The Director of Public Prosecutions v Wiest, E.A

[1990] FCA 502

IN THE FEDERAL COURT OF AUSTRALIA	1
NEW SOUTH WALES DISTRICT REGISTRY	1 G1034 of 1988
GENERAL DIVISION	1

BETWEEN: THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant l:<

EUGEN ALEXANDER WIEST	!
i .

First Respondent

RICHARD PETER MISZALSKI

Second Respondent

CORRIGENDA

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Amendment to the Reasons for Judgment of Pincus J. delivered on 14 Septembe~	!
1990:	I.

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Minutes of Order, para. 2, line 1, replace "respondent's" witt .	1:
"respondents'".
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Associate kb' ~incus J. L -

17  ~epternbgG 1990

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	) G1034 of 1988
GENERAL DIVISION	1

BETWEEN: THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

AND:  EUGEN AJJEXANDER WIEST

First Respondent

AND:  RICHARD PETER MISZALSKI

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	14 SEPTEMBER 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    The application be dismissed.

2.   The applicant pay the respondent's costs of and incidental to the application, to be taxed.

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	1 G1034 of 1988
GENERAL DIVISION	1

BETWEEN: THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

EUGEN ALEXANDER WIEST

First Respondent

m RICHARD PETER MISZALSKI

Second Respondent

CORAM:. PINCUS J.

PLACE: BRISBANE

m: 14 SEPTEMBER 1990

REASONS FOR JUDGMENT

This is an application to review conduct of the second respondent, Mr. Miszalski, whereby on 30 May 1988, in the Paddington Local Court, he required an undertaking to be given on behalf of the applicant to pay certain costs.

The application reads in part as follows:

"Application to review the conduct of the Second	Respondent engaged in for the purpose of making	a decision under the Extradition (Foreign
States) Act 1966, whereby on 30 May 1988 in the Paddington Local Court he required an undertaking ...
The applicant is aggrieved by the conduct because he will be obliged to pay the said
costs. "

Then there are set out grounds of the application, namely lack of power, failing to take into account a relevant consideration, and exercise of power in such a way that the result was uncertain.

The application goes on to claim relief pursuant to s.32 of the Federal Court of Australia Act 1976 in relation to proceedings No. G982 of 1988.

Although the application does not mention the Administrative Decisions (Judicial Review) Act 1977 ("Judicial Review Act"), its wording is such as to indicate reliance on that statute. The question arises as to whether the Judicial Review Act empowers this Court to hear the matter.

The decision which is impugned was made by the second respondent, Mr. Miszalski, when hearing as a magistrate an extradition application made under the Extradition fForeiqn states) Act 1966 ("the Extradition Act)". The application, which was successful, was for a warrant under S. 17 (6) of the Extradition Act. It should be added that the decision of the second respondent as to the issue of a warrant under the Extradition Act was itself challenged under that same Act.	The matter came before me and my judgment was taken to the	Full Court: Weist v. Director of Public Prosecutions (1989) 86
A.L.R. 464.
During the course of the hearing before the second respondent, counsel for the first respondent, Mr. Wiest, submitted that the proceedings before the second respondent should be stayed as an abuse of process. The basis of that application was that a previous application having the same purpose had been brought and failed.
After discussing the matter with counsel, the second respondent said, in effect, that he required an undertaking from the applicant (the Director of Public Prosecutions) to pay the costs of the first, unsuccessful, proceeding. The relevant part of the second respondent's reasons is as
follows :

"Now it seemed to me on a question of fairness to Mr. Wiest that because of the nature of the way the proceedings have unfolded . . . the Prosecution was put on notice that there was apparently a defect in it and the proceedings continued ... What is happening today is really a rerun of what should have occurred back in February and in those circumstances, just on the question of fairness, I think Mr. Wiest ought to be compensated as to the question of costs. It has been raised that perhaps there may not be any jurisdiction or power to award costs . . . it seems to me that in those circumstances Mr. Wiest ought to be paid his costs for the first proceedings before these proceedings or there ought to be an undertaking that the cost of those first proceedings be made to him before these proceedings go any

further. "

Counsel for the applicant then, having sought instructions, informed the magistrate that he had no instructions to proffer an undertaking to pay the costs of the

first proceedings, and after some further discussion, the matter was adjourned . On resumption, counsel for the applicant gave an undertaking "that in any event, the Director of Public Prosecutions will pay the costs of the first proceedings or the proceedings under the first requisition, I suppose is the way to describe it."

Counsel for the applicant then said, in effect, that the undertaking was conditional upon the second respondent's having jurisdiction to exact it

The application before me, in speaking of reviewing conduct "engaged in for the purpose of making" a decision, uses language based upon s.6 of the Judicial Review Act, which begins :

"Where a person has engaged, is engaging, or proposes to engage in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on any one or more of the following grounds.".

The question arises whether the Judicial Review Act can be applied to decisions made by magistrates under the

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Extradition Act.

The Extradition Act empowered this Court to review

the validity of magistrates' decisions under s.17. S.18(1)
provided :

"Where a person (in this section referred to as a 'fugitive') is committed to prison or otherwise ordered to be held in custody, or is granted bail, by a Magistrate pursuant to section 17, the fugitive may, within a period of 15 days after the date of the decision of the Magistrate, apply to the Federal Court, or to the Supreme Court of the State or Territory in which the Magistrate was sitting, for a review of the validity of the deciiiion of the Magistrate."

It was an application of the kind contemplated by S. 18(1) which came before me and went on appeal to the Full Court.

The question of the relationship between the power of review given the Judicial Review Act and that given by the Extradition Act has been considered. In Prevato. v. Governor, Metro~olitan Remand Centre (1986) 8 F.C.R. 358 at 364, Wilcox J. expressed himself in favour of the view that the Judicial Review Act could be used to review magistrates' decisions under the Extradition Act, despite the enactment of s.18 of the Extradition Act. But in the Full Court case referred to above and reported in 86 A.L.R. 464, a different view was taken. Burchett J. said:

"What is in issue is whether judicial review under the Judicial Review Act is available alongside the very particular method of review

Act. In my opinion, the better view is that	set out in ss.17A and 18 of the Extradition
ss. 17A and 18 have displaced the provisions of the Judicial Review Act in relation to the review of the decisions of a magistrate specified by those sections." (474)

Gummow J. in the Full Court agreed with what was said by Burchett J. on this point (488) and Sheppard J. agreed generally with the reasons of Gummow J. (465).

Section 17A, referred to by Burchett J., permitted review of an order by a magistrate that a person be released; there was no application under s.17A here for, of course, there was not an order for release.

The view expressed in the Full Court as to the relationship of ss. l7A and 18 of the Extradition Act with the Judicial Review Act is discussed in a critical way in Dr. Allars' book, Introduction to Australian Administrative Law (1990) at pp. 108-109. It appears to me, however, that the proper course is to follow the view expressed in the Full Court, whether or not that can, on analysis, be seen to be essential to the result arrived at. It seems to follow directly that s.6 of the Judicial Review Act cannot be a basis of jurisdiction, as is seen from the introductory words of the section quoted above. One cannot be aggrieved by conduct, so as to have a right to apply for review, unless the conduct is "for the purpose of making a decision to which this Act applies". The purpose of s.6, in its application to cases of this sort, is to enable challenges to be made, in certain	circumstances, with respect to conduct engaged in by the	decision-maker in the course of reaching the ultimate
decision. But where that decision is not one to which the Act applies, then s.6 cannot assist.
I would add that the High Court's decision in Australian Broadcastina Tribunal v. Bond (unreported, 26 July

1990) perhaps adds to the applicant's difficulties, with
respect to s.6 of the Judicial Review Act (see pp. 17, 18).

As mentioned above, the second basis of the claim for relief is s.32 of the Federal Court of Australia Act, the effect of which has been analysed in the High Court: Philip Morris Inc v.Adam P. Brown Male Fashions Ptv Ltd (1981) 148 C.L.R. 457, especially at 494. Section 32(1), which is the relevant provision, reads as follows:

"To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters on which the jurisdiction of the Court is

invoked. "

It appears to me that an example of the sort of case in which the provision can be applied is Philip Morris itself, where a claim of passing off under the general law was made in a suit which relied also on the Trade Practices Act 1974. Here, the applicant seeks, under s.32, a declaration and an injunction on the basis that the undertaking is void.

The general nature of the jurisdiction under s.32, whatever be its precise extent, is clearly indicated, I think, in a remark of Barwick C.J. in Philip Morris. His Honour held the sub-section to be invalid to the extent that it is incapable of being:

"confined to the express provision of that additional federal jurisdiction necessary for the resolution of the matter in relation to

which federal jurisdiction has been attracted".
(478)

The expression "the matter" has a broad meaning. Here the application refers to the proceedings in No. G982 of 1988. That was an application, which was not pursued, made by the first respondent under s.18 of the Extradition Act. It should be taken, I think, that in relying on s.32 of the Judiciary Act, the applicant intends to refer to the first respondent's proceedings brought under s.18 of the Extradition Act which were in fact pursued: namely, G1062 of 1988. The contention is that, this Court having been given jurisdiction by s.18 to review the ultimate decision of the second respondent (a New South Wales magistrate) under a Federal statute, s.32 adds jurisdiction to review interlocutory orders leading up to the ultimate decision.

Although no specific statement in Phili~ Morris can

be pointed to, tending one way or the other, I can find nothing in the reasons to support this submission. Section 32

applied to a case of the present kind would give this Court	jurisdiction to determine any other aspect of the controversy
an order should have been made against the first respondent with a view to his extradition. If the applicant is right, then s.32 also gives the Court power to determine the correctness of any interlocutory decision made by the magistrate in the course of arriving at his ultimate conclusion. I cannot accept that s.32 has that effect. Here, the ultimate decision could be reviewed (and in fact has been reviewed) without the necessity of considering the separate question of the undertaking as to costs. It may be conceded that, had consideration of the costs undertaking been necessary to enable this Court to determine the validity of the extradition order, then s.32 might apply. But to accept the applicant's submission here, one would have to go so far as to accept the wide proposition that a specific grant of power to the Court to review an ultimate decision carries with it (under s.32) power to review preliminary or interlocutory decisions along the way (for example, disposing of the costs of adjournment) whether or not they bore upon the ultimate decision.
One reason for rejecting that proposition is that a right to review interlocutory or preliminary decisions has generally been regarded as distinct from a right to review ultimate decisions: see for example Director-General of Social Services v. Chanev (1980) 31 A.L.R. 571. There, the rule was laid down that an appeal from the Administrative
was no suggestion that s.32 of the Federal Court of Australia Appeals Tribunal cannot attack interlocutory orders: there solved the problem.
Lastly, reliance was placed in the course of argument (although not in the application filed) upon the accrued jurisdiction of the Court. In my view, the considerations which have been mentioned in discussing the

raised under the s.18 proceedings, that being whether or not

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argument under s.32(1) of the Federal Court of Australia Act

are equally applicable to that head of jurisdiction.

The result is that the application is dismissed with

coats.

I certify that this and the nine preceding pages are a true copy of the reasons judgment herein of his Honour Mr. Justice Pincus.