Re Eugen Alexander Wiest v the Director of Public Prosecutions; the Federal Republic of Germany [1988] FCA 169 (27 May 1988)

FEDERAL COURT OF AUSTRALIA

Re: EUGEN ALEXANDER WIEST
And: THE DIRECTOR OF PUBLIC PROSECUTIONS; THE FEDERAL REPUBLIC OF GERMANY
No. G951 of 1988
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies(1) J.

CATCHWORDS

Administrative Law - application seeking order restraining proceedings on a second warrant for extradition - whether court should interfere in proceedings before a magistrate - whether extradition proceedings are administrative or judicial in nature - whether a decision of a magistrate under s.17 of the Extradition (Foreign States) Act is final - whether first order made by magistrate prevents subsequent proceedings for extradition being brought - res judicata - issue estoppel.

Amrit Lal Narain v. Parnell (1986) 9 FCR 479

Newby v. Moodie and Another (1987) 88 ATC 4072

Zoeller v. Federal Republic of Germany and Others (unreported, delivered 22 March 1988)

The Administration of Papua New Guinea v. Daera Guba [1973] HCA 59; (1973) 130 CLR 353

United States v. Ford and Frary 29 DLR 80

Extradition (Foreign States) Act 1966 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1901 (Cth) s.39B

HEARING

SYDNEY
27:5:1988

Counsel for the applicant: Mr J.S. Coombs Q.C. with Mr I.A. Shearer

Solicitors for the applicant: Sly and Russell

Counsel for the respondent: Mr J. Spigelman Q.C. with Mr A. Robertson

Solicitor for the respondent: Director of Public Prosecutions

ORDER

The application be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

DECISION

The issues in these proceedings arise from the circumstance that the applicant, Eugen Alexander Wiest, is the subject of a second set of proceedings before a Magistrate seeking his extradition to the Federal Republic of Germany pursuant to the Extradition (Foreign States) Act 1966 (Cth)("the Act").

2. In the first set of proceedings, which commenced with the arrest of the applicant on 21 October 1987 and concluded with an order for his release on 27 April 1988, there was a deficiency in the material presented to the learned Magistrate, Mr D.B. Armati. The form of undertaking which was tendered in evidence to comply with s.13(2) of the Act was in the form which Sheppard J. in Zoeller v. Federal Republic of Germany & Others (unreported, delivered 22 March 1988) held to be defective. In those first proceedings, counsel for the Director of Public Prosecutions sought leave to reopen his case so as to tender an additional undertaking in proper form. The learned Magistrate refused leave to reopen and ordered that the applicant be released.

3. On the same day, the applicant was again arrested and new proceedings for the extradition of the applicant to the Federal Republic of Germany were commenced. The applicant is now remanded on bail to appear on 30 May 1988 to answer the second warrant. The matters to be considered in these second proceedings are substantially identical with those in the first, save that the Director of Public Prosecutions intends to tender the new undertaking.

4. The jurisdiction of the Court is that arising under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and also that arising under s.39B of the Judiciary Act 1901 (Cth). The application in form seeks an order restraining the first and second respondents from proceeding on the second warrant dated 27 April 1988, but at the hearing no order was sought against the second respondent.

5. Recently Fox J. in Newby v. Moodie and Another (1987) 88 ATC 4072, pointed out that the Court will rarely interfere with the exercise of a discretion to prosecute in criminal proceedings. His Honour said at p.4074:-

"Following well-established authority, the exercise of
the discretion to prosecute is not open to review in the
courts (Hill v. Chief Constable of West Yorkshire (1987)
2 WLR 1126 at 1133-34, The Queen v. Toohey; Ex parte
Northern Land Council(1980-1981) [1981] HCA 74; 151 CLR 170 at 283,
Barton v. The Queen [1980] HCA 48; (1980) 147 CLR 75 at pp 94, 96,
107 and 109-110, The Queen v. McAuley; Ex parte Fardell
(1979) 41 FLR 267 at p 274, The Queen v. Commissioner
of Police of the Metropolis; Ex parte Blackburn (1968) 2
QB 118 at p 136)."

His Honour also referred to Lamb v. Moss [1983] FCA 254; (1983) 49 ALR 533 and said that, if the matter were one for the discretion of the Court, he would execise his discretion not to intervene. In Holmes v. The Deputy Commissioner of Taxation delivered 13 May 1988, I expressed a like view. On 18 March 1988, when refusing to grant special leave to appeal in Vereker and Others v. O'Donovan, (1988) 6 Leg Rep SL 3, Mason C.J., Wilson and Gaudron JJ. said:-

"... it (the jurisdiction exercised by the Federal Court
in relation to committal proceedings) is a jurisdiction
to be exercised very sparingly and in most exceptional
cases only."

Such remarks are also apposite to proceedings brought before a magistrate with respect to extradition. There must be exceptional circumstances to justify the Court's intervention in the proceedings before the magistrate.

6. In the present case, I take the same view as did Fox J. in Newby v. Moodie and Another, cited above. The Court should not intervene insofar as the bringing of the second proceedings is alleged to be an abuse of process by reason of the first proceedings, their conduct and prejudice caused to the applicant thereby. Insofar as those matters have merit, and as to that I say nothing, they are matters which should be put to the learned Magistrate when the matter comes before him on 30 May 1988. They are not matters which call for the Court's intervention at this stage. The Magistrate has jurisdiction to consider such submissions and it is not an abuse of process for him to do so. It is for the Magistrate to consider and determine, at least in the first instance, whether there has been an abuse of process justifying the dismissal of the current proceedings.

7. An exceptional ground for the Court's intervention may, however, arise if both parties submit, as they did in this case, that the Court should determine a discrete and important point of law which arises in the proceedings before the magistrate. The Court is not bound to act upon the request of the parties, for it has a discretion whether or not to do so, but it may see fit to do so, eg., when the point of law is an appropriate one for the decision of the Court, when to do so will do justice between the parties and when a decision of the point will not delay the proceedings before the magistrate.

8. In the present case, those circumstances are met. I therefore propose to deal at this stage with the submissions made by Mr J.S. Coombs Q.C., with whom Mr I.A. Shearer appeared for the applicant, that the order made by the learned Magistrate on 27 April 1988 releasing the applicant was an order which finally released the applicant from extradition with respect to the charges to which those proceedings related. Mr Coombs relied upon the principles of res judicata and issue estoppel and also upon the nature of the function of the Magistrate as gleaned from the Act.

9. I need not discuss the general principles with respect to res judicata and issue estoppel. It is sufficient to refer to Port of Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 597-604, Chamberlain v. Deputy Commissioner of Taxation, Brennan, Deane, Dawson, Toohey and Gaudron JJ. delivered 12 May 1988 and to SCI Operations Pty Ltd & Anor v. Trade Practices Commission & Ors (1984) 53 ALR 253 at 346-351. The issue now is whether those principles apply to the decision of the Magistrate of 27 April 1988.

10. Clearly, the nature of the function of a magistrate under the Act is more administrative than judicial. This matter was considered by Burchett J. in Amrit Lal Narain v. Parnell (1986) 9 FCR 479. His Honour was there considering the exercise by a magistrate of the function of granting bail but expressed his view more widely. At p.483, his Honour said:-

"That the decision upon the question of bail is an
administrative one seems to me to follow from the nature
of the functions of a magistrate under the Act, to which
I shall refer later in these reasons, and to be in
keeping with the authorities which hold that a
magistrate hearing committal proceedings is acting in an
administrative, not a judicial, capacity. In Ex parte
Cousens; Re Blacket (1946) 47 SR (NSW) 145 at 146-147,
Jordan CJ, speaking for a Full Court, contrasted the
judicial duties of magistrates with their duties in
respect of committal hearings. He said:

'In relation to charges of offences which they have
no jurisdiction to try and dispose of, their
authority is not judicial; they do not determine
whether the accused is guilty or not guilty; they
consider the evidence adduced against him, and if
they think that there is enough to justify putting
him upon his trial, they direct that he be held, or
bailed, for trial by a court which has jurisdiction
to try him. This is essentially an executive and
not a judicial function; and although magistrates
have been exercising this authority for nearly four
hundred years, no instance can be found of a
superior court having interfered with a magistrate
by certiorari or prohibition in his exercise of
this function: see Cox v Coleridge [1822] EngR 19; (1822) 1 B & C
37, 107 ER 15. It is quite true, as was pointed
out by Griffith CJ in Huddart Parker & Co Pty Ltd v
Moorehead [1909] HCA 36; (1909) 8 CLR 330 at 357, that, in the
course of the nineteenth century, many laws were
passed both in England and Australia regulating the
procedure in such inquiries, but, as his Honour
also pointed out, they have not the effect of
altering the essential nature of the inquiry, which
cannot be regarded now, any more than formerly, as
an exercise of judicial functions.'

There have been a number of more recent decisions
affirming the administrative character of committal
hearings (see Ammann v Wegener [1972] HCA 58; (1972) 129 CLR 415 at
435; Pearce v Cocchiaro [1977] HCA 31; (1977) 137 CLR 600; Lamb v Moss
[1983] FCA 254; (1983) 49 ALR 533; and R v Murphy [1985] HCA 50; (1985) 59 ALJR 682 at
684), but I have quoted from the judgment of Jordan CJ
in Cousens' case, perhaps unnecessarily, because its
language emphasises that the decision whether to release
on bail is an integral part of the administrative
function of the magistrate. (As to this, see also the
Chief Justice's further remarks at 685-686.)

In the present case, the decision was not made in the
exercise of a general power to grant bail to persons
charged with indictable offences. It was made under the
specific power conferred by s 26(2). But I think that
power is likewise administrative in nature, being not
only comparable to the corresponding power of a
committing magistrate, but also an incident of the
performance of duties in respect of extradition
procedures which are themselves administrative: see
Riley v Evans (1983) 50 ALR 593, and on appeal Riley v
The Commonwealth (1984) 57 ALR 249; Prevato v The
Governor, Metropolitan Remand Centre [1986] FCA 17; (1986) 8 FCR 358."

11. His Honour's view finds strong confirmation in the terms of the Act and the context in which the magistrate's functions play a part. The procedures of extradition are administrative involving a requisition by a foreign State for the surrender of a fugitive who is in or on the way to Australia, a notice by the Attorney-General of the Commonwealth of Australia stating that the requisition has been made and, if necessary, authorising the issuing of a warrant of apprehension, the issuing of a warrant of apprehension under s.16 of the Act, proceedings before a magistrate in which the question before the magistrate is that posed in s.17(6)(b), namely, whether the magistrate "is satisfied, after taking into account any evidence properly adduced by the person, that the person is liable to be surrendered to the foreign State that made the requisition for the surrender", the issue by the magistrate, if so satisfied, of a warrant committing the person to prison to await the warrant of the Attorney-General for the surrender of the person and, finally, the issue by the Attorney-General, if he is satisfied that the fugitive is liable to be surrendered to the foreign State and that the requisition for the surrender has not been made in relation to an offence of a political character, of a warrant authorising the taking of the fugitive and the conveying of him to the foreign State and of there surrendering him to a person appointed by the foreign State to receive him.

12. These are all steps of an administrative character. They have little judicial element in them save that they involve the formation by a magistrate after a hearing of an opinion as to whether or not the matters specified for his consideration have been fulfilled.

13. In Lamb v. Moss & Anor. [1983] FCA 254; (1983) 49 ALR 533, Bowen C.J., Sheppard and Fitzgerald JJ. examined the function of a magistrate in committal proceedings and held that those functions were administrative for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth). In R. v. Murphy [1985] HCA 50; (1985) 158 CLR 596, Gibbs C.J., Mason, Wilson, Brennan, Deane and Dawson JJ. said that such proceedings were sui generis and had a distinctive judicial character because they were civil proceedings. Their Honours held nevertheless that committal proceedings were properly to be regarded as non-judicial in character.

14. Extradition proceedings have even more clearly the character of administrative proceedings, for they do not, as do committal proceedings, have a connection with the exercise of judicial power.

15. Extradition is not a matter which is regulated by international law. The duty to extradite arises ordinarily from a treaty and, if necessary, a local statute or statutes implementing the treaty obligation. As Lord Russell C.J. said in In re Arton, No.1 (1896) 1 QB 108 at p 111:-

"The law of extradition is, without doubt, founded upon
the broad principle that it is to the interest of
civilized communities that crimes, acknowledged to be
such, should not go unpunished, and it is part of the
comity of nations that one state should afford to
another every assistance towards bringing persons guilty
of such crimes to justice."

Judicial involvement in the extradition process is by way of control and supervision only. As O'Connell on International Law, (Stevens & Sons, 2nd Ed., Vol. 2, London, 1970) at p.730 states:-

"Judicial control over extradition is a matter for
municipal law, which may dispense with it and leave
extradition to the Executive. This was the case with
France until 1927. Like the French system under the law
of that year the Anglo-American law is described as
'facultative'; that is, the court must decide if there
is a good claim for extradition and then the Executive
may, but is not obliged to, accede to the request for
extradition."

16. It should also be noted that an extradition is not a final judgment determining rights and liabilities. An order in respect of extradition does not amount to a conviction. Extradition proceedings involve the return of a person who is in Australia to another country where that person has been convicted of a crime or is to be tried for a crime. Extradition is as, O'Connell states, facultative of criminal justice.

17. Mr Coombs submitted that the process had been categorised as administrative because, until the Act was amended in 1985 by Act No. 18 of 1985, the magistrate had the task of examining whether or not there was a prima facie case of guilt, having regard to the evidence against the person to be extradited. Mr Coombs submitted that such an examination, being similar to that undertaken by a magistrate in committal proceedings, required that extradition proceedings be characterised as administrative in nature, by analogy with committal proceedings. He submitted that the amendment made in 1985 withdrawing this examination from the function of a magistrate destroyed the analogy.

18. However, it does not follow from the omission of the requirement for an examination of a prima facie case that extradition proceedings before a magistrate are judicial in nature. Rather, the function now tends more to the ministerial, for the element which required the exercise of a judicial type consideration, namely the formation of a judgment as to the existence of a prima facie case, no longer forms part of the function. One cannot conclude from that withdrawal that Parliament intended to or did convert an administrative function into a judicial function.

19. Nevertheless, to categorise the function of the magistrate as administrative or non-judicial is not to conclude the issue. The headnote to The Administration of Papua New Guinea v. Daera Guba [1973] HCA 59; (1973) 130 CLR 353 at p 453, records Menzies, Gibbs and Stephen JJ. as holding that:-

"The doctrine of estoppel extends to the decision of any
tribunal which has jurisdiction to decide finally a
question arising between parties, even if it is not
called a court, and its jurisdiction is derived from
statute or from the submission of parties, and it only
has temporary authority to decide a matter ad hoc: ..."

One of the issues considered in that case was whether or not members of the Tubumaga Clan were estopped by a determination of a Land Board with respect to the ownership of certain land which they claimed. At p.453, Gibbs J., with whom Menzies and Stephen JJ. in this respect agreed, said:-

"In other words, the present case is one of cause of
action estoppel, not issue estoppel. Secondly, much
attention was directed to authorities that deal with the
nature of judicial power, for example in relation to
Ch.III of the Constitution. In many of the authorities
that discuss this form of estoppel, it is said that the
estoppel is brought about by a judicial decision,
pronounced by a judicial tribunal. Thus in a recent
case, Carl Zeiss Stiftung v. Rayner & Keeler Ltd (No.2)
(1967) 1 AC 853, at p 933, Lord Guest said:

'The rule of estoppel by res judicata, which is
a rule of evidence, is that where a final decision
has been pronounced by a judicial tribunal of
competent jurisdiction over the parties to and the
subject-matter of the litigation, any party or
privy to such litigation as against any other party
or privy is estopped in any subsequent litigation
from disputing or questioning such decision on the
merits (Spencer Bower on Res Judicata, p.3).'

The use of the phrase 'judicial tribunal' in this
context is convenient as indicating that an estoppel of
this kind does not result from a mere administrative
decision, but the question whether such an estoppel is
raised is not answered by inquiring to what extent the
tribunal exercises judicial functions, or whether its
status is judicial or administrative : see Caffoor v.
Commissioner of Income Tax, Colombo, per Lord Radcliffe
(1961) AC 584, at pp 597-599. A fairly obvious
example is the case of a court-martial, whose sentence
might in some circumstances be pleaded as an estoppel
(Hannaford v. Hunn (1825) 2 C & P 148 at p 155, (172
ER 68, at p 71), although not made in the exercise of
judicial power (cf. R. v. Bevan; Ex parte Elias and
Gordon [1942] HCA 12; (1942) 66 CLR 452, at pp 466-468; R. v. Cox;
Ex parte Smith [1945] HCA 18; (1945) 71 CLR 1, at p 23). The
doctrine of estoppel extends to the decision of any
tribunal which has jurisdiction to decide finally a
question arising between parties, even if it is not
called a court, and its jurisdiction is derived from
statute or from the submission of parties, and it only
has temporary authority to decide a matter ad hoc: see
Halsbury's Laws of England, 3rd ed., vol. 15,
pp.212-214; Spencer Bower & Turner on Res Judicata, 2nd
ed. (1969), pp. 21-28. It will accordingly not be
necessary to canvass the authorities to which we were
referred, and which deal either with issue estoppel or
with the nature of judicial power."

See also Somodaj v. Iron and Steel Ltd (1961) 52 SR(NSW) 305, aff on app [1963] HCA 50; (1963) 109 CLR 285, and Pastras v. The Commonwealth (1966) 9 FLR 152.

20. The decision of a magistrate under s.17 of the Act is not final in the sense used by Gibbs J.. As I have pointed out, such a decision does not determine rights or liabilities, it does not convict or acquit, it is merely a step in an administrative procedure and results in a custodial warrant or an order of release. The function of a magistrate is not a final, determinative function such as that discussed in Daera Guba's case and in Somodaj's case.

21. The authorities make that clear. In In re Gerhard (No. 3) (1901) 27 VLR 655 Holroyd J. held, in a case where a person had been discharged from one set of extradition proceedings and had been brought back in a second set of proceedings for the same offence, that the plea of autrefois acquit did not apply. As his Honour said at p.664:-

"Gerhard could not have been legally tried for any
offence, and therefore could not have been acquitted, in
this country."

To the same effect is In Re Ley and Another (1883) SALR 125, the same view was taken. At p 128, Boucaut J. said:-

"When a warrant is issued in England, and by reason of
negligence of the prosecution a prisoner is discharged
on habeas, there is no doubt that a second warrant can
be issued. ..."

In Smith v. Collis (1910) 10 SR(NSW) 800, it was held that where a person had been discharged on the ground that there was no strong or probable presumption of the commission of the crime charged, the matter could go again to a magistrate to commit "on materially additional evidence". At pp.811-2, Cullen C.J. referred to the like inquiry in a commitment for trial and said:-

"In such a case he is not acting judicially; 'he is only
an officer deputed by the law to enter into a
preliminary enquiry, and the law which casts upon him
that jurisdiciton presumes that he will do his duty in
enquiring whether the party ought to be committed or
not.' Cox v. Coleridge (1 B & C 51); Huddart Parker &
Co. Proprietary, Ltd. v. Morehead (8 CLR, 355-7). In
cases like the present he has not even arrived at that
stage ..."

See also R. v. Governor of Brixton Prison (1912) 3 KB 424, Re State of Wisconsin and Armstrong (1972), 8 CCC (2d) 452 and United States v. Ford and Frary 29 DLR 80, in which Mathers C.J.KB said at p 83:-

"Counsel for the accused relied upon two cases, Ex parte
Seitz (No.2), 3 Can Cr Cas 127, and King v. Harsha
(No.2), 11 Can Cr Cas 62. In the former it was held
that a fugitive who had been committed for extradition
and discharged upon habeas corpus because the committing
commissioner had acted without jurisdiction might be
legally re-arrested upon the same charge. In the Harsha
case the fugitive had been committed for extradition but
obtained his discharge upon habeas corpus because the
evidence against him 'would not have justified the
magistrate in committing the prisoner had the offence
been committed in this country.' It was held that such
discharge was no bar to his subsequent arrest for the
same offence. The language of Boyd, C., by whom the
judgment was delivered, is entirely opposed to the
contention of the accused that the plea of autrefois
acquit is open to them. He says, at p.65:-

'The doctrine of res judicata or former
jeopardy or of autrefois acquit is in each
particular quite inapplicable to this method of
preliminary inquiry.'

The question is settled against the contention of the
fugitives by Reg. v. Morton et al, 19 UCCP 9, where
it was held that a second arrest for the same cause upon
a new warrant after a discharge at the expiration of a
very full investigation was perfectly valid. Hagarty,
C.J., disposes of the objection by saying (p.14):-

'The failure of any one magistrate from mistake
or otherwise, to commit persons charged for
extradition, cannot, in my opinion, prevent the
action of another duly qualified officer from
entertaining the charge on the same or on fresh
materials.'

Wilson J., used language to the same effect. Referring
to the proceedings before the first magistrate, he said,
p.23:-

'Giving them their full weight, they are no bar
or answer to the case before us any more than the
dismissal of a charge by one magistrate would
preclude another from investigating the same
charge.'"

22. Authors write to the same effect. See I.A. Shearer on Extradition in International Law, (Manchester University Press) at p.195, V.E. Hartley Booth on British Extradition and Procedure, (Sijthoff & Noordhoff, Netherlands, 1980) at p.63, Satya Devi Bedi on Extradition in International Law and Practice, (Dennis & Co., New York, 1966) at pp.141-2, M.L. Friedland on Double Jeopardy, (Clarendon Press, Oxford, 1969) at p.271 and G.V. La Forest on Extradition To and From Canada, (Canada Law Book, Toronto, 1977), 2nd Ed. at p.118.

23. Recent decisions, though not precisely on point, go in the same direction. See In re Rees (1986) 1 AC 937 and Zoeller v. Attorney-General and Ors (1987) 76 ALR 267.

24. Mr Coombs relied, nevertheless, upon the reasons of Lord Morris in Atkinson v. United States of America Government (1971) AC 197 where his Lordship said at p 242:-

"If, as in the present case, some point of law is raised
and if by reason of a wrong ruling upon it a person is
released, is the foreign state powerless to ask the
court to correct the error? If the foreign state seeks
to start again, an application for a warrant for the
arrest of the released man would surely be met by the
answer that the competent court had given its decision.

Even ... if what is being looked for is some proceeding
having a final character or involving some final
determination, then the decision of the magistrate would
be a decision in such a proceeding. It would mark the
conclusion of the special and somewhat limited
extradition proceedings."

However, his Lordship was, on that point, dissenting. Lord Reid, with whom Lord McDermott and Lord Upjohn agreed in this respect, said, at p.235, that "... examining magistrates do not come to a final decision."

25. Mr Coombs submitted that the above principles do not apply, for, he submitted, the Act is a code as to extradition and do not expressly authorise the bringing of further proceedings once extradition had been attempted and failed. Mr Coombs referred to the remarks of Brennan J. in R. v. Bolton and Anor; Ex parte Beane [1987] HCA 12; (1987) 70 ALR 225 where his Honour said at p 231:-

"The law of this country is very jealous of any
infringement of personal liberty (Cox v Hakes (1890) 15
App Cas 506 at 527) and a statute or statutory
instrument which purports to impair a right to personal
liberty is interpreted, if possible, so as to respect
that right: R v Cannon Row Police Station (Inspector)
(1921) 91 LJ (KB) 98 at 106."

Notwithstanding these considerations, the Act operates in a field in which the general principles have long been established. It would be wrong to construe the Act as giving to the decision of a magistrate under s.17 a finality which both the nature of the decision and the long history of authority on the point show it not to have.

26. It follows that the principles of res judicata or of final determination do not operate upon the decision of release given by the learned Magistrate on 27 April 1988 so as to preclude the bringing of the current extradition proceedings.

27. Nor does any principle of issue estoppel apply in this case. As was said in The Commonwealth of Australia v. Annunziata Sciacca (unreported, delivered 31 March 1988) by Bowen C.J., Sheppard and Morling JJ. at p 9:-

"A finding by an administrative tribunal will not give
rise to an issue estoppel. In W.J. & F. Barnes Pty
Limited v. Federal Commissioner of Taxation [1957] HCA 23; (1957) 96
CLR 294, Kitto J. said (p.315) that a taxation board of
review's decision was not an adjudication; it was
administrative in character and could not create an
issue estoppel."

As their Honours there pointed out, an administrative body may determine conclusively only such matters as are committed to it for final decision. The principle discussed in Port Authority of Melbourne v. Anshun Pty Ltd, cited above, whereby a final judicial decision will conclusively decide both the issues upon which the court pronounced and also other issues properly belonging to the subject of the litigation is not a principle which has application to non-judicial proceedings. As was said by Jordan C.J. in Ex parte Amalgamated Engineering Union (Australian Section): Re Jackson (1937) 38 SR (NSW) 13 at p 19:-

"Where, however, a special jurisdiction is conferred upon
a subordinate tribunal to decide some one particular
class of matter, the conferring of jurisdiction,
although it authorises the tribunal to decide any other
matters so far as may be necessary for the exercise of
the jurisdiction so conferred, is not regarded as
investing it with jurisdiction to decide those matters
between the parties conclusively and for all purposes.
Such matters are collateral to the matter as to which
jurisdiction is conferred."

28. In extradition proceedings, the magistrate is to form a view as to whether or not he is satisfied that the person is liable to be surrendered to the foreign State. If he is so satisfied, he will issue a custodial warrant. If he is not so satisfied he will order the release of the person. No matter arising for his consideration is determined conclusively.

29. Having regard to the above, I need not examine whether extradition proceedings fall within the special rules as to issue estoppel in criminal proceedings, as to which see R. v. Humphreys (1977) AC 1, and R. v. Storey & Anor [1978] HCA 39; (1978) 140 CLR 364. Nor need I discuss the extent to which estoppel will operate against a person who is performing a public or statutory duty, as to which see Chamberlain v. Deputy Commissioner of Taxation, cited above, and SCI Operations Pty Ltd & Anor v. Trade Practices Commission & Ors, cited above, at 351.

30. For these reasons, the submissions put by Mr Coombs fails. I accept the substance of the contentions put by Mr J. Spigelman Q.C. with whom Mr A. Robertson of counsel appeared for the respondent.

31. The application will therefore be dismissed with costs.