Rivera v Director of Public Prosecutions

[2003] FCA 1470

FEDERAL COURT OF AUSTRALIA

Rivera v Director of Public Prosecutions [2003] FCA 1470

RIVERA v DIRECTOR OF PUBLIC PROSECUTIONS

N1833 of 2003

MADGWICK J
21 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1833 of 2003

BETWEEN:	LAWRENCE JOHN RIVERA APPLICANT
AND:	DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	21 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed with costs. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1833 of 2003

BETWEEN:	LAWRENCE JOHN RIVERA APPLICANT
AND:	DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

JUDGE:	MADGWICK J
DATE:	21 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an application in terms asking that the Court cross-vest from the Supreme Court of New South Wales to this Court a proceeding in the Supreme Court.  The proceeding in the Supreme Court is an application for review of an order made by New South Wales Local Court Magistrate O’Shane on 16 December 2002 that the applicant was eligible for surrender to the United States of America.  This followed receipt by the Australian Minister for Justice and Customs of an extradition request and consequent proceedings under the Extradition Act 1988 (Cth) (‘the Act’).

2. Her Worship also signed a warrant under s 19(9) of the Act in consequence of which the applicant, but for a successful review if he can achieve it, would be deported to face legal proceedings in respect of a charge of murder in the United States. Section 21(1) of the Act provides that where an order of the kind made by the learned Magistrate has been made, the person whose surrender is sought by the extradition country:

   ‘… 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 [relevant] State or Territory, for a review of the order.’

3. Under subs (2) the Court has power to confirm the Magistrate’s order or to quash it and to give any necessary consequent relief.  Pursuant to subs 3 an appeal may be lodged to the Full Court of this Court from the order upon review made by the Federal Court or the Supreme Court.

4. On 31 December 2002, the applicant commenced proceedings in the Supreme Court under subs 21 of the Act to review the order made by the learned Magistrate. That review has been fixed for hearing in the Supreme Court a week from today on 28 November 2003.

5. The applicant was represented pro bono by a solicitor when the Supreme Court proceedings were instituted. That solicitor has since declined further to represent the applicant. The applicant asserts without contradiction or question that, had he known of his ability to institute proceedings in the Federal Court and had he had any understanding such as he now believes he has of the role of the Federal Court in developing the law concerning the interpretation and application of the Act, he would have sought a review by this Court rather than by the Supreme Court. Hence, his application to attempt to cause his review to be heard in this Court.

6. Today, in oral submissions the applicant indicated that if there is no power in this Court to cross-vest the proceedings, then he asks the Court to extend the fifteen day period fixed by s 21(1) of the Act in order to enable him now to seek directly an order for a review by this Court of the learned Magistrate’s decision.

7. Either way the case is put, or in any other way that it might be put, as far as I can see, the Court has no power to do as the applicant wishes. 

8. The Court is not empowered under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) or otherwise to order the transfer of a Supreme Court proceeding into this Court. Under the terms of that Act and/or its State counterpart (subject to questions of constitutional law) it is the Supreme Court that would have power to cross-vest the proceeding into this Court.

9. The applicant claims that he was told by an officer of the Supreme Court that that Court did not have power to order the transfer of the matter into this Court and that he should make such an application in this Court.  If that is true, in my opinion it was mistaken advice and the fact that it was given, in any case, does not confer any power on the Court to assist the applicant if it were minded to do so. 

10. An application for review in this Court under s 21(1) of the Act of an order such as was made by the learned Magistrate, while in ordinary parlance it would be thought of as an ‘appeal’ from the Magistrate’s order, is not an appeal as such at all, but a proceeding in the original jurisdiction of the Court. In a proceeding under s 19 of the Act, the Magistrate is not sitting as a court within the meaning of that expression in s 19(2) of the Federal Court Act 1976 (Cth) which provides:

    ‘The original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.’

    It follows that the Magistrate was not sitting as a court and that the matter is in the original jurisdiction of the Court.  

11. There is no power in the Court to enlarge the time fixed by statute in which an applicant my invoke the original jurisdiction of this Court in relation to supervisory proceedings over another body. 

12. Nor as I have indicated can I think of any other way in which the Court would have power to intervene to assist the applicant if it were thought appropriate to do so. 

13. It will be clear that I have studiously avoided any comment on the merits or otherwise of the matter proceeding in this Court, rather than in the Supreme Court, because it may possibly be that the applicant would wish to make some such application to the Supreme Court and the Supreme Court might have to pass on that question.  I do not need to pass on it because it is clear that the Court has no power to act. 

14. The application to the Court will be dismissed with costs. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             12 December 2003

The Applicant appeared in person.
Counsel for the Respondent:	Ms McDonald
Solicitor for the Respondent:	Director of Public Prosecutions
Date of Hearing:	21 November 2003
Date of Judgment:	21 November 2003