O'Donoghue v Honourable Brendan O'Connor [2011] FCA 813

O'Donoghue v Honourable Brendan O'Connor [2011] FCA 813

The application to amend and re-open was refused because the applicant's materials either were not fresh evidence or were not material and were highly unlikely to establish that the extradition request dated 26 May 2004 was fraudulent. The existing evidence was highly likely to demonstrate that an extradition request was received before the s 16 notice was issued, and the discrepancy between references to 25 May 2004 and the request dated 26 May 2004 was minor and did not support the fraud allegation. The proposed further grounds were largely submissions, already covered matters in the substantive application, and were not based on the alleged fresh evidence.

Jurisdiction
Australia
Judgment Date
29 August 2011
Procedural Posture
Application to Amend Grounds of Review and to Re Open Substantive Application for Review Concerning Extradition / After Hearing of the Substantive Application and Before Delivery of Judgment
Outcome
The applicant's application to amend his grounds of review was dismissed, and leave to re-open the substantive application was refused.
Legal Topics
['amendment of Grounds of Review' 'leave to Re Open After Judgment Reserved' 'fresh Evidence' 'allegation of Fraud in Extradition Request' 'extradition Act 1988 (cth) S 16 Notice']
['administrative Law' 'extradition' 'civil Procedure'] ['amendment of Grounds of Review' 'leave to Re Open After Judgment Reserved' 'fresh Evidence' 'allegation of Fraud in Extradition Request' 'extradition Act 1988 (cth) S 16 Notice']

Case Brief

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Procedural Posture

Application to Amend Grounds of Review and to Re Open Substantive Application for Review Concerning Extradition / After Hearing of the Substantive Application and Before Delivery of Judgment

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to amend Ground 1 to allege that the extradition request dated 26 May 2004 was invalid, not genuine and a fraud.' 'Whether the applicant should be permitted to re-open the substantive application on the basis of alleged fresh evidence.' 'Whether the documents relied upon by the applicant were fresh evidence and were sufficiently material to affect the result.']

Ratio Decidendi

The application to amend and re-open was refused because the applicant's materials either were not fresh evidence or were not material and were highly unlikely to establish that the extradition request dated 26 May 2004 was fraudulent. The existing evidence was highly likely to demonstrate that an extradition request was received before the s 16 notice was issued, and the discrepancy between references to 25 May 2004 and the request dated 26 May 2004 was minor and did not support the fraud allegation. The proposed further grounds were largely submissions, already covered matters in the substantive application, and were not based on the alleged fresh evidence.

Court Disposition

The applicant's application to amend his grounds of review was dismissed, and leave to re-open the substantive application was refused.

Orders

  • ["The applicant's application to amend his grounds of review be dismissed." 'The applicant pay the costs of the first and second respondents to be taxed if not agreed.']