Timar v Minister for Justice and Customs - [2001] FCA 295

FEDERAL COURT OF AUSTRALIA
Timar v The Minister for Justice & Customs [2001] FCA 295
EXTRADITION – interlocutory relief - power of the Court to release from custody pending hearing – jurisdiction – preservation of the subject matter of litigation
WORDS & PHRASES – “the stream cannot rise higher than its source”
Judiciary Act 1903 (Cth) s 39B
Extradition Act 1988 (Cth) ss 12, 19, 22, 23
Federal Court of Australia Act 1976 (Cth) s 21 and s 23
Timar v Republic of Hungary [1999] FCA 1518 referred to
Timar v Republic of Hungary [1999] FCA 1559 referred to
Timar v Republic of Hungary [2000] FCA 755 referred to
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30, (1998) 195 CLR 1 applied
Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 distinguished
Betkhoshabeh v Minister for Immigration and Multicultural Affairs [1999] FCA 470, (1999) 92 FCR 504 distinguished
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 31, 153 ALR 641 cited
Tait v The Queen (1962) 108 CLR 620 applied
Tighe v Watson (1998) 86 IR 44 followed
Peniche v Vanstone [1999] FCA 1688, (1999) 96 FCR 38 considered
LASZLO PEREGRIN TIMAR v THE MINISTER FOR JUSTICE AND CUSTOMS
V 96 OF 2001
MARSHALL J
MELBOURNE
23 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 96 OF 2001

BETWEEN:

LASZLO PEREGRIN TIMAR
APPLICANT

AND:

THE MINISTER FOR JUSTICE AND CUSTOMS
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

23 MARCH 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The applicant’s Notice of Motion of 2 March 2001 be dismissed.
2.The applicant pay the respondent’s costs of and incidental to the Motion.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 96 OF 2001

BETWEEN:

LASZLO PEREGRIN TIMAR
APPLICANT

AND:

THE MINISTER FOR JUSTICE AND CUSTOMS
RESPONDENT

JUDGE:

MARSHALL J

DATE:

23 MARCH 2001

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 6 February 2001, the applicant, Professor Laszlo Peregrin Timar, made an application for orders pursuant to s39B of the Judiciary Act 1903 (Cth) and for declaratory relief in respect of the exercise by the respondent of her powers pursuant to s22 and s23 of the Extradition Act 1988 (Cth) (“the Act”).
Specifically, the following relief was claimed in the application:
“1.An order that the respondent validly exercise the discretion conferred on her by section 22(2) of the Extradition Act 1988 as to whether the applicant should be surrendered to the Republic of Hungary for extradition.
2.A declaration that the Warrant dated 11 January 2001 issued by the respondent purportedly under section 23 of the Extradition Act 1988 in relation to the applicant (hereinafter referred to as the Warrant) is a nullity in that the respondent failed to validly exercise her discretion as required by the provisions of…

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.

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Details

Case: [2001] FCA 295
Decision Date: 23 MARCH 2001

CaseChat Overview and Summary

The case of Timar v Minister for Justice and Customs was heard by the Federal Court of Australia, involving Professor Timar, who was in custody awaiting extradition to the Republic of Hungary. The central dispute in the case was whether the Court had the jurisdiction to release Professor Timar from custody pending the determination of the substantive proceeding concerning the legality of the warrant issued under the relevant extradition act. The legal issues that the Court needed to address included whether the Court had the power to grant an interim release order and whether such an order was necessary to ensure the effective exercise of the Court's jurisdiction. The Court considered the statutory provisions, particularly section 23 of the Federal Court of Australia Act, and the relevant precedents. It was argued that the Court's power to grant interlocutory relief was constrained by the nature of the final relief sought in the substantive proceeding.

The Court found that, while it had the authority to make interim orders necessary to ensure the effective exercise of its jurisdiction, the substantive proceeding did not involve a challenge to the decision not to release Professor Timar. Instead, the substantive proceeding focused on the legality of the warrant issued under the Act, and the final relief sought was to have the respondent validly exercise the discretion given to her under the Act. The Court concluded that it did not have the jurisdiction to order Professor Timar's release from custody on an interlocutory basis because the substantive proceeding did not seek his release as final relief. Therefore, the Court dismissed the applicant's Notice of Motion and ordered that the applicant pay the respondent's costs of and incidental to the Motion.

Orders

Orders of the court

1. The applicant’s Notice of Motion of 2 March 2001 be dismissed.

2. The applicant pay the respondent’s costs of and incidental to the Motion.

Background

Background to the litigation

The Motion was heard on 8 March 2001. Mr J Kaufman QC and Mr G Thomas of counsel appeared for Professor Timar. Mr G Livermore of counsel appeared for the respondent.Factual background On 22 December 1998, pursuant to s12(1) of the Act, a Magistrate signed a warrant for the arrest of Professor Timar. The warrant was executed on 12 January 1999. Shortly after, Professor Timar was granted bail subject to certain reporting conditions and an appropriate surety. On 22 April 1999, pursuant to s19 of the Act, another Magistrate ordered that Professor Timar was eligible for surrender to the Republic of Hungary. Professor Timar sought to review that order pursuant to s21 of the Act. The application for review was heard by Weinberg J. On 5 November 1999 his Honour found that Professor Timar was eligible for surrender; see Timar v Republic of Hungary [1999] FCA 1518. On 10 November 1999 a Full Court granted Professor Timar bail subject to certain conditions and suitable surety; see Timar v Republic of Hungary [1999] FCA 1559. On 7 June 2000 a Full Court dismissed an appeal from the judgment of Weinberg J; see Timar v Republic of Hungary [2000] FCA 755. Professor Timar was taken into custody on 7 June 2000 and has remained in custody thereafter. On 18 January 2001, Professor Timar’s solicitors received a communication that the respondent had made a determination, pursuant to s22 of the Act, that Professor Timar be surrendered to the Republic of Hungary and that a warrant had been issued pursuant to s23 of the Act.The Competing Contentions The central issue in the proceedings was whether the Court had the jurisdiction and/or power to release Professor Timar from custody pending the hearing and determination of the substantive proceeding. Mr Livermore submitted that the Court would only be able to make an interim order of a kind which it also had power to make as a final order. He cited a number of cases upholding the alleged maxim “the stream cannot rise higher than its source”; see for example Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 per Beaumont (with whom Black CJ agreed). Mr Livermore stressed that Professor Timar’s challenge in the substantive proceeding was to the legality of the warrant issued under s23 of the Act and the desired effect of that proceeding was to have the respondent validly exercise the discretion given to her under s22(2) of the Act. Consequently, Mr Livermore submitted, the Court did not have jurisdiction to order Professor Timar’s release because the substantive proceeding was not one whereby the final relief sought included Professor Timar’s release from custody. Mr Kaufman contended that the Court had the jurisdiction to determine the application for relief in the Motion and therefore had the power to order the release of Professor Timar from custody on an interlocutory basis. Mr Kaufman provided two grounds for this submission. Firstly, Mr Kaufman submitted that in effect Professor Timar’s challenge to the warrant was a challenge to the respondent’s decision not to order Professor Timar’s release. Subsequently, the Court had the jurisdiction to order Professor Timar’s release on an interlocutory basis because in effect the final relief sought included Professor Timar’s release from custody.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Secondly, it was submitted that the Court had the jurisdiction to preserve the subject matter of the substantive proceeding – the relevant subject matter in this proceeding being Professor Timar. Mr Kaufman submitted that there was a real risk that if Professor Timar was not released, his health would deteriorate to such an extent that he would be “a destroyed man”. An order effecting Professor Timar’s release was said to be one which would operate to preserve the subject matter of the litigation. Consideration Section 23 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) provides that:“The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.” After referring to s23 of the Federal Court Act in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 at [35], (1998) 195 CLR 1 at 33 (“Patrick Stevedores”), their Honours Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said that:“The general principle which informs the exercise of the power to grant interlocutory relief is that the Court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked. The Federal Court had jurisdiction to make interlocutory orders to prevent frustration of its process in the present proceeding.” (Emphasis added). In light of s23 of the Federal Court Act and the interpretation of this section in Patrick Stevedores’, it is clear that the Federal Court is empowered to make interim orders that are appropriate “to ensure the effective exercise of the jurisdiction invoked”. It is, therefore, important to identify the jurisdiction which has been invoked in the relevant proceeding. In the instant proceeding the applicant has invoked the jurisdiction of the Court under s39B of the Judiciary Act 1903 (Cth) and s21 of the Federal Court Act in respect of a purported exercise of power by the respondent. At the very least, these provisions provide the Court with the jurisdiction to decide the substantive proceeding. The Court is empowered to make interim orders which “ensure the effective exercise” of this jurisdiction. No valid quarrel can be raised concerning the power of the Court to make interim orders which fall squarely within the four corners of the final relief which is sought. Consequently, a court may order interlocutory relief, including release from custody, where final relief seeks the review of a decision to hold the applicant in custody; see Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 (“Msilanga”) and Betkhoshabeh v Minister for Immigration and Multicultural Affairs [1999] FCA 470, (1999) 92 FCR 504 at [77] and [78], per Weinberg J (“Betkhoshabeh”). However, the present case differs from Msilanga and Betkhoshabeh in that the substantive proceeding is not one in which there is a challenge to a decision not to order Professor Timar’s release. I disagree with the applicant’s submission that in effect Professor Timar’s challenge to the warrant was a challenge to the respondent’s decision not to order Professor Timar’s release. As noted above, the substantive proceeding concern the legality of the warrant issued under s23 of the Act and the final relief sought is to have the respondent validly exercise the discretion given to her under s22(2) of the Act.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 96 OF 2001

BETWEEN:	LASZLO PEREGRIN TIMAR APPLICANT
AND:	THE MINISTER FOR JUSTICE AND CUSTOMS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	23 MARCH 2001
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	23 MARCH 2001
PLACE:	MELBOURNE