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Bertran v Vanstone

Bertran v Vanstone

Case [1999] FCA 1427 18 October 1999

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FEDERAL COURT OF AUSTRALIA
Bertran v Vanstone [1999] FCA 1427
PROCEDURE – whether leave to amend application should be granted – whether separate questions should be heard and determined before trial.
Extradition Act 1988 (Cth) ss 6, 12, 16, 17, 22
Federal Court of Australia Act 1976 (Cth) s 21
Federal Court Rules O 11 r 7, O 13 r 2, O 29 r 2
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 referred
Telstra Corporation Ltd v Australian Telecommunications Authority (1995) 133 ALR 417 referred
Eshelby v Federated European Bank Ltd (1932) 1 KB 254 cited
Shields v Australian and New Zealand Banking Group (unreported, Federal Court of Australia, 15 August 1995) referred
Pollack v Retravision (NSW) Limited (unreported, Federal Court of Australia, 17 September 1996) referred
Reading Australia Pty Ltd v Australian Mutual Provident Society & Anor [1999] FCA 718 applied
Arnold v Attorney-General for Victoria [1995] FCA 727 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
18 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

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

JUDGE:

KENNY J

DATE OF ORDER:

18 OCTOBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.   The applicant be granted leave to amend his application in proceeding No. V 120 of 1999, in accordance with Schedule 1 annexed to the notice of motion dated 5 October 1999.
2.   The application for the determination of questions separately from any other question before any trial in the proceeding be dismissed.
3.   The costs of the notice of motion dated 5 October 1999 as revised by the notice dated 13 October 1999 (up to and including today) be reserved.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

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

JUDGE:

KENNY J

DATE OF ORDER:

18 OCTOBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.   The applicant be granted leave to amend his application in proceeding No. V 121 of 1999 in accordance with Schedule 2 annexed to the notice of motion dated 5 October 1999.
2.   The application for the determination of questions separately from any other question before any trial in the proceeding be dismissed.
3.   The costs of the notice of motion dated 5 October 1999 as revised by the notice dated 13 October 1999 (up to and including today) be reserved.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bertran v Vanstone

Details

AGLC: Bertran v Vanstone [1999] FCA 1427
Case: [1999] FCA 1427
Decision Date: 18 OCTOBER 1999

CaseChat Overview and Summary

In the case of Bertran v Vanstone, the applicant sought leave to amend his application in three separate proceedings. The applicant aimed to amend his applications in accordance with schedules annexed to notices of motion dated 5 October 1999 and revised on 13 October 1999. The applicant also sought a determination of certain questions separately from any other question before any trial in the proceedings.

The legal issues before the court involved whether the applicant should be granted leave to amend his applications and whether the questions should be determined separately from any other questions before trial. The court needed to balance the interests of justice with the need for procedural fairness and the efficient use of court resources.

The court determined that the applicant should be granted leave to amend his applications in each proceeding, as outlined in the respective schedules annexed to the notices of motion. However, the court dismissed the application for the determination of questions separately from any other question before any trial. The court considered that the issues could be addressed more efficiently and justly during the trial. The costs of the notices of motion were reserved up to and including the date of the decision.

The final orders of the court were to grant the applicant leave to amend his applications in accordance with the specified schedules in each proceeding, to dismiss the application for the determination of questions separately from any other question before any trial, and to reserve the costs of the notices of motion up to the date of the decision.

Orders

Orders of the court

1. The applicant be granted leave to amend his application in proceeding No. V 120 of 1999, in accordance with Schedule 1 annexed to the notice of motion dated 5 October 1999.

2. The application for the determination of questions separately from any other question before any trial in the proceeding be dismissed.

3. The costs of the notice of motion dated 5 October 1999 as revised by the notice dated 13 October 1999 (up to and including today) be reserved.

1. The applicant be granted leave to amend his application in proceeding No. V 121 of 1999 in accordance with Schedule 2 annexed to the notice of motion dated 5 October 1999.

2. The application for the determination of questions separately from any other question before any trial in the proceeding be dismissed.

3. The costs of the notice of motion dated 5 October 1999 as revised by the notice dated 13 October 1999 (up to and including today) be reserved.

1. The applicant be granted leave to amend his application in proceeding No. V 222 of 1999 in accordance with Schedule 3 of the notice of motion dated 5 October as revised by notice dated 13 October 1999.

2. The application for the determination of questions separately from any other question before any trial in the proceeding be dismissed.

3. The costs of the notice of motion dated 5 October 1999 as revised by the notice dated 13 October 1999 (up to and including today) be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Bertran v Vanstone [1999] FCA 1427

Most Recent Citation

Cabal v Attorney-General of the Commonwealth [2001] FCA 583

Cases citing this decision · 1 of 1 shown

Cabal v Attorney-General of the Commonwealth
[2001] FCA 583 Para 3

…e principles enunciated by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718. See also Bertran v Vanstone [1999] FCA 1427 per Kenny J. I also gave directions for the preparation of a statement of agreed facts.…

View all 1 citing cases →

Cases cited in this decision · 9 of 9 shown

Reading Australia Pty Ltd v Australian Mutual Provident Society
[1999] FCA 718 Para 18

…all issues of fact and law in a proceeding at the one time following trial. In Reading Australia Pty Ltd v Australian Mutual Provident Society & Anor [1999] FCA 718, Branson J summarised the principles that govern the making of an order under Order 29 rule 2 as follows: (a) The term “question” in O 29 r 1 include…
Bass v Permanent Trustee Co Ltd
[1999] HCA 9 Para 18

…and established or agreed facts for the purpose of quelling a controversy between the parties ( Bass v Permanent Trustee Co Ltd [1999] HCA 9 at para 45); (d) Where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that…
GMB Research & Development Pty Ltd v Commonwealth
[1997] FCA 934 Para 18

…of the preliminary question and at the time of trial ( GMB Research and Development Pty Ltd v The Commonwealth [1997] FCA 934); (ii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial – possibly involving the calling of the same witnesses at both stage…
Telstra Corporation Ltd v Australian Telecommunications Authority
[1995] FCA 998 Para 10

…a relevant offence is an “extradition offence” raise justiciable issues: cf Telstra Corporation Ltd v Australian Telecommunications Authority (1995) 133 ALR 417 at 426-7.…
Arnold v Attorney-General for Victoria
[1995] FCA 727 Para 18

…proceeding ( GMB Research and Development Pty Ltd v The Commonwealth ; Arnold v Attorney-General for Victoria [1995] FCA 727). This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the pr…
Ainsworth v Criminal Justice Commission
[1992] HCA 10 Para 7

…The principles governing the grant of a declaration are set out in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 where the majority of the High Court (Mason CJ, Dawson, Toohey, Gaudron JJ) said at 581-582: It is now accepted that superior courts have inherent power to grant declaratory relief. It is a di…
Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd
[1985] FCA 476 Para 18

…isposal of the action; or (ii) contribute to the settlement of the litigation ( CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 per Kirby P at 607); (g) Factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may – (i) give rise to significant cont…
[1970] AC 179
[1970] AC 179 Para 18

…facts or as facts to be judicially determined ( Jacobson v Ross [1995] 1 VR 337 at 341, referring to Nissan v Attorney-General [1970] AC 179 at 242-243 per Lord Pearson; Bass v Perpetual Trustee at para 53); (e) Care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of…
Eshelby v Federated European Bank Ltd
(1932) 1 KB 254

…inal Justice Commission (1992) 175 CLR 564 referred Telstra Corporation Ltd v Australian Telecommunications Authority (1995) 133 ALR 417 referred Eshelby v Federated European Bank Ltd (1932) 1 KB 254 cited Shields v Australian and New Zealand Banking Group (unreported, Federal Court of Australia, 15 August 1995) referred Pollack v Retravision…

Legislation cited in this decision · 2

Extradition Act 1988 (Cth)
12, 16, 17, 22, 6 6 mentions (from Para 3)
Federal Court of Australia Act 1976 (Cth)
21 2 mentions (from Para 10)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	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
JUDGE:	KENNY J
DATE OF ORDER:	18 OCTOBER 1999
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	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
JUDGE:	KENNY J
DATE OF ORDER:	18 OCTOBER 1999
WHERE MADE:	MELBOURNE