Bertran v Vanstone

Case [1999] FCA 1753

FEDERAL COURT OF AUSTRALIA

Bertran v Vanstone [1999] FCA 1753

EXTRADITION – Minister’s decision to issue notice under s 16 of the Extradition Act 1988 (Cth) – judicial review of decision – application for discovery – whether discovery should be granted

PRACTICE AND PROCEDURE – discovery – whether “fishing” – whether legitimate forensic purpose

Extradition Act 1988 (Cth), s 16
Judiciary Act 1903 (Cth), s 39B

Federal Court Rules, O 15, rr 2, 5 and 8

Pasini v Vanstone [1999] FCA 1271 referred
Mulley v Manifold (1959) 103 CLR 341 cited
Commonwealth v Northern Land Council (1993) 176 CLR 604 cited
Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426 followed
Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511 cited
Treasurer of the Commonwealth of Australia v CanWest Global Communications Corp [1997] FCA 578 applied
Australian Securities Commission v Somerville (1995) 51 FCR 38 applied
WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 referred
Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450 referred
Caltex Refining Co Pty Ltd v AMWU (unreported, Full Court of the Federal Court, 6 December 1990) applied
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 referred
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 referred
Commonwealth of Australia vNorthern Land Council (1991) 30 FCR 1 cited

MARCO PASINI BERTRAN v HON. AMANDA VANSTONE & ORS
V 120 of 1999

CARLOS CABAL PENICHE v HON. AMANDA VANSTONE & ORS
V 121 of 1999

CARLOS CABAL PENICHE v HON. AMANDA VANSTONE & ORS
V 222 of 1999

KENNY J

MELBOURNE
15 DECEMBER 1999


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 120 OF 1999
V 121 OF 1999
V 222 OF 1999

V 120 of 1999:

BETWEEN:

MARCO PASINI BERTRAN
Applicant

AND:

HON. AMANDA VANSTONE
First Respondent

DAVID McDONNELL
Second Respondent

BRIAN BARROW M
Third Respondent

LISA HANNAN M
Fourth Respondent

V 121 of 1999:

BETWEEN:

CARLOS CABAL PENICHE
Applicant

AND:

HON. AMANDA VANSTONE
First Respondent

DAVID McDONNELL
Second Respondent

BARRY BRAUN M
Third Respondent

LISA HANNAN M
Fourth Respondent

V 222 of 1999:

BETWEEN:

CARLOS CABAL PENICHE
Applicant

AND:

HON. AMANDA VANSTONE
First Respondent

DAVID McDONNELL
Second Respondent

BARRY BRAUN M
Third Respondent

LISA HANNAN M
Fourth Respondent

JUDGE:

KENNY J

DATE:

15 DECEMBER 1999

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

the current application

  1. This is an application, in each proceeding, by way of notice of motion dated 5 October 1999, for an order for discovery pursuant to O 15 of the Federal Court Rules (“the Rules”).  The motion in each proceeding is supported by an affidavit of Peter McGregor Seidel sworn on 5 October 1999.  At the hearing the applicants stated that they also relied upon the following:  court exhibit A1, court exhibit A2, court exhibit A3, an affidavit of Steven Anthony Marshall sworn on 4 August 1999; affidavits of George Defteros sworn on 19 March 1999 in proceeding V 120…

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AGLC
Bertran v Vanstone [1999] FCA 1753
Case
[1999] FCA 1753
Decision Date

CaseChat Overview and Summary

The case of Bertran v Vanstone involves a dispute between the applicants and the Attorney-General, seeking documents from officers of the Attorney-General’s Department related to recommendations made under section 16 of the Extradition Act 1988. The applicants challenge the validity of notices issued by the Attorney-General for the extradition of the applicants to Mexico. The case was heard in the Federal Court of Australia. The legal issues before the court included whether the notices were issued in error, whether there was a breach of procedural fairness, and whether the extradition requests from Mexico were valid. The applicants argued that the notices were based on incorrect assumptions and were issued without observing procedural fairness. They also claimed that the extradition requests were invalid due to undisclosed Amparo stays and expired limitation periods.

The court examined the statutory framework and the specific circumstances of each case. It noted the applicants' arguments that the notices were invalid because they were based on the mistaken belief that the applicants were "extraditable persons" and that the Attorney-General had failed to observe procedural fairness. Additionally, the applicants argued that the extradition requests were invalid due to Mexico's failure to disclose certain information and the expiration of limitation periods. The court also considered the timeliness of the notices issued under section 16 of the Act. In its reasoning, the court acknowledged the complexity of the case, which involved multiple grounds of review that often overlapped. It highlighted the importance of ensuring that the processes and decisions in extradition matters adhere to legal and procedural standards.

The court concluded that the applicants had grounds to challenge the validity of the notices and the extradition requests. It found that the failure to disclose critical information and the procedural errors in issuing the notices were significant. The court also determined that the applicants' arguments regarding the limitation periods and the Amparo stays warranted further investigation. As a result, the court granted the applicants' applications for judicial review, paving the way for a more detailed examination of the merits of their claims. This decision allowed the applicants to seek the production of the relevant documents and to challenge the decisions on a broader scale in subsequent proceedings.

Orders

Orders of the court

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Background

Background to the litigation

The documents sought in each proceeding are those in the possession, custody or power of certain officers of the Attorney-General’s Department (“the Department”) relevant to their recommendations to the first respondent, that she give notices under s 16 of the Extradition Act 1988 (Cth) (“the Act”) in relation to the applicants. background The circumstances in which these proceedings have been instituted are set out in my reasons for judgment in Peniche v Vanstone [1999] FCA 916. It is not necessary to set them out again. I also set out the statutory scheme in those reasons, and I do not set it out again.the section 39B applications In my reasons for judgment in Peniche v Vanstone, at pars 14 and 15, I set out the case which the applicants at that stage proposed to make. I stated as follows:In all three matters, the applicants challenge the validity of a notice issued by the first respondent under s 16 of the Act. The notice under challenge in V 120 of 1999 is the Pasini notice dated 21 January 1999. The notice under challenge in V 121 of 1999 is the first Cabal notice dated 7 January 1999. The notice under challenge in V 122 of 1999 is the second Cabal notice dated 30 March 1999. In the case to be put by the applicants at the final hearing of these applications, it is to be contended as follows. (1)All the notices issued under s 16 are invalid because (a) they are based on the erroneous opinion that each of the applicants is an “extraditable person”, and (b) they were issued in breach of the duty of the Attorney-General to observe the requirements of procedural fairness. (2)The extradition requests made by Mexico in respect of the applicants are invalid on account of Mexico’s failure to disclose (a) the Amparo stays, and (b) that limitation periods for most of the alleged offences have expired. (3)The second extradition request made by Mexico in respect of Mr Cabal is invalid because it was made at a time when the first extradition request by Mexico in respect of Mr Cabal was still on foot.(4)The first Cabal notice issued under s 16 is invalid because it was not given within the forty-five day period required by s 17(2) of the Act. (At this interlocutory stage, the applicants made no, or virtually no, submissions on this matter.)Since delivering those reasons, the applications, which are made under s 39B of the Judiciary Act 1903 (Cth), have undergone amendment. There are now a number of alleged grounds of review, including (1) the non-disclosure of the Amparo stays by Mexico; (2) denial of natural justice; (3) the failure to have regard to relevant considerations (namely, the Amparo stays and the time-bar on the proposed prosecutions); and (4) unreasonableness (as to the exercise of the s 16(1) discretion, the formation of the opinion as to “extraditable person” and as to “extradition objection”). As Finn J noted in Pasini v Vanstone [1999] FCA 1271, par 20:As is becoming characteristic of judicial review applications – and lamentably so in my view – a considerable number of grounds of review have been advanced with often the same alleged vice being repackaged so as to enliven first one and then another of those various grounds. By way of illustration, at the core of many of the grounds relied on is the assertion that the applicant was not an “extraditable person” because of the effect of the Amparo stays referred to in [Peniche v Vanstone [1999] FCA 916].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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