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

The applicant, Mr Hicks, sought prerogative writs of prohibition and certiorari from Toohey J of the High Court of Australia. These applications arose from an extradition order made against him by the Court of Petty Sessions at Perth, which was subsequently confirmed by a single judge of the Federal Court of Australia under section 35 of the *Extradition Act 1988* (Cth). While the Full Court of the Federal Court allowed Mr Hicks' appeal against the single judge's decision, it ordered a retrial, a course of action Mr Hicks contended was beyond the Court's power. As the time for seeking special leave to appeal had expired, Mr Hicks argued that prerogative writs were his only available remedy.

The central legal issue before the High Court was whether the Full Court of the Federal Court had the power to order a retrial in extradition proceedings under the *Extradition Act 1988* (Cth). Mr Hicks submitted that the general appellate powers of the Federal Court, as outlined in section 28 of the *Federal Court Act 1976* (Cth), were limited by the specific provisions of the *Extradition Act 1988* (Cth), which he argued should be treated as a code. He contended that section 35 of the *Extradition Act 1988* (Cth) explicitly defined the powers of a single judge reviewing an extradition order, allowing only for confirmation or quashing of the magistrate's order. While the Act provided for an appeal to the Full Court, Mr Hicks argued that it did not expressly grant the Full Court the power to order a retrial, unlike comparable legislation such as the *Criminal Code of Western Australia*.

Toohey J considered the submission that the *Extradition Act 1988* (Cth) was a code and that its silence on the specific powers of the Full Court in relation to retrials meant such a power was not available. However, his Honour questioned whether the Act, in its appellate provisions, was intended to detail the procedural powers of the Federal Court, suggesting that such powers would typically be found in the legislation creating the court itself. The applicant's argument relied on the principle that general statutory powers are read down by specific provisions in other Acts, particularly when one Act declares itself to be a code. The applicant contrasted this with the *Criminal Code of Western Australia*, which expressly provided for the power to order a new trial upon allowing an appeal.