Brock v Minister for Home Affairs [2008] FCAFC 165

FEDERAL COURT OF AUSTRALIA

Brock v Minister for Home Affairs [2008] FCAFC 165

EXTRADITION – abuse of process – in primary proceeding, applicant challenged decision of Minister to issue notice of receipt of extradition request in relation to applicant – primary judge dismissed that application summarily as an abuse of process on ground that applicant had previously failed up to appellate level in challenge to determination by Magistrate that applicant was eligible for surrender and to issue by magistrate of warrant for applicant's imprisonment – it was a condition of magistrate's jurisdiction that Minister had issued a notice of receipt of extradition request – discussion of criterion for summary dismissal and criterion for final dismissal in the case of abuse of process. PRACTICE AND PROCEDURE - abuse of process – in primary proceeding, applicant challenged decision of Minister to issue notice of receipt of extradition request in relation to applicant – primary judge dismissed that application summarily as an abuse of process on ground that applicant had previously failed up to appellate level in challenge to determination by Magistrate that applicant was eligible for surrender and to issue by magistrate of warrant for applicant's imprisonment – it was a condition of magistrate's jurisdiction that Minister had issued a notice of receipt of extradition request – discussion of criterion for summary dismissal and criterion for final dismissal in the case of abuse of process. Held: primary judge did not err in summary dismissal of application as an abuse of process. Extradition Act 1988 (Cth) ss 16(2). 19(1),(2), 21 Federal Court Rules (Cth) O 20 r 2 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 referred to Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 referred to Foster v Attorney-General (Cth) (1997) 97 A Crim R 560 referred to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 referred to Reichel v Magrath (1889) 14 App Cas 665 followed Rogers v The Queen (1994) 181 CLR 251 referred to Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 referred to Visy Industries Holdings Pty Ltd v Australian Competition & Consumer Commission (2007) 161 FCR 122 referred to Walton v Gardiner (1993) 177 CLR 378 referred to Williams v Minister for Justice and Customs (2007) 157 FCR 286 referred to GEORGE PAUL BROCK v MINISTER FOR HOME AFFAIRS