Tervonen v Finland [2008] FCA 1539

Tervonen v Finland [2008] FCA 1539

Leave to appeal was granted because the decision summarily dismissing the applicant's application was attended with sufficient doubt: it was arguable that Kainhofer foreclosed the applicant's argument only in relation to s 19 proceedings and not a challenge to the Minister's s 16 opinion; the application of Anshun estoppel and abuse of process involved evaluative judgments open to legitimate argument; and refusal of leave could cause substantial injustice because the applicant had a real interest in limiting the offences for which he might be surrendered.

Jurisdiction
Australia
Judgment Date
16 October 2008
Procedural Posture
Application for Leave to Appeal in Extradition Proceedings / Leave to Appeal Against Summary Dismissal of Application Challenging an Extradition Request
Outcome
Leave to appeal granted; costs reserved.
Legal Topics
['leave to Appeal' 'extraditable Person' 'section 16 Notice' 'section 19 Eligibility for Surrender' 'anshun Estoppel' 'abuse of Process' 'summary Dismissal']
['extradition' 'administrative Law' 'civil Procedure'] ['leave to Appeal' 'extraditable Person' 'section 16 Notice' 'section 19 Eligibility for Surrender' 'anshun Estoppel' 'abuse of Process' 'summary Dismissal']

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Procedural Posture

Application for Leave to Appeal in Extradition Proceedings / Leave to Appeal Against Summary Dismissal of Application Challenging an Extradition Request

Legal Issues

  1. 1 ["Whether leave should be granted to appeal against Flick J's dismissal of the applicant's application." "Whether the applicant's argument that some Finnish warrants were for pre-trial investigation rather than for trial as a person accused of offences was foreclosed by Kainhofer or earlier proceedings." 'Whether the applicant was precluded by Anshun estoppel from raising arguments not pressed on the appeal from Rares J.' 'Whether the further proceedings were an abuse of process.' 'Whether refusal of leave would cause substantial injustice if the decision below were wrong.']

Ratio Decidendi

Leave to appeal was granted because the decision summarily dismissing the applicant's application was attended with sufficient doubt: it was arguable that Kainhofer foreclosed the applicant's argument only in relation to s 19 proceedings and not a challenge to the Minister's s 16 opinion; the application of Anshun estoppel and abuse of process involved evaluative judgments open to legitimate argument; and refusal of leave could cause substantial injustice because the applicant had a real interest in limiting the offences for which he might be surrendered.

Court Disposition

Leave to appeal granted; costs reserved.

Orders

  • ['Leave is granted to appeal against the judgment of Flick J in Tervonen v Finland [2008] FCA 1133.' 'Costs of the application for leave to appeal are reserved.']