Bujak v Minister of Internal Affairs

[2009] NZCA 522

IN THE COURT OF APPEAL OF NEW ZEALAND

CA695/2009
[2009] NZCA 522

BETWEENSLAWOMIR RYSZARD BUJAK

Appellant

ANDTHE MINISTER OF INTERNAL AFFAIRS

First Respondent

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF INTERNAL AFFAIRS

Second Respondent

ANDTHE ATTORNEY-GENERAL

Third Respondent

ANDTHE MINISTER OF JUSTICE

Fourth Respondent

Counsel:F C Deliu for Appellant

V E Casey for Respondents

Judgment:6 November 2009 at 10.30 am

(on the papers)

JUDGMENT OF ARNOLD J

The application for a stay pending a hearing of the appeal is refused.

REASONS

[1]        On 5 November 2009 Mr Bujak filed an appeal against a decision of Dobson J refusing his application for interim orders under s 8 of the Judicature Amendment Act 1972: HC WN CIV-2009-4851884 3 November 2009.  The interim orders were sought in the context of judicial review proceedings challenging the way in which the Ministry of Internal Affairs dealt with Mr Bujak’s application for New Zealand citizenship and, if granted, would prevent the Minister of Justice from making a determination under s 30 of the Extradition Act 1999 (the Act) as to whether Mr Bujak should be surrendered for extradition to the Republic of Poland. 

[2]        Also on 5 November 2009 Mr Bujak made an urgent application for a stay, the effect of which will be to prevent the Minister from making a determination under s 30 until the appeal is heard.  The Minister is due to make a decision on 6 November 2009. 

[3]        In view of the urgency of the situation, I propose to deal with the application myself, on the papers. 

[4]        As I have said, the underlying judicial review proceedings relate to Mr Bujak’s application for New Zealand citizenship, which was about to be completed when the Ministry became aware of Mr Bujak’s alleged offending in Poland.  Although the events at issue occurred before and during 2003, the proceedings were not commenced until 17 September 2009.  The interim orders relate to extradition proceedings in which the Republic of Poland seeks to extradite Mr Bujak so that he can be tried on a number of fraud charges arising out of his business operations in Poland. 

[5] After Poland made a formal request for his extradition in March 2004, Mr Bujak was brought before the District Court at Christchurch under s 24 of the Act to determine his eligibility for surrender to Poland. On 10 April 2008, Judge Erber confirmed an earlier decision that authorised Mr Bujak’s extradition to Poland on six fraud charges: DC CHCH CRI-2005-009-1703. Mr Bujak then issued judicial review proceedings in respect of that order, failing in the High Court (HC CHCH CIV-2008-409785 8 October 2008), in this Court ([2009] NZCA 257) and before the Supreme Court, which rejected his application for leave to appeal on 15 September 2009 ([2009] NZSC 96). The present proceedings were issued two days later.

[6]        Under s 30(1) of the Act, once a court issues a warrant for the detention of a person, the Minister “must determine in accordance with the section whether the person is to be surrendered”.  If a person is not surrendered and conveyed out of New Zealand within two months of the date on which any appeal is finally determined, he or she may apply to a Judge of the High Court to be discharged: s 36(1)(b) of the Act.  

[7]        In the present case, the two months runs from 15 September 2009, which is the date on which the Supreme Court rejected Mr Bujak’s application for leave to appeal, and so expires on 16 November 2009.  If granted, the stay will prevent the Minister from proceeding under s 30, which will mean that the two month period provided for in s 36 will expire before the appeal is heard. 

[8]        I consider that Mr Bujak’s application for a stay should be rejected: 

(a)Although my understanding of Mr Bujak’s proceedings is based principally on the description given by Dobson J, the Judge’s assessment that Mr Bujak’s substantive case for review is weak seems to me to be compelling. 

(b)Relief in judicial review proceedings is discretionary.  The events which are the subject of the proceedings occurred before and during 2003, yet the proceedings challenging them were not issued until 17 September 2009, two days after the Supreme Court refused Mr Bujak’s leave application.  The delay has not been explained and is likely to be fatal to the granting of relief. 

(c) The granting of a stay is likely to confer an unwarranted collateral benefit on Mr Bujak.  This is because the two month period provided for in s 36 of the Act will expire before the appeal can be heard.  If that occurs, Mr Bujak is likely to seek a discharge under s 36(2).  I say this because Mr Bujak has to date utilised every possible legal avenue to prevent his extradition.  While, as Dobson J suggests, the possibility of a discharge may be more theoretical than real, it does create the opportunity for further litigation.

[9] There is one other point that should be mentioned. Dobson J records that Mr Bujak’s counsel, Mr Deliu, advised him that Mr Bujak would almost certainly give him instructions to challenge the Minister’s decision under s 30 by way of judicial review proceedings should it be adverse to Mr Bujak. The Judge concluded that the two month time limit would not apply in those circumstances, so that Mr Bujak would not be left without the possibility of a remedy if he refused the interim orders: at [46]. While I need not express a final view on that point, it does seem to me that the two month time limit may continue to apply even after the Minister has made his decision as s 36 applies where a person is “not surrendered and conveyed out of New Zealand” within the two month period. Accordingly, if that did not occur before 16 November 2009 for whatever reason, Mr Bujak could apply for a discharge.

[10]       In the result, I dismiss Mr Bujak’s application for a stay pending the hearing of the appeal.

Solicitors:

Crown Law Office for Respondents.