Case: NAMU of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 999
Outcome: cited
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 &amp; Multicultural &amp; 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 apply in case any difficulties should arise in relation to the implementation of my order s . 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 &amp; 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 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1735.html