdict of

acquittal or order a retrial. It is express. It is there.

the same provision is missing from the Extradition Act.

TOOHEY J: Well, in what sense is it missing?	I mean, leaving
aside the reference to "Subject to any other	Act", is there
anything missing?
ST
Rarik	19.3.91

MR COURTIS: Yes. The precise powers of the Full Federal

Court, because if I go back to subsection (2) it actually does
expressly state what the single judge can do - - the Extradition Act, sir, I am referring to. It does expressly state what his powers are. It says: "He may confirm the order of the magistrate, or quash the order of the

magistrate." So

TOOHEY J: Well, you would expect them to, would you not? I

mean, the structure of the Extradition Act is that there is a proceeding before a magistrate, a review proceeding before a single judge. Now, those procedures, which would not

otherwise be available, are spelled out in the Extradition Act itself. Once those steps have been taken, the right of appeal

is created either to the Full Court of the Federal Court or the Full court of a supreme Court, but is it not logical that at that point the Extradition Act, in a sense, stops and the

matter is then taken up by the relevant appeal statute?

MR COURTIS:  Well, with respect, our answer is that the Act,

by section 3, declares itself to be a Code.

TOOHEY J:  Yes, but a Code of what? I mean it is not a Code

of Procedure in the Full Court.

MR COURTIS: It says, under section 3A:

"To codify the law relating to the extradition

of persons, to provide for proceedings by which courts may determine whether a person is to be,

or is eligible to be, extradited without determining the guilt or innocence of the person of an offence."

And so on. In other words, and it says in its body, " ... to

provide for proceedings by which courts may determine ... ". We

respectfully submit that those words must mean that the

proceedings it provides for are the proceedings expressly

stated in the body of the Act, and again

TOOHEY J:	I will not quarrel with that proposition, but it is
the inference you seek to draw from it. You see, there is no

provision in the Extradition Act which gives you a right to

apply for special leave to the High Court. There is a

procedural provision which says you cannot do it after fifteen days, so you might say, "Well, how do you get before the High Court on an application for special leave?". The answer

surely is, "You go to the Judiciary Act."

ST

Rarik 19.3.91

MR COURTIS: But you are then left with the same proposition

that - - if this is a Code and the Criminal Code of Western

Australia is a Code, and if you are going to compare apples

with apples and not apples with oranges, or something else, then you have to ask "Why does the Criminal Code of Western

Australia go to the trouble of specifically say that where the

Court of Criminal Appeal allows an appeal, it may either enter

a verdict of acquittal or order a retrial. It specifically sets out the powers to do what the court needs to be able to

do. This Act does not.

TOOHEY J: Well, you need to state with some precision, or

identify with some precision, what the codification is. It is

not a codification of the law relating to appeals to the Full

Court or applications for special leave to appeal to the High

Court. It is a codification of the law relating to extradition.

MR COURTIS:  And that would, with respect, have to include the

process by which this is done in the courts.

TOOHEY J: Well, the process by which it is done according to

the terms of the statute, but what I am suggesting to you, Mr Courtis, is that the statute leaves off once the review

procedure has been exhausted. Perhaps "leaves off" is an

inaccuracy, because it creates a right of appeal to the Full Court, but having created that right of appeal it leaves off

in the sense that it allows the relevant statutes then to pick

up the procedure that_ is to follow, but according to your

argument, and you recognise this in the affidavit, if a matter

gets to the Full Court of the Supreme Court or the Federal

Court, there is no power even to allow or dismiss the appeal.

MR COURTIS: Well, we did say we must concede by necessary

implication that the moment the Act says "You can appeal", it

must by necessary implication also mean that the court has power to either allow the appeal or dismiss the appeal but

then, to go further than that, we say that, with respect, the

Act is defective or deficient. It is a matter for parliament,

in our respectful submission.

In any event, as I understand it, this is the first time

this point has been challenged, this particular point has been

brought up in relation to this provision of the Act, and I would submit, with very great respect, that perhaps it is a

matter that should go forward so that the law may be

clarified.

TOOHEY J:	Go forward?
ST
Rarik	19.3.91

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MR C.OlJl{Tl.S: To the Full court, upon orders nisi being

i::rcc:1nted, so that the Full Court may direct its mind to this

very point and declare the law. At the moment, with great

r·espect, t:her.e is no precedent, there is no authori.ty for the

proposition that I seek to advance, and I concede that, but I

wouJd suhmit, with very great :respect, that there is no

?JUtr1ority to the contrary. Perhc.ps that in itse::lf is a good

:n2<Jsoil why the matter should go forward on orders nisi to the

FuJl court.

Fundi':lme;mtally, sir, the proposition is that if it is a Code then the powers have to be expressly and specifically

:.::-catC~d and enumerated, in the same way as in the Criminal Code

of Western Australia. It is our submission that that has not

ha,ppP-ned. It may be that is a defect of the Act, but that is

a matter for the executive.

TI your Honour please, we maintain our application.

'l'OOHEY .-r:  Yes. Thank you, Mr Courtis. I propose to deal

w.i u-1 this matter now.

This is an a.pplication for an order that the first

1·~esponckmt., origin1;1lly identified as a judge of the Federal
court of Australia and now broadened to refer to the judges of

Lhc r'ecleral Court, and the second respondent, the Director of

Publ i..c Prosecutions, show cause why the record of the Federal

court r<?J.ating to extradition proceedings against the

c1pp LlccmL should not be removed into the High Court for the

pu:rposF.:! of quashing part of an order made by the Full court of

U-io Fecl.en-11 Court and a further o.pplication to show cause why t:herc~ should not be a permo.nent stay of the proceedings

against the applicant.

'T'he history of this matter may be stated briefly. The

~ppljcant, Mr Hicks, sought a review of a decision made	by a
lrwgj s tx,:-ite under section 34 of the Extradition Act 1988,	( "t:hr.:! A.c;t 11 ) that he be surrendered to New Zealand.	(Cth)

Mr Just.ice Foster, in the Federal court, dismissed an

app l..l..cc:1.t.ion for a review of the :magistrate's order and, in

i.l.Ccordanc:e with section 35 (2) of the Act, confirmed the order

al Yefjdy made.

Ttie o.pplicant appealed against the order ma.de by Mr

cTusticr2 Fo:;:;ter and, on the 24th of December 1990, the Full

Court. of tho Federal Court allowed the appeal, directed that

the order of Mr Justice Foster be set aside, and ordered that

thG rnaLtcr he reheard by a single judge.

Th~ cippJicant wishes to challenge the power of the Full court of the Federal Court to order a rehearing, though not surprj s..i.n~ .. JlY ho is content with the balance of the Full

Court.' s onler. Be sought to do so first in the Federal Court,

but was met with a refusal to accept any further documents on

the ba:-~i[-, t_hat. the Federol Court was functus officio.

S'f

JUDGMENT 19.3.91

Hy reason of section 35 (5) of the Act, any application for special J.<:;ave to appeal to tne High Court against the order of the Full Court had to be made within 15 days. That period haci exp.i.red before the o.PPlicant made any move in this Court, hence the Iorm of the applica.tions now before me.

ln summ;J.ry, the applicant's contention is that the Act is a code and that the only orders any court mcy make in relation to cxtr.udi L.i.on proceedings o.re those set out in L.he Act.

Alt.hough the Act contemplates an appeal to the Full Court, see

section 3 ':.> ( 1) , nowhere in the .Act is there to be found any

power in Ll:w Full court to order a rehearing.	The.z:·efore, it
is said, no power to order a. rehearing exists.

1 do noL accept the applicant's contention. It is true thut section 3 paragra.ph (a) of the Act expresses one of its principa.l objects to be, "to codify the la.w relating to the

ext..i::·adition of persons from Australia. to extra.dition countries

c1.n.d NP.w '.lcaland."

A.nci in Lhat sense it may be assumed that the Act is
exha.us t. i ve as to the proceedings by which a person may be

extraujted. But that is not to say that when the Act provides tor c1.n ,:1ppeal to the Full court of the Federal Court or a

Supreme CourL, it is exhaustive as to the procedures to be

fo I I.owed and Lhc orders that may be made when a matter is

c1.ppeo I.eel to one of those courts. In the same way, section

35 (5) prescribes a time limit within which an application for

special .I e,:we to appeal may be made to this Court, but says noth:i.ng as to the procedures to be followed, or the orders

t:hat miJ.y be rna.de by this Court. The reason is clear enough.

Once a maLt.:cr has been reviewed by a judge, pursuant to

secL.i.on 3:)(1) and (2) o! the Act, a right of appeal to a Full

Court exisLs by reason of section 35(3), but the powers

exerci sea.blc by such a court ore to be found in the sta.tute

which cstobllshes it and regulates its powers. Indeed, if

that were not so, it might well be said that a Full Court has

no power even to dismiss or a.llow an appeal, for no such

powers arc menLioned in the Act.

tn the case of the Federal Court, its powers on appeal

ore to he found in section ·2s of the Federal Court of

.Australia Act 1976, (Cth). The power to order a rehearing is

to be rounci in paragraph (f) of that section. Nothing j_n the

Act cteLract.s from that power; it would be surprising if it

did. And t.hat is so, notwithstanding that section 28 is

expressed to be subject to any other Act.

The conclus:i.on I hcve reached is inevitable. If it ·

r.equired further support it is enough to refer to the

particular provisions in section 35(6) of the Act dealing with the matcri.o.l thc:i.t may be be tore an appellant court, and c.::crtoin oti-1er. procedural matters. It can hardly be said that these prov.i.sions are in any sense comprehensive. They are

purtlc.;U] rJr matters for which parlirunent has legislated. They

say nothing about the general powers of the Full Court of the

Federal CourL or of a Supreme Court, which are to be found in

their own stat.utes.

S'l'

Rnrik JUDGMENT 19.3.91

Accordingly, the a.pplications will be dismissed. Mr

Courti~. i1 you need a copy of those reasons we can make them

avai 1.0ble to you, no doubt, by the end of the da.y.

Ml{ COURT IS:  Yes. I sho.11 be ·grateful, sir. Yes, I do

anticipate I will ha.ve those instructions.

TOOHEY J: Yes, very well. We will now adjourn sine die.

[-} 'l'

Rarlk. 9 JUDGMENT 19.3.91