FEDERAL COURT OF AUSTRALIA
Vasiljkovic v Honourable Brendan O’Connor [2010] FCA 1246
Citation: Vasiljkovic v Honourable Brendan O’Connor [2010] FCA 1246 Parties: DRAGAN VASILJKOVIC v THE HONOURABLE BRENDAN O'CONNOR, THE HONOURABLE ROBERT MCCLELLAND, THE REPUBLIC OF CROATIA, THE OFFICER IN CHARGE OF SILVERWATER PRISON and THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON File number: NSD 1203 of 2010 Judge: EDMONDS J Date of judgment: 19 November 2010 Catchwords: PRACTICE AND PROCEDURE—Summary judgment and summary dismissal—Section 31A of the Federal Court of Australia Act 1976 (Cth) and O 20 r 5 of the Federal Court Rules—where the applicant is seeking orders in the nature of a writ of habeas corpus—whether the applicant’s cause of action is res judicata—whether the applicant is estopped from raising issues which could have been raised in earlier proceedings—whether these proceedings are an abuse of process.
Held: The applicant’s cause of action is res judicata, as his cause of action has merged into the judgment in the applicant’s prior proceedings; the applicant is estopped from raising issues which were not raised, but should have been, in earlier proceedings; these proceedings are an abuse of process, inter alia, an order in the nature of a writ of habeas corpus would be inconsistent with the orders of the High Court of Australia in Republic of Croatia v Snedden [2010] HCA 14.
Legislation: Federal Court of Australia Act 1976 (Cth) s 31A
Extradition Act 1988 (Cth)
Judiciary Act 1903 (Cth) s 39B
Extradition (Croatia) Regulations 2004 (Cth)
Federal Court Rules O 20 r 5Cases cited: Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147
Brock v Minister for Home Affairs (2008) 170 FCR 434
Brock v Minister for Justice and Customs (2007) 243 ALR 315
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528
DPP v Humphrys [1977] AC 1
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088
Edwards v Santos Ltd (2009) 263 ALR 473
Ex parte Williams (1934) 51 CLR 545
Ex parte Woodhall (1888) 20 QBD 832
Forsyth v United Kingdom [2003] FCA 1084
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Harris v Attorney-General (Cth) (1994) 52 FCR 386
Henderson v Henderson (1843) 3 Hare 100
McGowan v Migration Agents Registration Authority (2003) 129 FCR 118
McHugh Holdings Pty Ltd v Director General Communities NSW [2009] NSWSC 1359
Oates v Attorney-General (Cth) (2001) 181 ALR 559
Pasini v United Mexican States (2002) 209 CLR 246
Peniche v Hannan [1999] FCA 915
Peniche v Vanstone (2000) 101 FCR 112
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
R v Governor of Brixton Prison Ex parte Mourat…
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Details
- Case
- [2010] FCA 1246
- Decision Date
CaseChat Overview and Summary
In the case of Vasiljkovic v Honourable Brendan O'Connor, the applicant, who was an Australian citizen, sought relief from the court on the grounds that his extradition to Croatia for alleged war crimes was unlawful. The applicant argued that the extradition process was flawed and that he was not properly charged with the crimes he was accused of. The court was tasked with determining whether the applicant had any reasonable prospect of successfully prosecuting his claims, which included seeking habeas corpus relief, a declaration that he was not an extraditable person, and orders for judicial review. The court also had to consider whether the proceeding constituted an abuse of process.
The primary legal issues the court had to decide were whether the applicant had any reasonable prospect of successfully prosecuting his claims and whether the proceeding was an abuse of process. The court examined the applicant's claims in light of the principle of res judicata, the nature of the statutory concept of "extraditable person," and the appropriate scope of judicial review in extradition cases. The court also considered whether the applicant's claims were properly before it and whether they disclosed a reasonable cause of action.
The court found that the applicant had no reasonable prospect of successfully prosecuting his claims due to the principle of res judicata and the nature of the statutory concept of "extraditable person." The court held that the applicant's claims were either precluded by previous decisions or did not disclose a reasonable cause of action. Additionally, the court determined that the proceeding was an abuse of process as it involved a collateral challenge to the extradition process, which was not the proper forum for such a challenge. The court dismissed the applicant's claims and found that the proceeding was an abuse of process.
The court's final orders were to dismiss the applicant's claims and declare the proceeding an abuse of process. The court also noted that the applicant's claims were precluded by previous decisions and did not disclose a reasonable cause of action. The court's decision reinforced the principle that extradition matters are subject to specific legal frameworks and that challenges to the extradition process must be pursued through the appropriate channels.
The primary legal issues the court had to decide were whether the applicant had any reasonable prospect of successfully prosecuting his claims and whether the proceeding was an abuse of process. The court examined the applicant's claims in light of the principle of res judicata, the nature of the statutory concept of "extraditable person," and the appropriate scope of judicial review in extradition cases. The court also considered whether the applicant's claims were properly before it and whether they disclosed a reasonable cause of action.
The court found that the applicant had no reasonable prospect of successfully prosecuting his claims due to the principle of res judicata and the nature of the statutory concept of "extraditable person." The court held that the applicant's claims were either precluded by previous decisions or did not disclose a reasonable cause of action. Additionally, the court determined that the proceeding was an abuse of process as it involved a collateral challenge to the extradition process, which was not the proper forum for such a challenge. The court dismissed the applicant's claims and found that the proceeding was an abuse of process.
The court's final orders were to dismiss the applicant's claims and declare the proceeding an abuse of process. The court also noted that the applicant's claims were precluded by previous decisions and did not disclose a reasonable cause of action. The court's decision reinforced the principle that extradition matters are subject to specific legal frameworks and that challenges to the extradition process must be pursued through the appropriate channels.
Orders
Orders of the court
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Background
Background to the litigation
Their Honours observed that, in this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. They then discussed the cases of Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and concluded at [56]:‘Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.’FACTUAL BACKGROUND The background facts are not in dispute although the summary that appears below, taken from the moving respondent’s written outline of submissions, was said by the applicant to be incomplete. The extent to which it was incomplete, was not particularised. The applicant was born in the former Yugoslavia in 1954 and migrated to Australia in 1969. The applicant subsequently became an Australian citizen, and has been an Australian citizen at all material times, including at the time of the alleged offences. In response to a request from the Republic of Croatia, the applicant was arrested in Sydney on 19 January 2006 pursuant to a provisional arrest warrant issued under s 12(1) of the Extradition Act 1988 (Cth) (‘the Act’). On 20 January 2006, the applicant was remanded in custody pursuant to s 15 of the Act. On 17 February 2006, Australia received an extradition request from the Republic of Croatia in relation to the applicant. That extradition was sought for the applicant’s prosecution before a court in Croatia in respect of:1.two offences of war crimes against prisoners of war pursuant to Art 122 of the Criminal Code 1998 (Croatia); and2.one offence of a war crime against the civilian population pursuant to Art 120, paras 1 and 2, of the Croatian Criminal Code.The request enclosed a copy of the Sibenik County Court decision and order. On 18 March 2006, the Minister for Justice and Customs issued a notice of receipt of the extradition request pursuant to s 16 of the Act. On 25 January 2006, the applicant commenced proceedings in the original jurisdiction of the High Court (C3 of 2006), seeking, inter alia, a writ in the nature of habeas corpus on the grounds of the invalidity of certain provisions of Pt II of the Act and the Extradition (Croatia) Regulations 2004 (Cth). On 15 June 2006, the matter was determined, in the form of a case stated, when the Full Court of the High Court answered in the negative each of three questions posing the invalidity of these instruments: see Vasiljkovic v Commonwealth (2006) 227 CLR 614.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Furthermore, even if regard is had to the applicant’s contention that a proper translation indicated that the court had ‘accused’ the applicant rather than ‘charged’ him, this would self-evidently meet a standard according to which the relevant decision-maker needs to be satisfied that the person had been ‘accused’.CONCLUSIONS The process of reasoning inherent in the analysis of the moving respondents’ submissions at [54] to [87] above and in the analysis of their answers to those aspects of the applicant’s case raised in the applicant’s submissions at [88] to [111] above, lead me to the following conclusions:(1)In respect of the primary relief sought in the application (declaratory relief that the applicant has been unlawfully imprisoned and is still unlawfully imprisoned (para (ii)) and the order in the nature of a writ of habeas corpus (para (iv)), which is also the primary relief sought in the ‘further amended application’ dated 11 October 2010 (paras (ii) and (iv)), the applicant has no reasonable prospects of prosecuting this part of the proceeding by reason of the principle of res judicata;(2)in respect of the relief sought in the application for a declaration that the applicant is not an ‘extraditable person’ (para (i)), which is also sought in the ‘further amended application’ dated 11 October 2010 (para (i)), this is, as reasoned in [64] – [66] and [95] above, a statutory concept which is not a jurisdictional fact for this Court to determine: Paniche v Vanstone at [61]. On that basis, the Court cannot grant the declaration;(3)in respect of the relief sought in the application for a declaration that the applicant is only required for questioning (and is not accused or charged with committing the extradition offences) (para (iii)), which is also sought in the ‘further amended application’ dated 11 October 2010 (para (iii)), the pleadings in the statement of claim (paras 4, 5 and 21) and in the ‘amended statement of claim’ dated 14 October 2010 (paras 4, 5, 5A, and 21) make it clear that such relief only goes to the question of whether the applicant is an ‘extraditable person’, a question on which this Court cannot grant the applicant relief. The relief sought, in conjunction with the relevant pleadings, does not disclose any reasonable cause of action.(4)in respect of the relief sought in the ‘further amended application’ dated 11 October 2010 for declarations that the offences in question were not at the time of their alleged commitment ‘offences of the Republic of Croatia’ (paras (ii)A, (iii)G – (iii)J) and that there is not warrant issued by the Republic of Croatia for the arrest of the applicant for an offence within the meaning of s 19(3)(a) of the Act (para (iii)K), the pleadings in the statement of claim (paras 18 – 20) and in the ‘amended statement of claim’ dated 14 October 2010 (paras 6, 18, 18A and 20) make it clear that such relief only goes to the question of whether the applicant is an ‘extraditable person’, a question on which this Court cannot grant the applicant relief. The relief sought, in conjunction with the relevant pleadings, does not disclose any reasonable cause of action;(5)in respect of the relief sought in the ‘further amended application’ dated 11 October 2010 for orders for judicial review (paras (iii)B and (iii)C), this would, as the moving respondents contended, have a tendency to cause embarrassment in the proceeding insofar as it is not appropriate to ask a court to order judicial review of an administrative decision. Such a review is undertaken at the instigation of a party to the proceeding.(6)In respect of the relief sought in the ‘further amended application’ dated 11 October 2010 for orders staying and/or setting aside the s 19 committal decision; the warrant issued pursuant to s 12; the decision to remand made pursuant to s 15; and the proceedings pursuant to the issue of the s 16 notice (paras (iii)D and (iii)E) are all part of the collateral challenge to the issue of the s 19 warrant and, for the reasons given at [90] – [92] above, the applicant has no reasonable prospect of prosecuting this part of the proceeding;(7)In respect of the relief sought in the ‘further amended application’ dated 11 October 2010 for an order restraining the first respondent from making a determination under s 22 of the Act that the applicant be extradited to the Republic of Croatia (para (iii)F), no prohibition can restrain the Minister entering upon an inquiry into any of the mattes or issues that he is to consider in the exercise of his discretion under s 22 of the Act; and(8)The proceeding is an abuses of process in each of the respects referred to in [75] above.
Ratio Decidendi
Legal Principle Established
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