Tervonen v Finland

Case [2008] FCA 1539

FEDERAL COURT OF AUSTRALIA

Tervonen v Finland [2008] FCA 1539

APPEAL – leave to appeal against dismissal of application challenging an extradition request – whether applicant’s arguments necessarily determined in other proceedings – failure to put argument in earlier appeal proceedings – whether Anshun estoppel – whether an abuse of process to attempt to put argument again – leave to appeal granted.

EXTRADITION – whether applicant an extraditable person – whether applicant accused of relevant offences – whether argument available in the particular proceedings – whether Anshun estoppel.

Extradition Act 1988 (Cth) s 6, s 6(a)(i), s 12, s 16, s 19, s 22(3), s 22(4)
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules O 20 r 5, O 80
Judiciary Act 1903 (Cth) s 39B

Brock v Minister for Home Affairs [2008] FCAFC 165
Brock v Minister for Justice and Customs (2007) 243 ALR 315
Bucknell; Ex parte (1936) 56 CLR 221
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528
Harris v Attorney-General (Cth) (1994) 52 FCR 386
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372
Minister for Home Affairs v Tervonen (2008) 166 FCR 91
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
Vasiljkovic v Commonwealth (2006) 227 CLR 614
Yap v Granich and Associates [2001] FCA 1735

JAN TERVONEN v FINLAND, PAUL LYON and MINISTER FOR HOME AFFAIRS

NSD 1347 OF 2008

BUCHANAN J
16 OCTOBER 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1347 OF 2008

BETWEEN:

JAN TERVONEN
Applicant

AND:

FINLAND
First Respondent

PAUL LYON
Second Respondent

MINISTER FOR HOME AFFAIRS
Third Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

16 OCTOBER 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Leave is granted to appeal against the judgment of Flick J in Tervonen v Finland [2008] FCA 1133.

2.Costs of the application for leave to appeal are reserved.

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

NSD 1347 OF 2008

BETWEEN:

JAN TERVONEN
Applicant

AND:

FINLAND
First Respondent

PAUL LYON
Second Respondent

MINISTER FOR HOME AFFAIRS
Third Respondent

JUDGE:

BUCHANAN J

DATE:

16 OCTOBER 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

History

  1. This matter has a complex history.  Mr Tervonen is resisting extradition to Finland to face numerous allegations of fraud, forgery and related offences.  The extradition process, which is conventionally regarded as proceeding in four stages (see Harris v Attorney-General (Cth) (1994) 52 FCR 386 (‘Harris’) at 389; Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 (‘Kainhofer’) at 547; Vasiljkovic v Commonwealth (2006) 227 CLR 614 at [55] and Minister for Home Affairs v Tervonen (2008) 166 FCR 91 at [9]) commenced when the Australian government, on 27 July…

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AGLC
Tervonen v Finland [2008] FCA 1539
Case
[2008] FCA 1539
Decision Date

CaseChat Overview and Summary

In the case of Tervonen v Finland, the plaintiff, Mr Tervonen, contested an extradition order issued by Finland. The Federal Court of Australia, specifically Flick J, dismissed the application brought by Mr Tervonen, leading to an appeal to the High Court. The appeal sought to challenge the decision of Flick J, focusing on the interpretation of the terms "accused" and "offence" under the Extradition Act 1988 (Cth) and the Extradition Treaty between Australia and Finland. The central legal issue was whether Mr Tervonen was properly deemed "accused" of an offence, which is a prerequisite for extradition under the Act.

The Full Court's earlier ruling in Kainhofer provided a framework for interpreting the term "accused," emphasizing that a person must be formally charged or legal proceedings must be initiated before they can be considered "accused." However, the High Court, in a subsequent ruling, clarified that the specific issue under section 19 of the Act is whether a valid warrant has been issued, rather than whether the person is "accused" in the traditional sense. This distinction is crucial, as it narrows the scope of what constitutes a valid warrant for extradition purposes. Flick J's decision was based on these legal precedents and found that Mr Tervonen's argument lacked prospects of success, should have been raised in the previous appeal, and constituted an abuse of process.

Flick J also considered the procedural aspects of the case, dismissing Mr Tervonen's application under the Federal Court Rules and the Federal Court of Australia Act 1976 (Cth). The judge concluded that the application was frivolous or vexatious and had no reasonable prospects of success. This decision was made under O 20 r 5 of the Federal Court Rules, which allows for the summary dismissal of proceedings. However, the High Court noted that had Flick J dismissed the application under s 31A of the Federal Court of Australia Act 1976 (Cth), Mr Tervonen would have had the right to appeal. The High Court granted leave to appeal against Flick J's judgment, reserving the costs of the application for leave to appeal.

The orders issued by the High Court include granting leave to appeal against the judgment of Flick J and reserving the costs of the application for leave to appeal. This decision provides Mr Tervonen with an opportunity to challenge the dismissal of his application on the merits, ensuring a comprehensive review of the legal issues involved in the interpretation of the Extradition Act and the Extradition Treaty.

Orders

Orders of the court

1. Leave is granted to appeal against the judgment of Flick J in Tervonen v Finland [2008] FCA 1133.

2. Costs of the application for leave to appeal are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BUCHANAN J
Flick J decided that Mr Tervonen’s argument had no prospects of success for the reasons given by Gyles J, that it should have been raised in the appeal proceeding against the orders of Rares J and that it was an abuse of process to raise the matter now. Those matters require separate attention.The decision of Gyles J In Kainhofer (a case which concerned extradition sought by Austria, a civil law country like Finland) a Full Court of this Court upheld the same sort of argument that Mr Tervonen wishes to rely upon. The proceedings were concerned with the operation of s 19, rather than s 16 of the Act. The Full Court said (at 358-359):‘The Act clearly provides for the surrender of a person to a requesting State only if the person is accused, or has been convicted, of an extradition offence. We are of opinion that the Treaty is to the same effect.’…Neither the Act nor the Treaty, however, defines the circumstances in which a person is to be regarded as being “accused” of the offence or offences in respect of which surrender is sought. In the jurisprudence of this country, one would not normally speak of a person as a person who is “accused” of a criminal offence in the sense in which that expression is used in the Act unless legal proceedings for the imposition of a penalty in respect of the offence have been commenced by the laying before a magistrate or other appropriate official of an information or complaint alleging the commission of the offence or by the presentation to a court of an indictment alleging such commission or unless the person has been formally charged with the offence before an appropriate official following upon his arrest. That statement may not be exhaustive but, in any event, it would not be sufficient to establish that a person was “accused” of an offence to show only that a complaint had been made to the police alleging the commission of the offence or that the police, or other investigating body, were conducting inquiries to determine whether there was evidence of the commission of the offence sufficient to warrant the person being “accused” of the offence in the sense mentioned. That the warrant of arrest provides for the appellant to be taken into custody "on the strong suspicion" of having committed the specified offences clearly suggests that her presence in the Republic of Austria is required in furtherance of the investigations being conducted by the appropriate authorities in that country rather than to answer criminal charges of which she is presently "accused" in the sense to which we have referred.’(Emphasis added) However, in the High Court that approach was not regarded as sufficiently focussed upon the particular requirements of s 19 of the Act. The majority judgment held (185 CLR at 540):‘In the present case, the only issue for determination under s 19(2)(a) was whether the document produced was a duly authenticated warrant or copy warrant issued by the Republic of Austria for the arrest of the respondent for an extradition offence for which the surrender of the respondent was sought by the Republic of Austria. That issue did not require a finding as to whether the respondent was a person “accused”. It follows that the Federal Court was in error in considering whether the s 19 magistrate could properly have found that the respondent had been “accused” of any of the four offences in relation to which the magistrate held the respondent to be eligible for surrender. It is unnecessary to decide whether the Federal Court was itself in error in the meaning which it attributed to "accused" or in the effect which it attributed to the warrant for the arrest of the respondent issued by the Salzburg State Court in the Republic of Austria.’(Emphasis added)

Ratio Decidendi

Legal Principle Established

Established by: BUCHANAN J

As earlier noted Rares J, however, decided that each of the two notices under s 16 which were before him for examination was invalidly issued and he made orders quashing them. When those orders were appealed it would usually be, and was, the case that the appeal would be decided without disturbing the conclusion which Rares J had reached that it was open to Senator Ellison to conclude that Mr Tervonen was an extraditable person within the meaning of s 6(a)(i) of the Act unless Mr Tervonen put that conclusion in issue by filing a notice of contention in the appeal seeking to support the conclusion of invalidity of the notices upon this ground, if necessary. He did not do that. As Flick J pointed out in the judgment in respect of which leave to appeal is sought (at [16]):‘No argument as to the meaning of the words “accused” or “offence” occurred in the Full Court. No notice of contention was filed on behalf of Mr Tervonen seeking to raise any such argument before the Full Court.’Another consideration There is a further matter which is worth mentioning before I deal more directly with whether the tests in Décor have been made out. Flick J dismissed Mr Tervonen’s application in response to a notice of motion filed by the Minister which sought dismissal of the proceeding under O 20 r 5 of the Federal Court Rules on the basis it was frivolous or vexatious or an abuse of process or, alternatively, under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) on the basis it had no reasonable prospects of success. Flick J dismissed the application pursuant to O 20 r 5 although it was clear that his Honour also formed the view that it had no reasonable prospect of success. He could, as a result, have relied instead, or in addition, upon s 31A. It is well established that an order for summary dismissal of an application under a rule such as O 20 r 5 is an interlocutory order (see the cases discussed in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372 (‘Jefferson Ford’). That is why leave to appeal is required. However, on the majority view in Jefferson Ford Mr Tervonen would have been entitled, as of right, to appeal against an order dismissing his application under s 31A had that procedural foundation been selected instead of O 20 r 5. I need say nothing about whether a challenge to an order under s 31A would have enjoyed reasonable prospects of success but I would be reluctant to unduly curtail Mr Tervonen’s opportunity to challenge the decision, when in other circumstances he might have done so as of right, unless it is clear that there is a legal bar to any possibility of success. The first limb in Décor Flick J decided that Mr Tervonen’s argument had no prospects of success for the reasons given by Gyles J, that it should have been raised in the appeal proceeding against the orders of Rares J and that it was an abuse of process to raise the matter now. Those matters require separate attention.The decision of Gyles J