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Tervonen v Finland

Tervonen v Finland

Case [2008] FCA 1133 6 August 2008

Jurisdiction

Judicial Review

Natural Justice & Procedural Fairness

Abuse of Process

Anshun Estoppel

Administrative Law

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FEDERAL COURT OF AUSTRALIA
Tervonen v Finland [2008] FCA 1133
EXTRADITION – attempt to review extradition request – whether a person is “accused” – “offence” – whether warrants were for pre-trial investigative purposes – no prospects of success – Anshun estoppel – abuse of process – declaratory relief in respect to validity of an extradition request
Administrative Decisions (Judicial Review) Act1977 (Cth)
Extradition Act1988 (Cth), ss 6, 16
Judiciary Act1903 (Cth), s 39B(1)
Federal Court Rules 1979 (Cth), O 20 r 5
Australian Education Union v Lawler [2008] FCAFC 135 followed
Brock v Minister for Justice and Customs [2007] FCA 2091, 243 ALR 315 considered
Coffey v Secretary, Department of Social Security [1999] FCA 375, 86 FCR 434 followed
Dutton v Republic of South Africa [1999] FCA 1016, 92 FCR 575 followed
Ling v Cth (1996) 68 FCR 180 considered
Minister for Home Affairs v Tervonen [2008] FCAFC 24, 166 FCR 91 cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 followed
R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 All ER 358, [1984] 1 All ER 956 cited
Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191, 164 FCR 116 considered
SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404 followed
Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 followed
Tervonen v Finland [2008] FCA 781 followed
Tervonen v Minister for Home Affairs [2008] FCA 872 cited
Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684, 98 ALD 589 cited
Walton v Gardiner [1992] HCA 12, 177 CLR 378 followed
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242, 146 FCR 10 followed
Campbell E, Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation (1994) 20 Mon Univ L Rev 21
Handley K R, Anshun Today (1997) 71 ALJ 934
JAN TERVONEN v FINLAND AND ORS
NSD 2524 OF 2007
FLICK J
6 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

NSD 2524 OF 2007

BETWEEN:

JAN TERVONEN
Applicant

AND:

FINLAND
First Respondent

PAUL LYON
Second Respondent

MINISTER FOR HOME AFFAIRS
Third Respondent

JUDGE:

FLICK J

DATE OF ORDER:

6 AUGUST 2008

WHERE MADE:

SYDNEY

THE ORDERS OF THE COURT ARE:
1.The Amended Application as filed on 14 April 2008 be dismissed.
2.The Applicant to pay the costs of the Third Respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

NSD 2524 OF 2007

BETWEEN:

JAN TERVONEN
Applicant

AND:

FINLAND
First Respondent

PAUL LYON
Second Respondent

MINISTER FOR HOME AFFAIRS
Third Respondent

JUDGE:

FLICK J

DATE:

6 AUGUST 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The present proceeding is framed as “An Application under s 39 B…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tervonen v Finland

Details

AGLC: Tervonen v Finland [2008] FCA 1133
Case: [2008] FCA 1133
Decision Date: 6 August 2008

CaseChat Overview and Summary

Jan Tervonen seeks to challenge the validity of an extradition request made by Finland on 27 July 2006. The application is framed as one pursuant to s 39B of the Judiciary Act 1903 (Cth). Mr Tervonen contends that the request does not comply with the Treaty concerning extradition between Australia and Finland and is therefore invalid as a request under the Extradition Act 1988 (Cth). This is an argument which has not previously been the subject of a discrete challenge or review. What has been the subject of challenge is the response of the Minister for Home Affairs upon receipt of that request. The first two notices have been the subject of a proceeding before a judge of this Court at first instance: Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684, 98 ALD 589. An appeal from that decision was allowed in part: Minister for Home Affairs v Tervonen [2008] FCAFC 24, 166 FCR 91. An application for special leave to appeal was filed with the Sydney Registry of the High Court of Australia on 19 March 2008.In addition to these proceedings, there was also a proceeding commenced by Mr Tervonen seeking to review the further notice issued in November 2007. That proceeding has since been resolved: Tervonen v Minister for Home Affairs [2008] FCA 872. On 21 April 2008 the Respondent Minister filed a Notice of Motion seeking the dismissal of the current proceeding. It is variously contended by the Respondent Minister that the proceeding should be dismissed by reason of res judicata or issue estoppel, or that the proceeding is “barred by reason of the doctrine [of] Anshun estoppel” or should be dismissed pursuant to O 20 r 5 of the Federal Court Rules. Abuse of process is also relied upon by the Minister.

The argument now being advanced by Mr Tervonen focuses upon the meaning to be given to the words “accused” or “offence”. He contends that the extradition request as made, and the supporting material provided, expose the fact that some of the warrants relied upon by Finland were warrants for his arrest for pre-trial investigation purposes rather than for trial for “offences”. This was an argument which, it would appear, held some favour with His Honour Justice Gyles in Tervonen v Finland [2008] FCA 781. His Honour there observed that it was tolerably clear that only the first three warrants would normally be regarded as being “for the arrest of the person for the offence”, the other warrants being connected with coercive investigation. But His Honour ultimately accepted that the argument was “effectively foreclosed to Tervonen by the decision of the High Court in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528”. There has been no reason advanced why any different conclusion would be reached if the present Amended Application were permitted to proceed to hearing. An application which seeks to advance an argument which has no prospects of success should normally be dismissed pursuant to O 20 r 5 of the Federal Court Rules.

The Respondent Minister further contends, in the alternative, that the present argument has in any event been advanced by Mr Tervonen and also resolved against him by the decision at first instance in Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684, 98 ALD 589. In issue in that proceeding were the first two of the notices issued pursuant to s 16 of the 1988 Act. In the course of his reasoning His Honour there observed that it was open to the Minister to form the opinion that each of the warrants was one which met the description in s 6(a)(i). The appeal to the Full Court was allowed in part: Minister for Home Affairs v Tervonen [2008] FCAFC 24, 166 FCR 91. 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. The contention of the Minister is simply that the very argument now sought to be raised was either in fact raised and resolved against Mr Tervonen at first instance (notwithstanding the appeal being successful in part) or, if not raised, ought reasonably to have been raised. Moreover, and in the absence of a notice of contention having been filed with the Full Court, the Minister now submits that it is too late for the argument to be raised in this proceeding.

Irrespective of the conclusion already reached as to the prospects of success of the argument now sought to be pursued, it is further considered that orders should be made in accordance with the Motion as filed by the Respondent Minister by reason of an Anshun estoppel. To now permit Mr Tervonen to pursue his present arguments would certainly not promote finality in litigation and would now permit him to raise an argument which either has been raised and resolved or an argument which should have been raised before the trial judge in Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684, 98 ALD 589 and on appeal, if necessary, by way of a notice of contention. It is considered that the argument now sought to be advanced by Mr Tervonen was, at the very least, “so relevant to the subject matter” of the proceeding being pursued before the trial judge in Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684, 98 ALD 589 that it was “unreasonable” for him not to have relied upon it in that proceeding. Not only were the terms of s 6(a)(i) the very subject matter of consideration by His Honour, the terms of the Treaty were also the subject matter of consideration. His Honour thus summarised one of the arguments being advanced before him for resolution as follows: “Mr Tervonen has challenged the validity of each s 16 notice. He argued that Senator Ellison’s s 16 notice was invalid because…(3)Article 7(2) of the Treaty Between Australia and Finland Concerning Extradition done at Helsinki on 7 June 1984 as amended by Art 3 of the Protocol Between Australia and Finland Amending the Treaty Concerning Extradition done at Helsinki on 10 September 1985 contained in Sch 2 to the Extradition (Finland) Regulations 1988 (Cth) required Finland to accompany its request for his extradition with a statement of each offence for which extradition was sought together with a statement of the acts or omissions which were alleged against Mr Tervonen in respect of each offence. Mr Tervonen

Orders