Rivera v Director of Public Prosecutions (No. 2)

[2003] FCA 1514

FEDERAL COURT OF AUSTRALIA

Rivera v Director of Public Prosecutions (No. 2) [2003] FCA 1514

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.I decline to make any order in the matter and the applicant’s ex parte application is dismissed.

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. Following my rejection of the applicant’s application to cross-vest a proceeding in the Supreme Court of New South Wales namely, an application for review, of an order of a Magistrate under s 19 of the Extradition Act 1988 (Cth), into this Court or, alternatively, to extend the time fixed by that Act under which a person sought to be extradited might seek a review in this Court of the Magistrate’s order, the applicant asks me to direct the Registrar of this Court to receive and permit him to file today an intended Notice of Appeal from my judgment which, handily, the applicant has brought with him. The intended Notice of Appeal lists as its sole ground:

   ‘The judgment was an error in point of law applying the principle of Jess v Scott and others ...  Copy of transcripts and judgment will be tendered at hearing.’

   And the only order sought is:

   ‘Seek “orders” to stay proceedings in the Supreme Court (File number:  13440/02) listed for November 28, 2003 pending the outcome of this Notice of Appeal.’

2. It may be that the applicant had anticipated before I gave my judgment that leave to appeal from it would be necessary or it may be that he simply is seeking my aid to enable the practicalities of his filing a Notice of Appeal to proceed.  He is of course incarcerated and he

   
   
   

   foresees difficulty in arranging the filing of a Notice of Appeal from prison before the matter is next listed before the Supreme Court on 28 November 2003, in a week from now.

3. A Judge of this Court has, on behalf of the Court, some supervisory powers in relation to the operations of its registries.  Under O 46 r 7 of the Federal Court Rules:

   ‘(1)Subject to these Rules and to any direction of the Court or a Judge, the Registrar of the Court may give a direction as to the operation of any Registry

   (2)A person may apply to the Court ex parte for a direction to the Registrar that he do any act which he is bound or entitled to do and has refused to do.’

4. No case for the Court’s intervention under sub rule (2) has yet arisen because, if there be any duty, no-one on behalf of the Registrar has refused to do it in relation to the applicant’s Notice of Appeal.

5. To the extent that I might have any power under O 46 r 7(1), which may possibly contemplate the ability of a Judge at large to give directions to the Registrar (but I very much doubt it, given the express provision in sub rule (2)), no case for me to intervene has been shown.  The experience of this Court is that people in detention, particularly migration detention, which not infrequently means such detention in prisons proper, appear to be capable of arranging to file process without undue difficulty.

6. Rule 7A of the same order operates against a would-be originator of proceedings, as well as against other persons who might wish to file documents in the Court or cause the issue of documents from the Court.  That rule empowers a Registrar who, among other things, considers the document presented to be abuse of the process of the Court to refuse to accept or issue it, or to seek the direction of a Judge.  A Judge may in turn direct the Registrar to refuse to accept or issue it, or to refuse to accept or issue it without the leave of a Judge first had and obtained.  Presumably, the last mentioned power is intended to keep control in the hands of Judges of the Court of intended proceedings which, even by later amended documents, might still be, among other things, so far as a Judge has been able to foresee, an abuse of the Court’s process.  In any case, no occasion for me to consider the matter under rule 7A has arisen. 

7. I decline therefore to make any order in the matter and the applicant’s ex parte application to me is dismissed.

I certify that the preceding seven (7) 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