Vasiljkovic v Honourable Brendan O'Connor [2010] FCA 1246

Vasiljkovic v Honourable Brendan O'Connor [2010] FCA 1246

The applicant's cause of action is res judicata as it has been merged into the prior judgment of the courts on the same issues, including confirmation by the High Court; Anshun estoppel also applies to preclude issues that could have been litigated earlier; the declarations and relief sought are not justiciable as they would require revisiting final and extant judicial orders. Therefore, the proceeding has no reasonable prospect of success and constitutes an abuse of process. Summary judgment and dismissal are warranted.

Parties
Applicant: Dragan Vasiljkovic; First Respondent: The Honourable Brendan O'Connor; Second Respondent: The Honourable Robert McClelland; Third Respondent: The Republic of Croatia; Fourth Respondent: The Officer in Charge of Silverwater Prison; Fifth Respondent: The Former Minister for Justice and Customs, The Honourable Christopher Martin Ellison
Jurisdiction
Australia
Judgment Date
19 November 2010
Procedural Posture
Application for Orders in the Nature of a Writ of Habeas Corpus and Declaratory Relief / Summary Dismissal/summary Judgment Motion Before Federal Court
Outcome
Application dismissed with costs
Legal Topics
Summary Judgment, Habeas Corpus, Res Judicata, Estoppel, Abuse of Process, Jurisdiction
Practice and Procedure Extradition Law Summary Judgment Habeas Corpus Res Judicata Estoppel Abuse of Process Jurisdiction

Case Brief

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Parties

Dragan Vasiljkovic

Applicant

The Honourable Brendan O'Connor

First Respondent

The Honourable Robert McClelland

Second Respondent

The Republic of Croatia

Third Respondent

The Officer in Charge of Silverwater Prison

Fourth Respondent

The Former Minister for Justice and Customs, The Honourable Christopher Martin Ellison

Fifth Respondent

Procedural Posture

Application for Orders in the Nature of a Writ of Habeas Corpus and Declaratory Relief / Summary Dismissal/summary Judgment Motion Before Federal Court

Legal Issues

  1. 1 Whether the applicant's cause of action is res judicata and/or barred by Anshun estoppel
  2. 2 Whether the applicant is entitled to declaratory relief that he is not an extraditable person
  3. 3 Whether these proceedings are an abuse of the process of the Court

Ratio Decidendi

The applicant's cause of action is res judicata as it has been merged into the prior judgment of the courts on the same issues, including confirmation by the High Court; Anshun estoppel also applies to preclude issues that could have been litigated earlier; the declarations and relief sought are not justiciable as they would require revisiting final and extant judicial orders. Therefore, the proceeding has no reasonable prospect of success and constitutes an abuse of process. Summary judgment and dismissal are warranted.

Court Disposition

Application dismissed with costs

Orders

  • Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and O 20 r 5 of the Federal Court Rules, the applicant's application of 14 September 2010 is dismissed.
  • The applicant is to pay the costs of the motion of the first, second, third and fifth respondents, as taxed or agreed.