Vasiljkovic v Commonwealth of Australia & Ors

[2006] HCATrans 72

[2006] HCATrans 072

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

PHILLIP RUDDOCK ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Defendant

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

Third Defendant

MAGISTRATE MOORE, CENTRAL LOCAL COURT, LIVERPOOL STREET, SYDNEY

Fourth Defendant

Summonses

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 23 FEBRUARY 2006, AT 9.33 AM

(Continued from 15/2/06)

Copyright in the High Court of Australia

__________________

MR T.E.F. HUGHES, QC:   May it please your Honour, I appear with my learned friend, MR K.P. SMARK, for the plaintiff.  (instructed by Albert A. Macri Partners)

MR H.C. BURMESTER, QC:   Your Honour, I appear for the first and second defendants.  I also have instructions to appear for the Minister for Justice and Customs who seeks to be substituted for the second defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes.  Well, perhaps we should deal with that first.  That Minister administers the Extradition Act, does he?

MR BURMESTER:   Yes, your Honour, he is the Minister who makes the actual decisions under the Act.  The Commonwealth is already a party, so there seems no need for the Attorney-General particularly to be a party.

HIS HONOUR:   Well, that seems appropriate then, Mr Hughes.

MR HUGHES:   Yes, your Honour, that is agreed.

HIS HONOUR:   Yes.  Well, there will be that substitution of the second defendant.  What is the Minister’s full departmental title?

MR BURMESTER:   The Minister for Justice and Customs.

HIS HONOUR:   Right.  I think he should just be identified as that Minister.  I do not think he should be identified by name.

MR BURMESTER:   That is correct, your Honour, I do not think it needs his name.

HIS HONOUR:   Yes, Mr Hughes.

MR HUGHES:   Your Honour, this matter was before your Honour on the 15th of this month and the directions your Honour gave on that occasion are recorded at page 21 of the transcript.  The plaintiff was required to file and serve an affidavit to comply with rule 25.09.  That has been done.  That is the affidavit that in habeas corpus proceedings has to be made by the plaintiff to say that he is the plaintiff and that he is in custody.

HIS HONOUR:   Yes.

MR HUGHES:   I doubt if I need read that affidavit.

HIS HONOUR:   No.  There is no objection to that, Mr Burmester?

MR BURMESTER:   No, your Honour.

MR HUGHES:   We have filed, pursuant to the leave your Honour granted, as recorded at page 21, a further amended application for an order to show cause.  That is an application for an order to show cause why a writ of habeas corpus should not issue; habeas corpus ad subjiciendum, I think it is.  Your Honour has that?

HIS HONOUR:   Yes, thank you.

MR HUGHES:   Then the other directions were that we filed a further amended summons.  That has been done.

HIS HONOUR:   Yes, I have that.

MR HUGHES:   And an outline of submissions.

HIS HONOUR:   Yes, thank you, Mr Hughes.

MR HUGHES:   At this stage, unless your Honour wishes me to, I will not embark upon a canvass of the submissions.

HIS HONOUR:   No.  There is a question I wanted to ask Mr Burmester arising from his submissions and then I might come back to you.

MR HUGHES:   Thank you, your Honour.

HIS HONOUR:   Thank you, Mr Hughes.  Have you seen the submissions filed yesterday by your opponent, Mr Burmester?

MR BURMESTER:   I have, your Honour, yes.

HIS HONOUR:   And, Mr Hughes, have you seen Mr Burmester’s?

MR HUGHES:   Yes, I have.  Could I just say this, your Honour?

HIS HONOUR:   Yes.

MR HUGHES:   I have just discussed briefly at the Bar table with my learned friend what might be the appropriate course if your Honour decides to refer questions to the Full Court.

HIS HONOUR:   I have had a discussion, I should say, with the Chief Justice and it would be possible to refer the matter into the Full Court to be heard not before noon on Thursday, 13 April, which is Maundy Thursday.

MR HUGHES:   Yes, your Honour.  The question is what procedural vehicle.  One possibility that occurs to us is – and I have discussed this with my learned friend – is a special case.  There are not many facts, but it may be convenient if the parties could agree on the form of a special case.

HIS HONOUR:   It would.  Is that going to be possible?

MR BURMESTER:   I would think so, your Honour.  I think the issues are now clarified and there do not seem to be a lot of facts.

HIS HONOUR:   Well, there is one issue I wanted to raise with Mr Burmester, which is there now does seem to be something of a treaty between the United Kingdom and the Kingdom of Serbia in 1900 or so, and by a chain of State succession descent we are the United Kingdom descendant and the Republic of Croatia is one of the descendents of the Kingdom of Serbia through the Kingdom and State of Yugoslavia.  Now, what is the significance of that?

MR BURMESTER:   Well, we say none, your Honour.  It is lurking in the background but no reliance is placed on it for the purpose of the actual Extradition Regulations under which this warrant and ‑ ‑ ‑

HIS HONOUR:   Suppose Mr Hughes succeeded on his point on the external affairs part of it, you have to have a treaty.  What do you do then?  Do you then rely on those?

MR BURMESTER:   Well, we would have to make new regulations under 11(1)(a) rather than 11(1)(b) of the Act.  The treaty would then have operative effect and that would constrain the way in which ‑ ‑ ‑

HIS HONOUR:   Yes, let me just have a look at 11(1)(a) and 11(1)(b).  I think you have quite a few of these old British treaties in your cupboard down there.

MR BURMESTER:   Far fewer these days, your Honour, but there are still some.

HIS HONOUR:   So if Mr Hughes was successful, you would have to ‑ ‑ ‑

MR BURMESTER:   We would have to make new regulations.

HIS HONOUR:   ‑ ‑ ‑ rely on 11(1)(a).

MR BURMESTER:   That is right.

HIS HONOUR:   Then there might be another case about the treaty, I suppose.

MR BURMESTER:   That is right, yes.

HIS HONOUR:   About State succession questions and so on, but I do not want to say any more about that.  Well, what is the best method of proceeding?  It would, I think, be a good idea if a case could be agreed.  What is the possibility of that in terms of practical logistics?

MR BURMESTER:   I would think it should not take too long.

HIS HONOUR:   Bearing in mind this provisional date of 13 April.

MR BURMESTER:   14 April – the 13th.

HIS HONOUR:   Yes, the 13th is the Thursday and Good Friday is the 14th.  I am in Canberra for the next two weeks.

MR BURMESTER:   Certainly before then.  Some time during that period we could present ‑ ‑ ‑

HIS HONOUR:   If it could be delivered to my Chambers, I might be able to do it without coming back into Court.

MR BURMESTER:   Yes.

MR HUGHES:   I think it is up to us, if this procedure is adopted, to propound a draft case for my learned friend’s consideration and, if it is agreed, for your Honour’s consideration.

HIS HONOUR:   Yes.  Well, if the draft is agreed between you – and I guess there will have to be some annexures, but you can think about that.

MR HUGHES:   Yes.

HIS HONOUR:   If the draft is agreed between you, the draft can be lodged at the Registry and I may be able to deal with it in Chambers without you coming back.

MR HUGHES:   Well, we will bend our efforts.  I think we will be successful to propound a draft very quickly.

HIS HONOUR:   Yes.  All I should order then this morning, subject to what counsel says, is the matter be stood over to be restored, if need be, to list before me on, what, three days’ notice, five days’ notice?

MR HUGHES:   Three days’ notice, yes.

HIS HONOUR:   All right.

MR HUGHES:   There is one matter to which I should allude very briefly.  According to Kainhofer’s Case, the first magistrate decides the issue extraditable person.  He has not been joined in the proceedings.  I have expressed to my learned friend this idea, that his joinder is really not necessary because, although he is not an officer of the Commonwealth, being a magistrate of the State of Western Australia, he is nevertheless in the context of this legislation, your Honour, a statutory agent of the Commonwealth for the purpose of deciding whether to issue the provisional warrant.  So the view that I have expressed to my learned friend for his consideration is that the case need not be encumbered by the joinder of the Western Australian magistrate because the Commonwealth is a party.

HIS HONOUR:   There is some discussion in Aston v Irvine 92 CLR 353, in the context of the old Service and Execution of Process Act, of this use by the Commonwealth legislation of State magistrates in what seems to be administrative functions, and that seemed to have been treated as satisfactory constitutionally in Aston v Irvine.  Is there any need for the magistrate to be a party, as you see it, Mr Burmester?

MR BURMESTER:    I did not think so.  Having had the matter raised with me, I thought ‑ ‑ ‑

HIS HONOUR:   Yes.  I think we should proceed on that basis, Mr Hughes.

MR HUGHES:   If your Honour pleases.  Well, then, would your Honour be good enough to reserve the costs of today?

HIS HONOUR:   Yes, I will.  So the matter is stood over to be restored before me by any party on three days’ written notice.  I reserve costs and, if it is practicable to do so, I will deal with the draft case in chambers.

MR HUGHES:    There is just one other matter to which I should make a brief reference.  We are conscious of what your Honour said at paragraphs 137 and following of your Honour’s judgment in Al‑Kateb and one of our arguments  ‑ ‑ ‑

HIS HONOUR:   That was a minority view, I think.

MR HUGHES:    I know, but, your Honour, dissenting judgments have a habit of living for a long time.  Look at Lord Atkin in Liversidge v Anderson.

HIS HONOUR:   Yes.

MR HUGHES:   The thought has occurred to us – it is rather an overnight thought and I should mention it so that I am not concealing my hand – but picking up the thrust of what your Honour has said in those paragraphs, one argument that we may wish to advance is not expressly within the issues as defined.  It is an argument that there must be some form of judicial process to justify the imprisonment of an Australian citizen unless the case falls within certain recognised exceptions, of which we say the present case is not one – some form of judicial process, even if not the full panoply of the exercise of judicial power.

HIS HONOUR:   Yes.  Well, on further reflection, that might require an amendment of the grounds, may it not, or is it a species of the genus that has already been ‑ ‑ ‑

MR HUGHES:   It is a species of the genus, we would suggest, but may I make this suggestion, that we will give attention to that point in the formulation of the draft special case.

HIS HONOUR:   Yes.  If that case is settled in Chambers, there would need then to be directions as to outlines of submissions, I would think, to tailor them to the timescale.

MR HUGHES:   Yes.  Well, we will propound some proposals for ‑ ‑ ‑

HIS HONOUR:   That was what I was going to suggest.  Could there be a proposal for that timetable with the draft case?

MR HUGHES:    Yes.

HIS HONOUR:   Well, I could deal with that in Chambers as well.

MR HUGHES:    Directions for written submissions?

HIS HONOUR:   Yes.  Is there anything else, gentlemen?

MR HUGHES:    No, your Honour.

HIS HONOUR:   Very well, I make those orders and I now adjourn.

AT 9.46 AM THE MATTER WAS ADJOURNED