Matson v Buckingham [2022] FCA 777

Federal Court of Australia

Matson v Buckingham [2022] FCA 777 File number: QUD 198 of 2022

Judgment of: LOGAN J

Date of judgment: 21 June 2022

Catchwords: PRACTICE AND PROCEDURE – application for review the exercise of power by a Registrar – where Registrar refused to accept an originating application on the basis that it constituted an abuse of process – where originating application sought to agitate a justiciable controversy not determined in other proceedings – Registrar's decision set aside EXTRADITION – bail – application for bail by person subject to extradition under the Extradition Act 1988 (Cth) – where application made to facilitate preparation for proceedings in Federal Court and High Court – where applicant already has sufficient access to facilities to prepare case – where given stage of proceedings under the Extradition Act 1988 (Cth) there is an obvious risk of non-attendance – bail refused

Legislation: Constitution s 75(v) Extradition Act 1988 (Cth) s 53 Judiciary Act 1903 (Cth) s 39B Federal Court of Australia Act 1976 (Cth) ss 23, 35A

Cases cited: Edwards v Santos Ltd (2011) 242 CLR 421 Matson v Attorney-General [2020] FCA 1558 Matson v Attorney-General (Cth) [2022] FCA 461

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 15

Date of hearing: 21 June 2022

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondent: The respondent filed a submitting notice, save as to costs

Counsel for the Interested Person: Mr M McKechnie

Solicitor for the Interested Person: Australian Government Solicitor

ORDERS QUD 198 of 2022

BETWEEN: BARON PHILLIP MATSON Applicant

AND: MC BUCKINGHAM, JUDICIAL REGISTRAR, FEDERAL COURT OF AUSTRALIA Respondent

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Interested Person

order made by: LOGAN J DATE OF ORDER: 21 JUNE 2022

THE COURT ORDERS THAT:

1. The decision of a Registrar dated 24 May 2022 to reject documents lodged with the Registry on 19 May 2022, in so far as it as it relates to the filing of an application for extension of time forming part of annexure BPM-3 to the affidavit of Baron Phillip Matson, sworn 31 May 2022 and the draft amended originating application, forming part of annexure BPM-1 to that affidavit, be set aside.

2. The application for extension of time and draft originating application be accepted for filing forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J: 1 Mr Baron Philip Matson (Mr Matson) is presently facing the prospect of imminent surrender to the United States of America pursuant to a request made of Australia by that country under the Extradition Act 1988 (Cth) (Extradition Act). That extradition request became the subject of a decision by the then acting Attorney-General in 2019 that Mr Matson be surrendered to the United States. 2 The procedural history of litigation in this Court concerning that surrender decision is to be found in a judgment of Rangiah J dismissing an application for review: see Matson v Attorney-General [2020] FCA 1558. In turn an endeavour by Mr Matson to appeal against the orders made by Rangiah J culminated in orders made on 29 April 2022 by Collier J, the effect of which was to confirm the effect of guillotine orders her Honour had earlier made which dismissed the appeal against Rangiah J's orders: see Matson v Attorney-General (Cth) [2022] FCA 461. 3 A sequel, it seems, to orders made by Collier J on 29 April 2022 was an endeavour by Mr Matson to file in the Court a further originating application. That originating application had as its focus not the 2019 surrender decision, but rather a response in December 2020 made by the then Attorney-General, the Honourable Christian Porter MP, to a letter dated 11 August 2020, by which Mr Matson requested the Attorney-General to reconsider the

subject of his extradition to the United States. The Attorney's response to that request was to state that he had no power to reconsider the request. 4 A registrar of the Court formed the view that in light of the earlier litigation history, the further application which Mr Matson sought to file in May was an abuse of process. Mr Matson has sought the review of the Registrar's decision. Whilst he has chosen as a vehicle for that review the seeking of relief under a jurisdiction akin to that of the High Court constitutionally entrenched by s 75(v) of Constitution and conferred on this Court by s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act), the essence of the relief that he seeks is the quashing of the Registrar's decision. An alternative remedy is available, in any event, under s 35A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) by which such a decision of the Registrar may be reviewed by a Judge. 5 With all due respect to the Registrar, the decision to refuse to permit the filing of the originating application was erroneous. It was founded on a misunderstanding as to the focus of the proposed originating application, which was not in any way directly to seek to impeach or challenge the finality of judicial outcomes in respect of the 2019 decision of the Attorney, but rather to call into question for an exercise of judicial power whether the Attorney did or

did not have power to reconsider the subject of extradition, as Mr Matson had requested in his letter of 11 August 2020. 6 At the very least, Mr Matson by the application which he sought to file was seeking relief in respect of that particular justiciable controversy. Again, at the very least, the question as to whether under the Extradition Act the Attorney did or did not possess a power to reconsider was a subject in respect of which the Court would have jurisdiction to grant declaratory relief pursuant to s 39B of the Judiciary Act: see Edwards v Santos Ltd (2011) 242 CLR 421. It follows, then, that the Registrar's decision must be set aside. In lieu thereof, I direct that the amended application for review be filed. 7 It is unnecessary to determine, in light of the outcome, whether an interlocutory injunction prevention extradition, should issue pending the hearing and determination of the review. 8 Further, in light of the undertaking given by the Attorney-General, there is, in my view, no practical subject matter for determination in respect of the application for interlocutory injunctive relief preventing extradition, pending the hearing and determination of the application which is now on the Court file as a consequence of the setting aside of the Registrar's decision. I therefore dismiss the application for interlocutory injunctive relief. 9 On the question of

discovery and as became apparent in the course of exchanges both with Mr Matson and the Counsel for the Attorney-General, Mr McKechnie, the subject matter of the proceeding now filed is an extremely compressed question turning on the true construction of the Extradition Act and the hitherto expressed view of the Attorney-General that he did not have power to reconsider the acting Attorney-General's decision to surrender Mr Matson. The relevant documents in respect of that justiciable controversy are correspondingly narrow; namely, Mr Matson's request at 11 August 2020 and the Attorney-General's response. There is a hitherto train of events which leads to that, but they can be of no more than background relevance. The controversy is entirely exposed by the exchange of correspondence mentioned. That being so, in my view, there is no need in the interests of justice for leave to the applicant for an order for discovery however confined. I therefore dismiss the application for discovery. 10 I order that the proceeding be heard in Brisbane at 10.15am on 24 June 2022. For that purpose, I order that the Director-General of Corrective Services Queensland, being Mr Matson's present custodian for the purposes of the Extradition Act, produce him at the Court on that date at that time. I reserve costs. 11 In respect of bail and having regard to the essence of the justiciable controversy in

the present application it may perhaps be a moot point as to whether or not there is power to grant bail given that one issue for determination, even assuming that the Attorney does have power to reconsider and earlier surrender decision is whether or not that power is compellable; as opposed to one which may or may not, according to the Attorney's value judgment, be exercised in a given case. 12 Assuming, however, as I do, that such a power may exist with it is source being s 23 of the FCA Act, what was said to be the occasion for granting bail was put quite frankly with respect, by Mr Matson. Apart from the sheer length of his present detention pending extradition or a decision in relation to that, he raised for consideration the ability readily to prepare for a hearing on 24 June 2022. His proposed place of residence would be with his mother. 13 I readily accept that Mr Matson's ability to prepare for the hearing on 24 June 2022 would be greater if he were at large. However, it is apparent from the documents that have been filed to date by him that he does have access to word processing and also, it seems for legal research purposes, the Internet. 14 As was pointed out on behalf of the Attorney-General, the intent manifest by s 53 of the Extradition Act is to assimilate the position of a person who has been ordered into custody under the Extradition Act with a person

otherwise held in custody by a State corrective services official. Necessarily, in the case of a person in custody conducting judicial proceedings, the import of s 53, if not in any event the import of an engagement of judicial power is that a custodial official is under an obligation to provide any reasonable facility to enable an effective access to judicial power by a prisoner. The hindering, without reasonable cause, of such access in respect of the judicial power of the Commonwealth was, with respect, rightly acknowledged by the Attorney-General as a matter which would fall within his particular serious concern, as indeed it would separately by this Court. Having regard to that particular obligation and its apparent observance by the Director-General of Corrective Services with respect to Mr Matson in light of the documents filed to date in this proceeding, I am not persuaded that the limits of custody are such as to prevent Mr Matson's effective engagement of Commonwealth judicial power whilst he is in custody. 15 I also take into account that there has been an exhaustive examination judicially of the subject of whether he should be extradited, albeit that there are now presently pending proceedings both in the High Court and in this Court. Mr Matson is, though, a person in imminent jeopardy of surrender, subject to undertakings given to the High Court and this Court.

There is an obvious risk in those circumstances or temptation, perhaps, of non-attendance if bail is granted. The main reason, though, why I am not persuaded that bail should be granted is that I am not persuaded that it would inhibit Mr Matson's access to the exercise of Commonwealth judicial power. I therefore dismiss the application for bail. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.

Associate: Dated: 4 July 2022