Cabal v Attorney-General

[2001] FCA 1234

FEDERAL COURT OF AUSTRALIA

Cabal v The Attorney-General [2001] FCA 1234

Extradition Act 1988 (Cth) ss 14, 27

Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135, referred to

TERESA PASINI CABAL and ORS v THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

V 150 of 2000

SPENDER, CARR, TAMBERLIN JJ
MELBOURNE
29 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 150 OF 2000

BETWEEN:	TERESA PASINI CABAL FIRST APPLICANT
ANA MARIA CABAL PASINI (Through her litigation guardian Teresa Pasini Cabal) SECOND APPLICANT
TERESA CABAL PASINI (Through her litigation guardian Teresa Pasini Cabal) THIRD APPLICANT
SOFIA CABAL PASINI (Through her litigation guardian Teresa Pasini Cabal) FOURTH APPLICANT
CARLOS CABAL PASINI (Through her litigation guardian Teresa Pasini Cabal) FIFTH APPLICANT
AND:	THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:	SPENDER, CARR, TAMBERLIN JJ
DATE OF ORDER:	29 AUGUST 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The application for leave be dismissed, with costs.

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 150 OF 2000

BETWEEN:	TERESA PASINI CABAL FIRST APPLICANT
AND:	ANA MARIA CABAL PASINI (Through her litigation guardian Teresa Pasini Cabal) SECOND APPLICANT
TERESA CABAL PASINI (Through her litigation guardian Teresa Pasini Cabal) THIRD APPLICANT
SOFIA CABAL PASINI (Through her litigation guardian Teresa Pasini Cabal) FOURTH APPLICANT
CARLOS CABAL PASINI (Through her litigation guardian Teresa Pasini Cabal) FIFTH APPLICANT
AND:	THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGE:	SPENDER, CARR, TAMBERLIN JJ
DATE:	29 AUGUST 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

SPENDER J:

1. The court has reached a unanimous view that in the circumstances as presently indicated to us, leave to appeal ought not be granted.  The reasons of each of the members of the court are not necessarily the same but we are of the unanimous view that this is a case where the court ought not to grant leave. 

2. For my part, on the material before us, to grant leave to appeal from the answers given to preliminary questions in the circumstances of the present state of the litigation, including the amendment to the application to include a claim in tort of detinue or conversion in respect of the items seized pursuant to a warrant under s14 of the Extradition Act 1988 (Cth), would be to fragment the whole judicial process. That is a matter very much to be discouraged.

3. While the procedure of preliminary questions can assist in some circumstances, the experience of this court has been that, generally speaking, the separation of a trial into various questions has not saved either time or money, but has led to the waste of time and the postponement of the resolution of the primary questions in the litigation. This is an example of those consequences. 

4. I am not to be taken as saying that there is no doubt attending the answers given to preliminary questions.  I have not had the opportunity of considering the detailed arguments in the written and oral submissions in relation to the matter.  However, as a matter of principle it seems to me that leave to appeal from answers given to preliminary questions require getting over a very high hurdle, which has not been met in this particular case. 

5. If, at the end of the day, the final decision in the litigation is adverse to the Attorney and is based on answers to the preliminary questions which the Attorney considers wrong, then there will be an opportunity to argue the correctness of the answers at that time.  To do so now, and without any assurance that the answers, whatever they should be, are going to be determinative of the issues at the end of the day is to engage in perhaps interesting and hypothetical questions, but which really are antithetical to the interests of the speedy and just resolution of the principal matters in dispute in this litigation. 

6. I would refuse leave because of that view of the fragmentation of the process and the extent to which the grant of leave would exacerbate that fragmentation.

   CARR J:  

7. This is a motion on notice by the respondent seeking a grant of leave to appeal from the judgment of Weinberg J given on 21 May this year in Melbourne. 

8. The facts of this matter, largely agreed, and the procedural background together with the relevant statutory framework are contained in the reasons for judgment of the learned primary judge. 

9. I agree generally with the reasons just given by Spender J. 

10. In my view, leave to appeal from Weinberg J's answers should be refused for the following reasons. 

11. I acknowledge that, in different circumstances, the questions answered by the primary judge are questions of general principle such that leave would normally be granted, all other things being equal.  However, this case has, in my view, characteristics which outweigh that factor.  I now turn very briefly to those. 

12. The learned primary judge's decision is, in my opinion, not attended by sufficient doubt to warrant our reconsideration at this stage of the proceedings.  First, because it is sufficiently clear, in my opinion, that the primary judge correctly applied the principles of construction explained by the High Court of Australia in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135. Secondly, if there be error, it would, in my opinion, be more appropriate in the circumstances of this particular case for the point to be decided upon appeal after a hearing. There has, since the primary judge's decision, been a major change in the proceedings in that the application has, with leave granted last Friday, been amended whereby the applicants have pleaded their claim in the alternative in detinue and conversion.

13. In my opinion, the facts relating to those claims should be found. If the respondent in his defence relies on section 14(5) of the Extradition Act, as foreshadowed by counsel, then it may be open, by way of reply, for the applicants to assert the invalidity of the warrant pursuant to which the jewellery was seized.  All this would require findings of fact on questions such as whether there were reasonable grounds for the issue of the warrant and the like.  If leave to appeal were granted, the prospects of our decision on the appeal leading to a conclusion of any further proceedings in the case seem slim.  One factor, given only as an example, is that the applicants have challenged the Constitutional validity of those provisions of the Extradition Act upon which the respondent claims to justify the retention, and proposed disposition of, the jewellery under s 27 of that Act.

14. Furthermore, there is evidence before us that Mr Cabal (the husband of the first-named applicant and father to the other applicants) is to be surrendered to Mexico within the next 51 days and that the Attorney is about to make a decision under s 27. If that decision is favourable to the applicants, it seems to me that it would be quite unnecessary for us to proceed to give our reasons in relation to the appeal. For those reasons I join in the proposed refusal of leave to appeal.

    TAMBERLIN J:  

15. I agree.  In my opinion the decision appealed from is not attended with sufficient doubt to warrant the grant of leave to appeal.  In addition it is clear that the matter will not be finally disposed of by deciding the appeal in this matter and this militates strongly against the grant of leave.  A further factor which is important is that determination of the appeal is premature having regard to future decisions and determinations which are yet to be made at different levels.  There also remain substantial issues of fact to be determined arising from the recent somewhat belated amendments to the application and for these reasons I refuse leave.

    SPENDER J:  

16. The order of the court is that the application for leave be dismissed, with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Carr and Tamberlin .

Associate:

Dated:             

Counsel for the Applicant:	Mr Gavan Griffith, QC
Solicitor for the Applicant:	Mr Clive Scott
Counsel for the Respondent:	Mr Peter Hanks, QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 August 2001
Date of Judgment:	29 August 2001