Matson v The Attorney-General of the Commonwealth of Australia [2022] HCATrans 122 (3 August 2022)

Last Updated: 8 August 2022

[2022] HCATrans 122

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B33 of 2022

B e t w e e n -

BARON PHILLIP MATSON

Plaintiff

and

THE ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 3 AUGUST 2022, AT 10.15 AM

Copyright in the High Court of Australia
HIS HONOUR: By application filed on 11 July 2022, the applicant seeks constitutional or other writs. For the reasons that I now publish, I dismiss the application. The order is:

1. The application for constitutional or other writ filed on 11 July 2022 be dismissed with costs.

I publish that order. I direct that the reasons as published be incorporated into the transcript.

On 1 February 2019, the Acting Attorney‑General of the Commonwealth made a determination that Mr Matson be surrendered to the United States of America where he was charged with offences concerning mail fraud, wire fraud, and money laundering. A warrant was issued for Mr Matson’s surrender. Under s 26(5) of the Extradition Act 1988 (Cth), the deadline for execution of the warrant was 28 July 2022.

During July 2022, this Court heard and decided several applications brought by Mr Matson. The applications were made in circumstances of increasing urgency as the deadline of 28 July 2022 approached. Mr Matson was not successful in any of those proceedings. The present application for constitutional or other writs was one of the applications filed by Mr Matson but the timetable for submissions, as proposed by Mr Matson and accepted by the respondent, extended past the likely date of the execution of the surrender warrant. Mr Matson’s real concern was to obtain: (i) interlocutory relief in this proceeding to restrain the execution of the surrender warrant; and (ii) leave to appeal from a decision of Gageler J refusing his claim that the surrender warrant or the surrender determination was invalid and interlocutory relief in that application. The interlocutory relief in each application and the leave to appeal was refused^[1]. An application by Mr Matson to reopen the decision refusing him leave to appeal was dismissed^[2].

The deadlines for all submissions in this proceeding have now passed. But so has the deadline for the execution of the surrender warrant. This Court was informed that the surrender warrant has been executed. Accordingly, this application has no practical effect. It is necessary to observe, however, that success on this proceeding could not have prevented the execution of the surrender warrant. This proceeding concerns only two decisions of the Attorney‑General of the Commonwealth of Australia, made on 7 July 2022, to refuse to revoke the surrender determination and to refuse to revoke the surrender warrant (“the Non‑Revocation Decisions”). Even if Mr Matson had successfully challenged these Non‑Revocation Decisions, the underlying warrant for his surrender would have remained valid. That was one of the reasons that interlocutory relief in this proceeding was refused. It is the reason that the permanent injunctive relief in these proceedings to prevent enforcement of the underlying warrant for his surrender, and the associated determination, would have been refused at any time prior to his surrender.

This proceeding (unlike the interlocutory application in this proceeding, which was dismissed) is, therefore, for practical purposes, moot. However, there has been no application to dismiss this proceeding challenging the Non‑Revocation Decisions^[3]. In those circumstances, it is appropriate to express briefly why this application for constitutional or other writs has no prospects of success and must be dismissed.

In this application for constitutional or other writs, filed on 11 July 2022, Mr Matson seeks a constitutional writ of prohibition to prevent further enforcement of the Non‑Revocation Decisions. Mr Matson also seeks to challenge the Non‑Revocation Decisions to similar effect by way of certiorari, mandamus and habeas corpus. Mr Matson alleges various errors by the Attorney‑General in making the Non‑Revocation Decisions, including unreasonableness, irrationality and illogicality, apprehended bias, denial of procedural fairness by denying Mr Matson a hearing with senior counsel, failure to take into account a large range of considerations, failure to make an enquiry about critical facts, and other errors of law.

In Snedden v Minister for Justice^[4], Middleton and Wigney JJ said that, in exercising the discretion to surrender a person for extradition under s 22 of the Extradition Act, the Attorney‑General may “take into account any matters, or no matters, provided that the discretion is exercised in good faith and consistently with the objects, scope and purpose of the Act”. As Logan J has correctly said^[5], those observations apply with equal force to a decision whether to revoke a surrender determination.

The reasons of the Attorney‑General for the Non‑Revocation Decisions, which were attached to an affidavit sworn by Mr Matson, were good faith determinations, consistent with the objects, scope and purpose of the Extradition Act. There was no obligation upon the Attorney‑General to consider any of the matters raised by Mr Matson, and no obligation upon the Attorney‑General to express reasons in relation to any of those matters. There was no obligation upon the Attorney‑General to afford Mr Matson the opportunity to make further representations beyond those that he made to the Attorney‑General, or to afford Mr Matson further opportunity to obtain, or to provide him with, legal advice. None of the legal or factual errors alleged by Mr Matson is capable of invalidating the Non‑Revocation Decisions. Mr Matson’s application discloses no arguable basis for the relief he seeks.

In circumstances in which Mr Matson’s application for constitutional or other writs does not disclose an arguable basis for the relief sought and is, in any case, moot, it is appropriate that the application be dismissed with costs without a hearing, pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

Please adjourn the Court.

AT 10.16 AM THE MATTER WAS CONCLUDED

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[1] Matson v The Attorney-General of the Commonwealth of Australia [2022] HCATrans 120.

[2] Matson v The Attorney-General of the Commonwealth of Australia [2022] HCATrans 121.

[3] See High Court Rules 2004 (Cth), r 28.01.3.

[4] [2014] FCAFC 156; (2014) 230 FCR 82 at 108 [150], quoting Rivera v Minister for Justice and Customs [2007] FCAFC 123; (2007) 160 FCR 115 at 119 [14].

[5] Matson v Attorney-General [2022] FCA 790 at [45].