Vasiljkovic v Commonwealth of Australia & Ors

[2006] HCATrans 652

[2006] HCATrans 652

IN THE HIGH COURT OF AUSTRALIA

Registry  No C3 of 2006

B e t w e e n -

DRAGAN VASILJKOVIC

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR JUSTICE AND CUSTOMS

Second Defendant

THE GOVERNOR, PARKLEA CORRECTIONAL CENTRE, SENTRY DRIVE PARKLEA, NEW SOUTH WALES

Third Defendant

MAGISTRATE MOORE, CENTRAL LOCAL COURT, LIVERPOOL STREET, SYDNEY

Fourth Defendant

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 NOVEMBER 2006, AT 10.06 AM

Copyright in the High Court of Australia

__________________

MR B.V. DENNIS:   May it please the Court, I appear for the plaintiff.  (instructed by Dennis & Company)

MR H.C. BURMESTER, QC:   Your Honour, I appear for the first and second defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   That is for the Commonwealth and ‑ ‑ ‑

MR BURMESTER:   The Commonwealth and the Minister for Justice and Customs.

HIS HONOUR:   Yes, I thought he was the fourth defendant.

MR BURMESTER:   The order I have of the High Court had him listed as the second defendant.

HIS HONOUR:   I think he has been moved around.

MR BURMESTER:   Anyway, for the Commonwealth and the Minister.

HIS HONOUR:   Yes, and there are submitting appearances from the governor of the correctional centre and the magistrate.  What do you propose for the further conduct of these proceedings, Mr Dennis?  Sorry, before I ask you that, are there any pending proceedings in the Federal Court anywhere in which ‑ ‑ ‑

MR DENNIS:   There are, your Honour.

HIS HONOUR:   What are those proceedings, do you know?

MR DENNIS:   Before his Honour Justice Cowdroy.

HIS HONOUR:   That is in the New South Wales Registry?

MR DENNIS:   Yes.  One of the propositions I was going to suggest to your Honour is that perhaps this entire case could be remitted to his Honour for further consideration.

HIS HONOUR:   Do you know the matter number of the Federal Court?  Just take a minute to find it.

MR DENNIS:   No NSD1312/2006.

HIS HONOUR:   Who are the parties?

MR DENNIS:   In that the parties are my client, Dragan Vasiljkovic, the Minister for Justice and Customs, Magistrate Moore, the Governor of the Parklea Correctional Centre and Magistrate Heilpern.

HIS HONOUR:   Yes, I see.  What is the relief sought there?

MR DENNIS:   Basically we are seeking in those proceedings to challenge the basis of the way in which the matter will proceed in the Local Court.  His Honour has decided that that is a matter that should be adjourned until after the Local Court proceedings have concluded.  Those proceedings are listed for 6 December with a mention date on the 29th of this month to see if the matter is ready to proceed.

One of the things which appears to come from your Honour’s last decision is that my client is precluded from bringing any evidence to contradict the allegations in the extradition request, so it is a bit of a circular argument that we have.  We, of course, cavil with that and say that under various international protections our client should be allowed to have a fair trial and bring evidence which would contradict allegations made.

HIS HONOUR:   Are you trying to re‑agitate some fresh ‑ ‑ ‑

MR DENNIS:   No, I am just letting your Honour know how we see that and so that whole ‑ ‑ ‑

HIS HONOUR:   But does that lead to some conclusion about invalidity of the extradition legislation?

MR DENNIS:   No, I was going to merely say that I have a different set of questions which would go to whether or not that particular regulation’s

applicability is there where one has allegations under what, in effect, are the Geneva Conventions ‑ ‑ ‑

HIS HONOUR:   You can agitate them already, can you not, in NSD1312?

MR DENNIS:   We can, that is right.

HIS HONOUR:   So is there anything left in the original grounds or the presently current grounds in this Court, anything left after the Full Court decision in this Court to take down to the Federal Court for decision?  I am not minded to change the proceedings in this Court to put anything else in them.

MR DENNIS:   No.

HIS HONOUR:   The question is whether there is anything now left to make it useful to do this.

MR DENNIS:   The only thing that I wanted to also agitate was in relation to the question of costs to say that my client is a protected person under the various Geneva Conventions and, therefore, should be accorded that protection and given moneys to defend himself.  That is something which I do not think has been agitated but comes under the purview of this Court’s discretion as to what to do with the legal costs of the existing proceedings.

HIS HONOUR:   So you seek, what, no order as to costs?

MR DENNIS:   I would be seeking an order that the Commonwealth indemnify my client in relation to his costs.

HIS HONOUR:   In relation to an unsuccessful matter that went to the Full Court of this Court you want your costs because of something you say flows from an international instrument; is that right?

MR DENNIS:   That is right.

HIS HONOUR:   Yes.  Yes, Mr Burmester.

MR BURMESTER:   Your Honour, it is our view that following the answers given by the Full Court to the questions stated, there is nothing remaining in the original amended application, the second amended application that is before the Court, and therefore the appropriate order now would be to dismiss the proceedings with costs.  The matters my friend has mentioned as possible additional or further issues, in our submission, could be raised as part of the Federal Court proceedings if that was judged appropriate ‑ ‑ ‑

HIS HONOUR:   Yes, provided that you do not take any Anshun estoppel point.

MR BURMESTER:   That is right, and, your Honour, there may be those sorts of issues but they would seem to be the same here if the matter stayed in this Court as in any subsequent set of proceedings.  If they are covered by the questions that have been answered or there is the broader issue about could they have been raised in these proceedings, then, in our submission, the same issue may well arise in any Federal Court proceeding, but leaving the matter to be dealt with through the Federal Court proceedings in our view would not prejudice the plaintiff any more than if they were raised here and we considered whether or not to object to them being agitated on the ground that they could have been agitated the first time round.

HIS HONOUR:   Yes, but there would not be an Anshun estoppel possibility, would there, if your opponent sought to add this new ground into what is still a live action?  Anshun estoppel does not work very well with prerogative writ applications, I know, but once you have reached a final order disposing of an action, I suppose, you can then in any subsequent litigious activity point to Anshun estoppel.

MR BURMESTER:   Yes, your Honour, I understand that.

HIS HONOUR:   Now, unless the Minister undertook not to raise an Anshun estoppel point in NSD1312/2006 in the Federal Court there would be a possibility of an Anshun point being successfully taken where the Anshun point would not be available if there was an expansion of the current matter in this Court, if you see what I mean.

MR BURMESTER:   Yes, your Honour, I see what you mean.  We would argue that to expand the matter in this Court would itself raise issues given that there was ‑ ‑ ‑

HIS HONOUR:   That will go to discretion to permit the amendment, but Anshun estoppel is a rule.

MR BURMESTER:   I understand that.

HIS HONOUR:   Now, unless I could be confident that the Minister would not be taking an Anshun point in the Federal Court, what I would do would be to remit so much of the matter in this Court that has not yet been decided.  There could then be an application to amend down in the Federal Court and to link it with 1312 and such merits as there were in the new point or points related to the Geneva Conventions could be agitated in the Federal Court.

MR BURMESTER:   Yes, your Honour.  I do not have instructions to give any undertaking so I cannot ‑ ‑ ‑

HIS HONOUR:   I thought you might not, no.  I do not want to shut any doors that cannot then be reopened.

MR BURMESTER:   No, I understand that.

HIS HONOUR:   But before the matter left this Court I would want to deal with costs though.  What would the submissions of the Commonwealth and the Minister be on costs in this Court?

MR BURMESTER:   Our submissions are that they should follow the answer to the questions that the Commonwealth was successful in that regard and the fact that the applicant alleges that he has some protected status under the Geneva Conventions in our view is not relevant to the determination of costs for the constitutional issue that has been agitated in this Court.

HIS HONOUR:   No, I should not have thought so.  Is there anything more you want to say on costs, Mr Dennis?

MR DENNIS:   Only my point in relation to the Geneva Convention.  It could well be, your Honour, that costs would follow the event in this Court but that there may be some other application I can make at a later date in relation to costs and indemnification against adverse costs.

HIS HONOUR:   If you make your Convention point good, that could be right, but at this stage ‑ ‑ ‑

MR DENNIS:   At this point I do not have the basis ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ when it has not even been agitated in the substantive issues, I would not allow it to control the costs.

MR DENNIS:   I understand that, your Honour.  Your Honour, there is just one further thing that came to mind.  The complaint my client has, having read the transcript, is that the Commonwealth said to your Honours that there was not an extradition treaty that the Commonwealth was relying upon.

HIS HONOUR:   Yes, that is right.

MR DENNIS:   It is our analysis that there is a relevant extradition treaty and that is the treaty which would see our client sent to an international

Court of Justice, and because of those issues and that point that we would wish to re‑agitate, I would ask that the adverse costs be reserved at this point to await the outcome of any possible re‑agitation of ‑ ‑ ‑

HIS HONOUR:   Yes, but if you keep having bright ideas, this will never get to an end.

MR DENNIS:   No, it will not, I know, your Honour.

HIS HONOUR:   I am afraid, I think, costs must take their course in this Court in response to the matters that were then urged, not in response to what could subsequently emerge.

MR DENNIS:   Yes, your Honour.

HIS HONOUR:   What is the relevant treaty?  This is not the early 20th century treaty with Serbia that was mentioned at one stage?

MR BURMESTER:   Your Honour, I think my friend is probably referring to the statute that sets up the International Criminal Tribunal for the former Yugoslavia.  I am not aware of particular provisions in there on which he might rely, but I imagine that is the treaty.  There has also been some reference to Geneva Conventions and there have been suggestions in some correspondence that the Commonwealth in some way misled the Court.  I should make it clear that as far as we are concerned there was no misleading of the Court.  There is no reliance placed on those treaties.  We do not think they are directly applicable or relevant, although my friend wishes to contend otherwise in future proceedings, but as far as I am concerned nothing changes the position as far as costs are concerned.

HIS HONOUR:   Yes.  Is Australia a party to the establishment of the former Yugoslavia tribunal?

MR BURMESTER:   Yes, your Honour.  I think in fact it is done through a Security Council resolution which ‑ ‑ ‑

HIS HONOUR:   That is what I thought.  I looked at ‑ ‑ ‑

MR BURMESTER:   I am sorry, there is the International Criminal Court, but I think for these particular offences or in this period it was through the Security Council resolution establishing the tribunal.

HIS HONOUR:   Yes, I looked at it at one stage and that is the impression I had too.  It came out of the Security Council.

MR BURMESTER:   That is right, your Honour is correct.

HIS HONOUR:   International lawyers have been commenting about that.

MR BURMESTER:   Yes.

HIS HONOUR:   Is that right?

MR DENNIS:   Yes, your Honour, that is what I was referring to.

HIS HONOUR:   Yes, thank you.

MR DENNIS:   Thank you, your Honour.

HIS HONOUR:   Is it still called the New South Wales District Registry in the Federal Court?  Is that how they are still organising themselves?

MR DENNIS:   I believe so, yes.

HIS HONOUR:   This is what I propose:

1.Order that the plaintiff pay the costs of the Commonwealth and the Minister for Justice and Customs of the proceedings to date in this Court, including the costs of the special case and of the remitter provided in order 2;

2.So much of the matter in this Court as remains after the disposition of the special case be remitted to the Federal Court of Australia New South Wales District Registry and further proceedings in that part of the matter be as directed by that court.

Does that meet the situation in the light of what I have indicated?

MR DENNIS:   Yes, your Honour.

HIS HONOUR:   I will read it again:

1.Order that the plaintiff pay the costs of the Commonwealth and the Minister for Justice and Customs of the proceedings to date in this Court, including the costs of the special case and of the remitter provided in order 2;

2.So much of the matter in this Court as remains after the disposition of the special case be remitted to the Federal Court of Australia New South Wales District Registry and further proceedings in that part of the matter be as directed by that court.

Is there anything else, gentlemen?

MR DENNIS:   No, your Honour.

MR BURMESTER:   No, your Honour.

HIS HONOUR:   Thank you.  I will now adjourn.

AT 10.28 AM THE MATTER WAS CONCLUDED