FEDERAL COURT OF AUSTRALIA EXTRADITION - determination of eligibility for surrender - whether supporting documents properly served - initial supporting documents unsigned and unauthenticated - complying supporting documents subsequently served - application that magistrate's hearing should be declared invalid or permanently stayed or declared to be an abuse of process - whether application should be dismissed - whether application discloses any reasonable cause of action - whether application an abuse of process. Extradition Act 1988 (Cth), ss 16(3), 19(1), 19(2)(a), 19(3) Federal Court Rules, O 20, r 2(a) Grassby v R (1989) 168 CLR 1, followed Papazoglou v Republic of Philippines (1997) 144 ALR 42, followed Parker v Federal Republic of Germany (Heerey J, Federal Court of Australia, 10 July 1997, unreported), followed STEPHEN GERARD McDADE AND LOUISE McDADE v ATTORNEY-GENERAL OF THE COMMONWEALTH WAG 125 of 1997 R D NICHOLSON J PERTH 1 MAY 1998 GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA Western Australia DISTRICT REGISTRY wag 125 of 1997 BETWEEN: stephen gerard McDADE and louise McDADE Applicants AND: ATTORNEY-GENERAL OF THE COMMONWEALTH Respondent JUDGE: R D NICHOLSON J DATE OF ORDER: 1 MAY 1998 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The respondent's motion for dismissal be allowed. 2. The application be dismissed. 3. The applicants pay the respondent's costs of the motion and the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA Western Australia DISTRICT REGISTRY wag 125 of 1997 BETWEEN: stephen gerard McDADE and louise McDADE Applicants AND: ATTORNEY-GENERAL OF THE COMMONWEALTH Respondent JUDGE: r d nicholson j DATE: 1 may 1998 PLACE: perth REASONS FOR JUDGMENT HIS HONOUR: The respondent brings a motion seeking the dismissal of an application brought by the applicants seeking review pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The application seeks to restrain the conduct of proceedings under s 19 of the Extradition Act 1988 (Cth) ("the Extradition Act"). The grounds on which the application seeks review are, firstly, the respondent has failed to comply with the provisions of s 16(3) of the Extradition Act so that proceedings brought pursuant to s 19 of that Act are invalid or should be permanently stayed. Secondly, the proceedings brought by the respondent constitute an abuse of process. Background circumstances The evidence before the Court, brought by the respondent, shows the following. On 9 September 1994 the United Kingdom requested the extradition of the applicants from Australia. On 20 April 1997 a notice under s 16(1) of the Extradition Act in respect of each of the applicants was signed by the respondent. On 10 June 1997 the applicants were arrested pursuant to a warrant dated 9 June 1997 and brought before a Stipendiary Magistrate in the Court of Petty Sessions at Perth. The second‑named applicant was granted bail and remanded pursuant to s 15(2) of the Extradition Act to re‑appear at the hearing to be held pursuant to s 19(1) of that Act listed for 20 October 1997. The first-named applicant was remanded to 24 June 1997 for mention. On that latter date the solicitor for the Office of the Commonwealth Director of Public Prosecutions, instructed on behalf of the respondent, forwarded to the solicitors for the applicants the supporting documents in the extradition proceedings in respect of each of the applicants by way of service pursuant to s 16(3) of the Extradition Act. These were received by the first‑named applicant on a date between 30 June and 3 July 1997. On 24 June 1997 the first-named applicant was granted bail and remanded to re-appear at the extradition hearing which was re-listed for 17 and 18 July 1997. On 15 July 1997 the applicants applied to adjourn the extradition hearing. The application was granted and the extradition hearing adjourned and re-listed for 19 to 21 November 1997. On 12 November 1997 the application, which was dated 7 November 1997, was filed and served on the respondent. On 17 November 1997 the applicants sought to adjourn the extradition hearing pending the outcome of this proceeding and on the ground they required further time to obtain funds for legal representation. That application was declined. On 17 November 1997 the applicants filed an application under s 39B of the Judiciary Act for interlocutory relief in the form of an order or declaration that the extradition hearing scheduled for 19 November 1997 be temporarily stayed. Such stay was sought pending the decision of this Court in these proceedings and the receipt of funds from the United Kingdom to enable the applicants to be legally represented. On 18 November 1997 the application for interlocutory leave was heard by Lee J. During the course of that hearing the applicants tendered to his Honour a bundle of documents being one of the volumes of supporting documents forwarded to the office of the solicitor for the applicants. The warrant contained in the volume had not been signed or dated. The applicants also claimed the documents supplied to them were not authenticated. On that day the solicitors for the respondent forwarded to the applicants a copy of the certificates of authentication and the signed and dated warrant in respect of the extradition proceedings against each of them. On 19 November 1997 the interlocutory proceedings resumed before Lee J. The applicants added to their grounds for the seeking of interlocutory relief the requirement for time to consider the documents forwarded to them on 18 November 1997. His Honour declined the application for interlocutory relief. On 19 November 1997, prior to the commencement of the hearing of the extradition proceedings, the applicants sought an adjournment of that hearing on the grounds which they had activated in support of the application for interlocutory relief to this Court. The adjournment was granted and the proceedings listed for mention on 30 January 1998. Finally, on 19 November 1997 the solicitor for the respondent forwarded a further copy of the certificates of authentication and the signed and dated warrant to the applicants by pre‑paid post. On 15 December 1997 he forwarded to the applicants a letter setting out which of the supporting documents the certificate of authentication related to. Legislative framework Section 16 of the Extradition Act provides as follows: "16. (1) Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received. (2) The Attorney‑General shall not give the notice: (a) unless the Attorney‑General is of the opinion: (i) that the person is an extraditable person in relation to the extradition country; and (ii) that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or (b) if the Attorney‑General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought. (3) As soon as practicable after the person is remanded under section 15 or the notice is issued, whichever is the later: (a) a copy of the notice; and (b) copies of the documents referred to in paragraph 19 (2) (a) and, if applicable, paragraph 19 (2) (b), shall be given to the person." Section 15 provides for remand of a person under a provisional arrest warrant. The documents referred to in par 19(2)(a) are "the supporting documents in relation to the offence". These are defined as follows: "19(3) In paragraph (2) (a), 'supporting documents', in relation to an extradition offence, means: (a) if the offence is an offence of which the person is accused - a duly authenticated warrant issued by the extradition country for the arrest of the person of the offence, or a duly authenticated copy of such a warrant; (b) if the offence is an offence of which the person has been convicted - such duly authenticated documents are provided evidence of: (i) the conviction; (ii) the sentence imposed or the intention to impose a sentence; and (iii) the extent to which a sentence imposed has not been carried out; and (c) in any case: (i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and (ii) a duly authenticated statement in writing setting out the conduct constituting the offence." Section 19 generally provides that where a person is on remand under s 15, and the Attorney‑General has given a notice under subs 16(1), and an application is made to a magistrate, the magistrate shall determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences. The following subsections of s 19 are also relevant: "(5) In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought. (6) Subject to subsection (5), any document that is duly authenticated is admissible in the proceedings. (7) A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if: (a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and (b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal: (i) in any case - of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or (ii) where the extradition country is a colony, territory or protectorate - or of the person administering the Government of that country or of any person administering a Department of the Government of that country. (8) Nothing in subsection (6) prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory." No reasonable cause of action The first ground on which the respondent seeks the dismissal of the applicants' claim is that it discloses no reasonable cause of action: O 20 r 2(a) of the Federal Court Rules. Such dismissal may occur summarily where the claim is so obviously untenable it cannot possibly succeed: Webster v Lampard (1993) 177 CLR 598. It cannot occur if the applicants can show a case open to argument. Non-compliance with s 16(3) The first ground of the application on which this aspect of the motion for dismissal is brought is: "The documents given to the Applicant in purported compliance with section 16(3) of the Extradition Act 1988 (Cth) do not comply with the requirements of section 16(3)(b) of the Act, in particular in that they are not 'supporting documents" within the meaning of section 19(2)(a) and (3) of the Act". It is the hearing pursuant to s 19 which the applicants seek to have declared invalid or permanently stayed. The pre‑conditions for such a hearing are those set out in subs 19(1), namely that the person is on remand under s 15; a notice is issued under subs 16(1); an application has been made; and the magistrate considers "the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings". If those pre‑conditions are met it is mandatory on the magistrate to conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or offences for which surrender of that person is sought by the extradition country: cf Director of Public Prosecutions of the Commonwealth v Kainhofer (1995) 185 CLR 528 at 539. Given the establishment of the pre‑conditions, the magistrate must proceed to conduct the proceedings. This Court could have no power to declare such a proceeding, not yet held, to be invalid or to permanently stay it when there is a mandatory statutory duty for the proceeding to be conducted subject to the pre‑conditions being satisfied. Compliance with subs 16(3) is not one of those pre-conditions, nor is it a pre-condition to the magistrate finding a person is eligible for surrender - subs 19(2) of the Extradition Act. In the case of supporting documents not complying with subs 16(3) having been given to the applicants, it may be that such non-compliance is a fact relevant to a determination by the magistrate of whether the pre-condition in s 19(1)(d) has been satisfied. That is, the magistrate must consider whether such non-compliance means that neither the person nor the extradition country have had reasonable time in which to prepare for the conduct of the proceedings given that either of them did not have produced to them supporting documents complying with subs 16(3) (if that be the case). That, however, is a matter for the magistrate and not a present fact which would support the declaration of invalidity or stay sought. Furthermore, such non‑compliance could be properly remedied by the magistrate by the allowance of an adjournment pursuant to "powers to take the measures necessary to conduct the proceedings in an orderly fashion and in accordance with the dictates of procedural fairness": Papazoglou v Republic of Philippines (1997) 144 ALR 42 at 60; Jndbr Jit Singh v United States of America & Anor (Sackville J, Federal Court of Australia, 11 July 1997, unreported at 11). In any event, here the facts before the Court show that the respondent has complied with subs 16(3) and provided the applicants with copies of the documents referred to in pars 19(2)(a) and (2)(b). It is for the magistrate to determine whether this was done within reasonable time to enable appropriate preparation for the conduct of the proceedings as required by par 19(1)(d). It is also for the magistrate to determine, if necessary, whether the supporting documents have been "duly" authenticated as required by subs 19(6) of the Extradition Act. The requirement for due authentication provides no basis for intervention by the court to supervise correctness of authentication. This ground does not disclose any tenable cause of action. Abuse of process The second and third grounds in the application are: "By reason of the prolonged delay after relevant facts had become known, the institution and continuation of the proceedings are an abuse of the right to lodge a complaint and constitutes an abuse of the court's process." and "The respondent has had free and easy access to documents which are subject to legal professional privilege and such activity constitutes an abuse of the court's process." So far as ground 2 makes reference to "the right to lodge a complaint", it does not refer to any requirement in the relevant legislative framework previously addressed. In Papazoglou at 62 the Full Court, adopting what was said by Dawson J in Grassby v R (1989) 168 CLR 1, concluded there was "no room in the face of the statutory obligations contained in s 19, couched as they are in mandatory terms, for the implication of a discretionary power in the magistrate to terminate the proceedings in a manner other than that provided in the section itself". In reaching that conclusion the Court considered (at 62-63) Forrest v Kelly (1992) 34 FCR 74 and Wiest v Director of Public Prosecutions & Anor (1988) 23 FCR 472. In Forrest at 79 the Court stated the provisions of the Extradition Act there applicable (s 19) conferred no power on a magistrate to dismiss an application for the surrender of a person on the ground it represents an abuse of process or that delay would cause any trial in the requesting country to be unfair. In Wiest obiter views were expressed that a remedy would be available for an abuse of process. The Court in Papazoglou (at 63) noted consideration had not been directed, inter alia, to whether the language of the Extradition Act was compatible with the exercise of a jurisdiction to terminate proceedings as an abuse of process. It therefore did not consider the dicta in Wiest warranted a different conclusion to that it had reached. In the face of that reasoning no such argument is now open. This is further affirmed by the recent decision of Parker v Federal Republic of Germany (Heerey J, Federal Court of Australia, 10 July 1997, unreported) where at 21 his Honour, applying Papazoglou, accepted the doctrine of abuse of process does not apply to extradition proceedings in a magistrates' court. It was submitted for the applicants the fact the magistrate lacks power to stay on the authority of Papazoglou does not mean this Court lacks such power. That submission cannot be accepted because the reasoning in Papazoglou was founded on the effect of the statutory provisions, which are equally applicable to the Court. Those statutory provisions displace any argument the Court has inherent jurisdiction to act otherwise. The powers of the Court to review the orders of the magistrate, provided for in s 21, provide no basis for a different conclusion because they are premised on the magistrate having made an order under subss 19(9) or (10) determining whether or not the person is eligible for surrender. It is also relevant that in Forrest at 81 the Court referred to the discretion of the Attorney‑General under subs 22(3) of the Extradition Act to consider whether a person should be surrendered as being a discretion at large which entitled him or her to take into account matters such as delay which were there sought to be activated before the magistrate. The construction settled in Papazoglou does not therefore preclude the taking into account of such matters by the Attorney‑General after the compliance with s 19. In the consideration of Wiest in Papazoglou (at 63) the Court said Gummow J at 527-528, in stating that s 39B of the Judiciary Act provided a means of judicial review of administrative action, did not deal with the difficulty that a magistrate exercising powers under the Act there relevant, the Extradition (Foreign States) Act 1966 (Cth) - as in the case of the Extradition Act - is not an officer of the Commonwealth: Kainhofer at 591-592. This issue was not argued in this present matter. As to ground 3, there is an entire absence of identification of any documents or materials in the wording of the ground itself. Until the commencement of this hearing there was also an entire absence of any supporting evidence. At the hearing the person appearing as amicus curiae for the applicants submitted an affidavit. In summary, the affidavit recounted that the office and home of the amicus curiae had been searched and a file and audio and video cassettes of an interview with the first-named applicant had been seized. Some portion of the file it was said had subsequently been returned. The cassettes were never returned. The affidavit asserts the unlawfulness of the search. There was no evidence before this Court to enable it (even if it were proper for it to do so) to determine whether or not the search and seizure were lawful. The case for the applicants invites the Court to treat the assertion as a pleading, to be taken at its highest. This, however, is not the proper place for that issue to be argued. If the applicants have a claim of legal professional privilege it should be made to the court vested with the power to determine eligibility for extradition on the basis of the documents to which the claim for privilege wholly or partly relates. That is the magistrate hearing the s 19(1) proceedings. The magistrate would be bound to consider any such claim according to law. There is no basis whatsoever for this Court declaring proceedings yet to be held invalid or permanently staying such proceedings on the supposition the magistrate will not do so. In the course of submissions for the applicants on the issue of privilege reference was made to Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44. That decision is now to be considered in the light of the decision of the High Court in Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501). For these reasons I consider the respondent is entitled to the dismissal of the application on its first major ground being the grounds in the application do not disclose any reasonable cause of action. Application as an abuse of process Nevertheless, I proceed to consider the respondent's alternative ground for dismissal, namely that the respondent is entitled to a declaration the proceedings constitute an abuse of process. For an abuse of process to be found consideration will need to be given to the purpose of the applicants seeking the order of the court and the circumstances of the case. It will be necessary the offensive purpose be, at the very least, the predominate purpose: Re Excel Finance Corporation Ltd (rec & mgr apptd);Worthley v England (1994) 124 ALR 281. A proceeding will be an abuse of process if it is "foredoomed to fail" - Walton v Gardiner (1993) 177 CLR 378 at 393 - or if it is brought as a means of obtaining some advantage for which the proceeding is not designed or some collateral advantage point beyond what the law offers: Second Life Decor Pty Ltd v Comptroller-General of Customs & Ors (Heerey J, Federal Court of Australia, 18 August 1994, unreported). In the present proceedings the applicants were directed to file affidavits by 31 January 1998. On 5 February 1988 they were granted an extension of that direction to 28 February 1998. As has been said it was not until the morning of the hearing of this application that any affidavit material was filed on behalf of the applicants. On behalf of the respondent the Court is invited to infer that the applicants have instituted these proceedings for the sole purpose of delay. Given that the applicants have now filed an affidavit purporting to show there may be some evidence making a case of legal professional privilege arguable before the magistrate, I do not consider the inference which the respondent seeks to have drawn can be properly drawn. Conclusion For these reasons I consider the respondent's motion should be allowed on the ground the application discloses no reasonable cause of action. I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON Associate: Dated: 1 May 1998 Amicus curiae for the Applicant: V de Alwis Solicitor for the Applicant: None on Record Counsel for the Respondent: P N Bevilacqua Solicitor for the Respondent: Australian Government Solicitors Date of Hearing: 7 April 1998 Date of Judgment: 1 May 1998