FEDERAL COURT OF AUSTRALIA Zentai v Republic of Hungary (No 2) [2006] FCA 1735 MIGRATION – extradition – application to stay eligibility proceedings in Magistrates Court pending outcome of appeal Extradition Act 1988 (Cth) s 19 Federal Court of Australia Act 1976 (Cth) s 23 Tuncak and Others v Young (1987) 14 ALD 286 cited NAMU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 999 cited Bercove v Hermes (No 2) (1983) 51 ALR 105 cited CHARLES ZENTAI v REPUBLIC OF HUNGARY, ELIZABETH WOODS AND COMMONWEALTH OF AUSTRALIA WAD 31 OF 2006 FRENCH J 30 NOVEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 31 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: CHARLES ZENTAI Applicant AND: REPUBLIC OF HUNGARY First Respondent ELIZABETH WOODS Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent JUDGE: FRENCH J DATE OF ORDER: 30 NOVEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The first respondent is hereby restrained, until the determination by the Full Court of the appeal in WAD 273 of 2006 or further order, from prosecuting the eligibility proceedings under s 19 of the Extradition Act 1988 (Cth) before any member of the Magistrates Court of Western Australia. 2. There is liberty to any party to apply. 3. The motion and affidavit in support of these proceedings be uplifted and filed with the original application. 4. The costs of the motion are reserved to the Full Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 31 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: CHARLES ZENTAI Applicant AND: REPUBLIC OF HUNGARY First Respondent ELIZABETH WOODS Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent JUDGE: FRENCH J DATE: 30 NOVEMBER 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 12 September 2006 Siopis J dismissed an application brought by Charles Zentai, who is the subject of extradition proceedings brought by the Republic of Hungary. The question of Mr Zentai's eligibility for extradition has been the subject of hearing before a magistrate who is a member of the Magistrates Court of Western Australia. 2 Mr Zentai contended that the learned magistrate was precluded from conducting the proceedings to determine eligibility under s 19 of the Extradition Act 1988 (Cth) (the Act)on the basis that it was unlawful for the Commonwealth to legislate for State judicial officers to carry out the administrative functions prescribed in that section. He sought a declaration that ss 19 and 46 of the Act are invalid as going beyond the legislative power of the Commonwealth. The application was dismissed by his Honour with costs on 12 September 2006. Subsequently, a notice of appeal was filed against his Honour's decision. 3 The appeal has been set down for hearing in the February sittings of the Full Court in Perth. Pending the determination of the application before Siopis J, the extradition eligibility hearing, which was listed before Magistrate Woods on 13 February 2006 was adjourned for mention on 17 March 2006, further adjourned to 20 June 2006, and then again to 22 September 2006. The hearing at that time was further adjourned to 11 December 2006. The Chief Stipendiary Magistrate, who is named as second respondent in the appeal proceedings, has advised the parties that the matter would be set down for hearing on 11 December 2006. 4 Mr Zentai applies for a stay pending the hearing and determination of the appeal in the following terms: 'That the extradition proceedings in the Magistrates Court of Western Australia brought by the [Republic of Hungary] against [Mr Zentai] be stayed pending the determination by the Full Court of the Federal Court of the appeal filed by [Mr Zentai] against the finding by Siopis J that Magistrates sitting on the Magistrates Court of Western Australia may exercise functions under the Extradition Act 1988 (Cth).' Mr Zentai contends that his appeal will be rendered nugatory if an order is not made that the Magistrates Court, in effect, stay the extradition proceedings against him until the determination of the appeal to the Full Court, which is said to involve a constitutional question about the validity of s 19 in so far as it confers functions under Commonwealth law upon State magistrates. It is also said, and there is no dispute, that the balance of convenience lies with Mr Zentai in applying for this stay, and that no prejudice flows to the respondents. Upon the return of the motion before me, counsel for the Republic of Hungary indicated that his client had not instructed him to oppose the application. 5 The motion itself was filed in the appeal proceedings, and the question arises whether, if this were an exercise of the appellate jurisdiction of the Court I, as a single judge, would have power to make an order of the kind contemplated. I think that is highly questionable. There is, nevertheless, authority for the proposition, including my own decision in Tuncak and Others v Young (1987) 14 ALD 286, and that of Hely J in NAMU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 999, and the earlier decision of Toohey J in Bercove v Hermes (No 2) (1983) 51 ALR 105 that is it open to a single judge, in the exercise of the original jurisdiction of the Court and the application of the powers conferred upon judges of the Court under s 23 of the Federal Court of Australia Act 1976 (Cth), to make an interlocutory order to ensure that an appeal to the Full Court, if successful, would not be nugatory, notwithstanding that the proceedings at first instance had been dismissed by the order of another judge of the Court. 6 Hely J in NAMU said (at [11]): 'The weight of authority thus favours the proposition that a single judge may, in the exercise of the original jurisdiction of the Court, and notwithstanding the dismissal of proceedings at first instance, grant an interlocutory injunction to operate pending a determination of an appeal to a Full Court. In Bercove v Hermes Toohey J granted the interlocutory injunction even though the order dismissing the proceedings had been made by another judge of the Court. Accordingly, I reject the Minister's submission that the present application is not one which may be entertained by a single judge. Neither party asked me to refer the Motion to Beaumont J, and I conclude that I have the power to entertain it. The Motion was filed in the appeal proceedings, but that is an irregularity which is capable of being cured.' In this case the order which is sought, as reflected in a minute of orders which has been submitted to the Court, would require the Chief Magistrate and the Magistrates Court to "be restrained from proceeding with any extradition process involving the applicant until further order". Quite apart from the question of whether the Magistrates Court as an entity can be so restrained, having regard to the fact that the relevant function is conferred persona designata upon the individual Magistrate allocated to hear it and not in the exercise of a judicial function, there is the issue of comity and proper respect between courts which would make me very reluctant to make an order of the kind sought. 7 It has long been the practice where a stay has been sought of proceedings in one court by a party involved in proceedings in another that the form of restraint is directed to the party prosecuting the proceedings in the other court, so that rather than an order purporting to apply directly to that court, which may of course raise questions not just of comity but of power, the order is directed to the party to restrain it from prosecuting the proceedings. The form of order that is appropriate in this case, and I am satisfied as a matter of discretion that it is appropriate to protect the utility of the pending appeal, is an order which would restrain the first respondent, that is the Republic of Hungary, from further prosecuting the eligibility proceedings under s 19 before any magistrate in the Magistrates Court of Western Australia pending the hearing and determination by the Full Court of the appeal or further order, and it is an order in those terms that I propose to make. I will allow liberty to applyin case any difficulties should arise in relation to the implementation of my orders. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 14 December 2006 Counsel for the Appellant: Dr S Churches Solicitor for the Appellant: Cannon Bowden & Co Counsel for the First Respondent: Mr DWL Renton Solicitor for the First Respondent: Commonwealth Director of Public Prosecutions Date of Hearing: 30 November 2006 Date of Judgment: 30 November 2006