FEDERAL COURT OF AUSTRALIA
Mentink v Minister for Justice [2016] FCA 432
ORDERS
QUD 990 of 2015 BETWEEN: WILFRED JAN REINIER MENTINK
Applicant
AND: MINISTER FOR JUSTICE
Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
29 APRIL 2016
THE COURT ORDERS THAT:
1.The application for leave to appeal be dealt with without an oral hearing.
2.The application for leave to appeal is dismissed.
3.The applicant pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
This is an application for leave to appeal against a judgment of Edelman J delivered on 13 October 2015 dismissing the applicant’s application for discovery of particular documents and categories of documents.
The applicant has applied under r 35.18(1) of the Federal Court Rules 2011 (Cth) for…
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Details
- Case
- [2016] FCA 432
- Decision Date
CaseChat Overview and Summary
The applicant, Mentink, sought judicial review of the Minister for Justice's decision not to take further action on his allegations of corruption involving the Australian Federal Police. The Federal Court considered an application for leave to appeal the dismissal of Mentink's substantive application for judicial review. The court had to determine whether there was sufficient doubt about the correctness of the primary judge's decision to warrant an appeal.
The legal issues revolved around whether the primary judge's decision was attended by sufficient doubt to warrant an appeal, and whether the applicant had demonstrated a substantial injustice if leave to appeal were not granted. The court had to examine the correctness of the primary judge's findings and the strength of the arguments presented by Mentink. The court also considered the public interest in finality of decisions and the potential for an appeal to unnecessarily prolong the legal process.
The court found that the primary judge's reasons were comprehensive and well-reasoned, and the arguments advanced by Mentink did not demonstrate sufficient doubt about the correctness of the primary judge's decision. The court concluded that there was no substantial injustice in dismissing the application for leave to appeal. Accordingly, the court dismissed the application for leave to appeal and ordered Mentink to pay the respondent's costs of the application.
The legal issues revolved around whether the primary judge's decision was attended by sufficient doubt to warrant an appeal, and whether the applicant had demonstrated a substantial injustice if leave to appeal were not granted. The court had to examine the correctness of the primary judge's findings and the strength of the arguments presented by Mentink. The court also considered the public interest in finality of decisions and the potential for an appeal to unnecessarily prolong the legal process.
The court found that the primary judge's reasons were comprehensive and well-reasoned, and the arguments advanced by Mentink did not demonstrate sufficient doubt about the correctness of the primary judge's decision. The court concluded that there was no substantial injustice in dismissing the application for leave to appeal. Accordingly, the court dismissed the application for leave to appeal and ordered Mentink to pay the respondent's costs of the application.
Orders
Orders of the court
1. The application for leave to appeal be dealt with without an oral hearing.
2. The application for leave to appeal is dismissed.
3. The applicant pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow, the application for leave to appeal will be dismissed with costs.Background The applicant’s substantive application seeks judicial review of the respondent’s decision made on 30 September 2014 under s 156(2)(c) of the Law Enforcement Integrity Commissioner Act 2006 (Cth) (“LEIC Act”) to take no further action in relation to allegations of corruption made by the applicant. The applicant alleges that the Australian Federal Police (“AFP”) engaged in corrupt conduct, including falsely arresting him, blocking his travel to several countries and allowing his yacht to be stolen. The applicant also alleges that the investigation into his allegations of corruption by the Australian Commission for Law Enforcement Integrity (“ACLEI”) was deficient. In his application for judicial review, the applicant alleges that the Minister:(a)improperly exercised his power;(b)failed to take relevant considerations into account;(c)breached the rules of natural justice;(d)made an error of law;(e)misconstrued the relevant statute in a way that led the Minister to misconceive the extent of his powers;(f)entertained a matter that lay outside the limits of his powers;(g)unreasonably exercised his power;(h)was biased and had a conflict of interest; and(i)made the decision in bad faith and that the decision was affected by fraud. The Minister had regard to the following documents in making his decision:·The applicant’s June 2014 submissions made to the Attorney-General’s Department; ·The applicant’s letter to Senator Brett Mason, dated 19 March 2012, and its enclosures;·The applicant’s letter to the former Minister for Home Affairs and Justice, dated 12 May 2012, and its enclosures;·The applicant’s letter to the former Minister for Home Affairs and Justice, dated 16 November 2012;·The applicant’s affidavit and annexures, dated 5 March 2014, in the Federal Court proceedings and his submissions;·The ACLEI report;·The applicant’s response to the ACLEI report; and·Documents released to the applicant by the Attorney-General’s Department under the Freedom of Information Act 1982 (Cth) on 3 February 2014.Application for discovery On 18 November 2014, the applicant made an application for discovery of the following documents or categories of documents: (1)transcript dated 9 July 2010 and prepared from a compact disc in 2013 by the ACLEI, being a record of dialogue involving the then ACLEI Director of Investigations Peter Bache and another believed to be Mark Walters, and the files stored on the compact disc;(2)transcript dated 10 November 2010 and prepared from a compact disc in 2013 by the ACLEI, being a record of dialogue involving the then ACLEI Director of Investigations Peter Bache and another believed to be Jeffrey Caldwell in the presence of a second ACLEI officer, and the files stored on the compact disc;(3)AFP “case note” dated 5 June 2003 and described as “Log No. 2” a redacted copy of which is annexed to the applicant’s 18 November 2014 affidavit at page 10 in support of this application for discovery;(4)the documents described as folios 1 to 50 in an AFP decision under the Freedom of Information Act 1982 (Cth) dated 31 October 2011 given the AFP reference “CRM 2011/71”, being various communications involving the AFP and foreign law enforcement agencies in particular the Indonesian National Police (INP) namely:(a)the following annexures to the applicant’s 5 March 2014 affidavit annexed to his affidavit filed in this matter on 28 November 2014, being redacted copies of AFP “Overseas Liaison Communications” to which full access is sought:(i) WM46 dated 5 March 2007;(ii) WM47 dated 18 and 30 April 2007;(iii) WM48 dated 29 August 2007;(iv) WM49 dated 3 September 2007; (v) WM50 dated 25 September 2007;(vi) WM51 dated 28 September 2007;(vii) WM52 dated 10 March 2009(b)the following documents to which no freedom of information access was given, as best fits the description:(i)14 February 2007 (6 pages) AFP letter regarding the applicant/Larus II to INP;(ii)21 February 2007 (4 pages) AFP letter regarding the applicant/Larus II to INP;(iii)23 February 2007 (7 pages) AFP letter regarding the applicant/Larus II to INP;(iv) 3 April 2007 (3 pages) INP letter and translation to AFP;(v)1 May 2007 (4 pages) AFP letter regarding the applicant/Larus II to INP;(vi)31 August 2007 (2 pages) AFP letter regarding the applicant/Larus II to INP;(vii)10 September 2007 (2 pages) AFP letter regarding the applicant/Larus II to INP; and(viii)8 November 2007 (6 pages) INP letter and translation to AFP.(5)The letter from “F/A Byrnes” to Mr Bache dated 16 July 2010, a redacted copy of which is annexed to the applicant’s 18 November 2014 affidavit at page 12 in support of this application for discovery.(6)The category of documents confined to the description “AFP records pertaining to any referral of the applicant’s allegation of theft of the vessel Larus II to the Indonesian National Police”, such referral having being asserted by F/A Byrnes in the letter described in (5) above. (7)The category of documents comprising advices and correspondence such as letters and emails relating to the notifications of ACLEI corruption issues by the Integrity Commissioner to the Minister on 9 March 2013 and 4 June 2013 and the Minister’s decision communicated on 7 January 2014 that are annexed as WJM94, WJM98, and WJM99 respectively to the applicant’s affidavit filed in this matter on 8 December 2014.
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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