Pasini v United Mexican States

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M39 of 2001

B e t w e e n -
MARCO PASINI (BERTRAN)
Applicant
and
UNITED MEXICAN STATES
First Respondent
LISA HANNAN M
Second Respondent
ATTORNEY-GENERAL OF THE COMMONWEALTH
Third Respondent
Application for special leave to appeal

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 SEPTEMBER 2001 AT 11.45 AM

__________________

MR G. GRIFFITH, QC: If the Court pleases, I appear with my learned friend, MR G.R. KENNETT, for the applicant. (instructed by Fernandez Canda Gerkens)

MR G.A.A. NETTLE, QC: May it please the Court, I appear with my learned friend, MS M.M. GORDON, for the first respondent. (instructed by the Director of Public Prosecutions (Commonwealth))

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: May it please the Court, I appear with my learned friends, MR H.C. BURMESTER, QC, and MR M.K. MOSHINSKY, for the Attorney‑General intervening. (instructed by the Australian Government Solicitor)

GLEESON CJ: There is a certificate from the Deputy Registrar to the effect that she has been informed by the Deputy Chief Magistrate, on behalf of Magistrate Hannan, the second respondent in this matter, that the second respondent will abide by the order of the Court. Yes, Dr Griffith.

MR GRIFFITH: Your Honour, there is a notice of motion dated 30 May, with respect, to bail. May I explain that at the conclusion of the oral hearing? Your Honour, would it be convenient to the Court if we seek to complete this matter today?

GLEESON CJ: We will sit until 1.00 and resume at 2.00.

MR GRIFFITH: Yes, your Honour. On that basis, I particularly take our written submissions as read, and speak to them - and rather than enlarge on any point, your Honour, take it that they are before the Court. Your Honours, there are two particular issues. The first is the substantive Chapter III issue – they are both Chapter III issues – but the issue is whether section 21 of the Act is invalid as conferring non-judicial power on federal or State courts. May I take it that the Court is familiar with the structure of the Act? The second contention, your Honour - this is a narrower matter ‑ is that ‑ ‑ ‑

KIRBY J: Do you have any other questions?

MR GRIFFITH: I am sorry, your Honour. I should say I assume, but that is perhaps assuming the answer. The other issue is the particular one whether section 21(6)(d) of the Act, properly construed, does not prevent evidence being called to protect what we would submit is the integrity of the proceedings in the Federal Court, both in first instance and on appeal. So that really is a construction issue to say that if it appears to prevent evidence given to protect, we say, the implied or the inherent jurisdiction of the court, it should be read down and construed not to exclude such evidence.

If properly construed it does exclude such evidence, our alternative submission would be that it would be invalid to the extent that the evidence which we sought to call with respect to the circumstances going to, as we put it, the integrity of the proceedings taken, not merely before the magistrate but before Justice French at first instance and on appeal, should have been omitted.

GAUDRON J: I do not understand the “integrity of the proceedings”.

MR GRIFFITH: It is an expression which now has the sanction of Justice Arbour in the Supreme Court of Canada.

GAUDRON J: That is perhaps why I do not understand it.

MR GRIFFITH: In a non‑Charter case, your Honour, describing issues going to protect the court from what might be called abuse of proceedings or for want of bona fides or good faith in the face of the court. Can I get to that matter in series when I have dealt with the general aspect of the argument that it is beyond judicial power?

Your Honours have our outline with respect to this issue and, your Honours, could I indicate that we do adopt it as exposing at length our submissions with respect to what might be termed at some times as the chameleon cases and our position in the court is that it is not the case firstly, that it generally may be said that a power may take the colour from the body in which it is vested so that when one has a power which might be characterised as administrative, the fact that it is vested in a court, it should be for that reason characterised as judicial and the obverse, we say.

Your Honours, our position is that it is the nature of the power that drives the characterisation, not the body in which it is vested. In other words, we say ‑ ‑ ‑

KIRBY J: That runs into quite a lot of authority though, does it not, which says you have regard to the body in which it is vested.

MR GRIFFITH: Your Honour, we accept that you have regard to it and we say that that does not drive the characterisation. It may be a matter relevant to the construction, but we say it is the character of the power which determines whether it may be conferred on a court, and we say the character of that power cannot be determined by the fact it is conferred on the court and, your Honours, we say that there is not particular authority against us other than Aston v Irvine, which is now a very dated case and certainly a case determined before the elucidation of Chapter III as it has been over recent decades in this Court; and secondly, we can see that the Bayer Case could be constructed as having some statements which would seem to accept the possibility of a dual characterisation.

McHUGH J: But if you are going to overturn the doctrine that it is the repository rather than the nature of the power which is one of the criteria for determining judicial power, you are going to have to overrule quite a number of cases, are you not?

MR GRIFFITH: With respect, no, your Honour.

McHUGH J: Take that case – I think the name of it is White - about penalties by the Public Service Board on public servants. Now, that was held to be not an exercise of the judicial power of the Commonwealth but that was because of the nature of the body in which the powers was reposed.

MR GRACE: Your Honour, we do not wish to range as far a White in making our submissions in this matter, but what we say is that your Honour’s remarks in Gould are apposite, that we should interpret what is truly the aspect of definition of Chapter III requirements that only judicial power may be vested in a court and what is incidental to that and if the Constitution mandates the expression of principle different from how it might be regarded as embraced, for example, by Aston v Irvine, then we say the Court has a duty to express that and the consequences follow.

It is not necessary, your Honours, we say for the Court to consider, as for example we did in Cole v Whitfield which of the vast number of the Court’s cases might be revisited by having regard to the expression of the correct approach. We say the issue before the Court now is to consider whether or not it is appropriate, for example, to express general statements such as Sir Anthony Mason in Reg v Hegarty; Ex parte City of Salisbury dealing with the case of taking colour to revisit such statements in the context of what here we say is an obviously administrative power where we say the Court exercises exactly the same function in an administrative context, as does the Magistrate, and ‑ ‑ ‑

KIRBY J: I can see what you say here but why is it obviously administrative to determine whether a person is eligible on stated criteria? I can understand your criticism of a dichotomy between what the Court said in Kainhofer and the nature of the power but I am still not entirely clearly why it is administrative.

MR GRIFFITH: Well, your Honour, this is the one issue where the parties are enthusiastically in agreement that the Magistrate is regarded as exercising his power persona designata. That, in effect, is our given although we are happy to engage ‑ ‑ ‑

KIRBY J: It is really just asking – under the Act the final decision is a political decision or a decision made by the Attorney‑General, the Minister.

MR GRIFFITH: And in no way bound by any finding as to whether or not there is an extradition offence which may be made by the Magistrate or the court.

KIRBY J: He or she might exercise some notions of mercy or be concerned about a situation which has arisen in the country or the links with the Australian community, I do not know what consideration, but the final decision is there for the Attorney or the Minister. But why is it not of the nature of the judicial powers that you have a law, you have a norm and you are applying it to ask whether this person is, by the criteria of the Act, eligible? That seems to be purely judicial.

MR GRIFFITH: Well, your Honour, we say it is part of an administrative process equivalent to the issuing of, say, a search warrant.

KIRBY J: But is that because of the Attorney’s let‑out at the end, that he may or may not follow what the Court has done?

MR GRIFFITH: The fact, we would say, your Honour, it is his function, that it is not merely the let-out under section 22(3)(f) which gives a general discretion. There is also the other matters, your Honour, that the Attorney‑General has to be satisfied that there is not extradition objection in relation to the offence. Now, that, your Honour, takes me to a point, we say, of peculiar definition as to the function of both the Magistrate and the court and that is in section 19(2) dealing with the matters to be found by the Magistrate. Paragraph (d) is in different terms from the requirement of the Attorney‑General with respect to an extradition objection under section 22(3)(a). In 22(3)(a) the Attorney‑General has to be:

satisfied that there is no extradition objection in relation to the offence –

and that satisfaction can be a matter of administrative review under the terms of the ADJR Act. With respect to the function of the Magistrate, there is no such determination. The requirement is that if the person does not satisfy the Magistrate, there are substantial grounds for believing that there is an extradition objection in relation to the offence. We say that expression of requirement to indicate whether or not the Magistrate regards there as being substantial grounds is not a vesting of an issue to be determined by the Magistrate which is consistent with the expression of the vesting of judicial power.

It is not a question of saying there is a level of proof on the balance of probabilities beyond reasonable doubt. It may well be section 22(3)(a) expresses a requirement on the balance of probabilities the Attorney‑General is satisfied that there is no extradition objection in relation to the offence. Presumably, it is for the person challenging the extradition on the grounds of an assertion that there is no extradition objection to satisfy the Attorney. That much we accept.

Your Honours, our submission is that the expression in section 19(2)(d) which applies indiscriminately and in the same terms both before the Magistrate and on review by a primary judge or on appeal to the Full Court, is really a requirement for an indication that the body deciding it determines that that body is not satisfied that there are substantial grounds for believing that there is an extradition objection in relation to the offence. That may well suffice from the point of view of an administrative step leading to the Magistrate certifying so that the matter can go on to the Attorney‑General on the basis that the person is an eligible person.

We submit it does not make any finding which, at the level of the Magistrate, could be regarded as an exercise of judicial power. We say it is alien to it. We say, your Honours, in the circumstances that section 21 requires the Federal Court to express the same determination as the Magistrate, indeed, either quash the order or confirm the order under section 21(2)(b), and if there are cases where the Magistrate’s decision is overturned, to order a warrant in the statutory form by direction to the Magistrate to be issued, we submit, your Honour, that such power exercised on the basis that the court disagrees with the Magistrate’s view that the person does not satisfy the court that there are substantial grounds for believing that there is an extradition objection in relation to the offence, could not, on any view, be regarded as an exercise of judicial power. We say that it is never a judicial function for a court, in effect, to certify that it believes there are substantial grounds.

KIRBY J: I know there is furious agreement about this, but if you ask, “How does one decide whether the person satisfies the criterion that is set out in the statute?”, do you not just go through and tick off one by one the criterion. That is a normative exercise which is classically judicial in character.

MR GRIFFITH: Your Honour, when you go to the definition of “extradition objection” in section 7, it deals with issues successively of “political offence”, “political opinions” and “political opinions”.

KIRBY J: Yes, but they are defined.

MR GRIFFITH: Your Honour, they are defined, but they are a matter, we say, that of their nature are not issues where a court is equipped or able to exercise judicial power to determine. Indeed, your Honours, the judgment of both Justice French, at first instance, and in the Full Court, confirm the fact that the court itself was disclaiming that it felt not well equipped to deal with these issues of political judgment. We say they indicate, apart from the issue of review, a basic administrative function and scheme whereby there is an administrative process engaged with the employment of a Court as a persona designate to determine issues when an extradition objection is raised as an administrative matter and inherently an administrative matter and one which has been determined and regarded hitherto as an administrative matter. We say of their nature they are of a character which are unsuited for vesting as a matter of judicial power in a court.

GAUDRON J: Is not the real question here the nature of the proceedings in the Federal Court?

MR GRIFFITH: We agree, your Honour, and we have sought to deal with that directly.

GAUDRON J: Well, you have asserted that they are the same as before the Magistrate ‑ ‑ ‑

MR GRIFFITH: The same in function and result.

GAUDRON J: Well, the proceedings; do you assert that the proceedings are in the same as in a Magistrate Court.

MR GRIFFITH: The only difference, your Honour, is that there is a prohibition because of the operation of section 6(d) that I mentioned, your Honour, needing new evidence.

GAUDRON J: Well that really comes to the nature of the proceedings; it is described as a review, it is said you can only have regard to the evidence before the Magistrate. Are you suggesting of the whole de novo consideration?

MR GRIFFITH: Your Honour, it is a complete re-hearing on the basis of the same evidence.

GAUDRON J: Where does that emerge?

MR GRIFFITH: Your Honour, that emerges from the function of the court by definition of section 21. What it does, your Honour, is to do exactly what the Magistrate does again. Assuming the Magistrate does not find, for example, that a person is an eligible person because he finds that he is satisfied there are substantial grounds for believing there was an extradition objection. If that happens, United Mexican States here are able to call for a review before the judge, the same evidence is before the court as before the Magistrate and the court engages in exactly the same process as the Magistrate to review that evidence, to hear submissions and to determine whether the court regards it being the case that there are substantial grounds for believing that there is an extradition objection. We say, your Honour, that is purely in its characterisation an administrative review and the Court does not, if it decides to ‑ ‑ ‑

GAUDRON J: If we look at the powers, the powers of the court are really only to confirm or quash.

MR GRIFFITH: Your Honour, they have a power to direct the Magistrate to issue a warrant in the statutory form. The warrant itself is clearly an administrative warrant of the sort that would require to be issued by a non‑judicial person and, your Honours, the effect of section 21(2)(b)(ii) is not that the matter is remitted to the Magistrate for the Magistrate to act according to law. It gives a power to direct the Magistrate to issue the warrant. There is no power to remit. It is a power for the court just to direct the Magistrate to do something at the direction of the court.

GAUDRON J: I do not want to be difficult ‑ ‑ ‑

MR GRIFFITH: Your Honour never is.

GAUDRON J: ‑ ‑ ‑ but I seem to be missing subsection (9) and subsection (10) of section 19. Do you have those?

MR GRIFFITH: I am sorry about that, your Honour. I have a print of the Act that has it, page 18 of my print, but does your Honour have a download?

GAUDRON J: Yes, thank you.

MR GRIFFITH: Your Honour, subsection (9) does refer to the:

warrant in the statutory form, order that the person be committed to prison to await surrender –

We say that is a function of a ‑ ‑ ‑

GAUDRON J: Well, may I take it that that would only issue if bail had been granted or if it were a review by the extradition country?

MR GRIFFITH: Or if the Magistrate determined that the person was not an eligible person and the United States of Mexico appealed. The appeal can be by either side, your Honour.

GAUDRON J: Yes.

MR GRIFFITH: So the determination by the Magistrate, we say, can be reviewed de novo either way.

GAUDRON J: You keep saying “de novo” but that is just what I do not get out of this.

MR GRIFFITH: Your Honour, I express it another way. They do exactly the same thing that the Magistrate does with the only difference being that it is on the evidence that was before the Magistrate because of the prohibitions of that.

GAUDRON J: Again, you keep saying that but I am wondering why that is so. Why would one not be looking at the end of the day to see if there is error in what the Magistrate has done and, if there is not, simply confirm the order of the Magistrate? If there is, quash the order and do whatever is required under (2)(b).

MR GRIFFITH: Your Honour, what we say is that it is plain from the judgment of Justice French, and as it was reviewed by the Full Court, that Justice French regarded the matter for him to determine, and not to be inhibited by any deference to the fact that there was a matter of review whereby he should defer to any findings of the Magistrate as to either fact or as to consequence.

GAUDRON J: I would have thought where it says “review”, and the orders are limited in the way that they are by 21(2), that the Federal Court was not at large.

MR GRIFFITH: Well, in that case, your Honour, perhaps I should amend my grounds of appeal to say that the Federal Court fell into error at each level by it not having regard to the Magistrate. I will not do that, your Honour, but we say ‑ ‑ ‑

GAUDRON J: I think we had better deal with – I mean, at least in circumstances in which you are seeking a declaration of invalidity, I would have thought we needed to know the true meaning and effect of 21.

MR GRIFFITH: Your Honour, we say the true meaning and effect of section 21 is that the matter comes before the court with the same evidence before the Magistrate, and then the decision of the Magistrate stands at nought, so far as a review process is concerned. It is necessary for the court itself to be satisfied, and not by way of an administrative review inquiry, as to each of the matters under subsection (2) ‑ ‑ ‑

GAUDRON J: See, if it were completely de novo, one would have thought there would be provision to receive new evidence ‑ ‑ ‑

MR GRIFFITH: Well, your Honour, there is a difficulty about – sorry, your Honour.

GAUDRON J: ‑ ‑ ‑ and the mere fact that there is a provision to the contrary and it is expressed to be a review would, I would have thought, suggest that it is a search for error ‑ ‑ ‑

MR GRIFFITH: Your Honour, can I suggest ‑ ‑ ‑

GAUDRON J: ‑ ‑ ‑ of the kind that will grant judicial review.

MR GRIFFITH: Your Honour, can I suggest another reason, and that is: the structure of the Extradition Act, unlike previous laws, or laws, for example, in Canada, do not require any requirement to show a prima facie case, either as an administrative matter or before a court. Section 19(5) states that:

the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in ‑ ‑ ‑

GUMMOW J: It is a document matter. We went through all this in Kainhofer.

MR GRIFFITH: Yes, your Honour.

GUMMOW J: Did we not?

MR GRIFFITH: Yes, we did, your Honour. We say that the reason ‑ ‑ ‑

GUMMOW J: You have been talking about different evidence, but the evidence is going to be minimal, really. It is going to be documentary material.

MR GRIFFITH: Well, your Honour, it was sought to lead new evidence ‑ ‑ ‑

GUMMOW J: I know it was.

MR GRIFFITH: Yes, and what we say is that we are not barred from that, either under section 21(6)(d) or under section 19(5). We submit that the ‑ ‑ ‑

GUMMOW J: What was the evidence about?

MR GRIFFITH: Your Honour, I have handed a hand-up discussion about that, a paper headed “The Committee Membership Evidence”. My learned friends, in their submissions, assert that the matter was scant - in paragraph 39 of the Attorney-General’s submissions, paragraph 30 of Mexico’s submissions. This is a dispassionate summary of the material which was sought to be put before Justice French, on 10 August, some months after he completed the hearing, and the decision was under reserved judgment. What it sought to do was to establish that an integral part of the case against Mr Carlos Cabal, upon which the counts against ‑ ‑ ‑

GUMMOW J: Yes, exactly. That is precisely what you are not supposed to be doing.

MR GRIFFITH: Your Honour, we say we are to establish the fact that there has been an absence of bona fides before the Court by the moving party for extradition. We say that is something which the Court is entitled to look at.

GAUDRON J: But if it is a proper review of the kind with which we are familiar in terms of either the constitutional writs or the prerogative writs or AD(JR)-type legislation, why would you ever have that evidence? If you go back to the orders that the court may make, it can simply “confer or quash and direct a magistrate to” – it itself does not make an order for extradition.

MR GRIFFITH: It is very close to it, with respect, your Honour.

GAUDRON J: But it does not. The form, I would have thought, is important. Nor does it order the release of the person. That might come about, I suppose – even then it does not. It has to go back to the Magistrate. It directs the Magistrate to do that.

MR GRIFFITH: It does not direct him to act according to law, as usually order for review goes back, your Honour. It says he is to sign the order just as much as if he were the registrar of a court.

GAUDRON J: Then (b)(ii), the Federal Court is still directing the Magistrate to issue a warrant.

MR GRIFFITH: To sign the warrant.

GAUDRON J: Yes. It seems to me that ‑ ‑ ‑

MR GRIFFITH: It is just affecting the court order by saying, “You sign the warrant at my direction”. It is not saying, “This is how I view the legal position. You read my reasons and act according to law”. The court itself is acting, with respect, as the party making and bringing its order into effect as the determination in substitution of the Magistrate, and we say with the same characterisation.

GUMMOW J: This evidence that you say you get in before the – you were the moving party for review.

MR GRIFFITH: Yes, your Honour.

GUMMOW J: What was the evidence going to show about that proceeding you had initiated in the Federal Court?

MR GRIFFITH: Your Honour, the evidence was going to show that ‑ ‑ ‑

GUMMOW J: That is was an abuse of process by you.

MR GRIFFITH: No, your Honour. Can I take your Honours to authority and then ‑ ‑ ‑

GUMMOW J: What you were really doing was going back and trying to subvert section 19.

MR GRIFFITH: No, we are not, your Honour, with respect. What we are saying is that the court has an inherent power to protect what we would seek for the moment to call the integrity of the proceedings before it and that if a party ‑ ‑ ‑

GUMMOW J: That is the problem. It is this phrase, “the integrity of the proceedings before it”.

MR GRIFFITH: Can I invoke the Supreme Court of Canada and see whether that ‑ ‑ ‑

GUMMOW J: We have to find out what the proceedings are to discover their virginal integrity.

MR GRIFFITH: The proceedings are that the United States of Mexico is seeking to maintain a position that it is seeking extradition on these various offences where Marco Pasini, the applicant, is accused of aiding and abetting and assisting Carlos Cabal ‑ ‑ ‑

GUMMOW J: We know all that.

GAUDRON J: We know what the proceedings are before the Magistrate. The question is the proceedings before the Federal Court.

MR GRIFFITH: Before the Federal Court, your Honours, the United States of Mexico was seeking to maintain that there was no error.

GUMMOW J: No, you were trying to do something.

MR GRIFFITH: What we were trying to do was being resisted. We say, your Honour, that ‑ ‑ ‑

GUMMOW J: Exactly, you say they cannot resist you.

MR GRIFFITH: Your Honour, we say they have a duty to bring forward factual information which shows that the makings of the proceedings is not bona fide.

KIRBY J: We have to test these propositions not only by the facts of this particular case, but by other circumstances in which the facts might well be even stronger, as you would put it, than the facts of this case, where there would be strong evidence to persuade the Federal Court and yet, under the Act, that cannot be placed before it.

MR GRIFFITH: That is our position, your Honour. We seek to argue the principle ‑ ‑ ‑

KIRBY J: This is a question of power. It is not a question of the merits of the particular application.

MR GRIFFITH: Yes. In fact, your Honour, we did not get all this evidence in. We attempted to bring it forward and we were not – but we say, your Honour, it is a matter of principle.

KIRBY J: I notice that in the same mood, section 21(5) says:

The High Court shall not grant special leave to appeal against the order of the Full Court . . . made more than 15 days after the day –

Now, if a person had a heart attack or if a person had been held incommunicado or something like that, it purports to tell us we cannot, in the exercise of our constitutional powers, provide special leave. I doubt that that is valid.

MR GRIFFITH: That may well be so

KIRBY J: I realise that there is a requirement of expedition, but to impose such an embargo on this Court I would think is not valid.

MR GRIFFITH: With respect, your Honour, we would agree, a matter for another day.

KIRBY J: So what we have to do is review these provisions against the light of what has been attempted, which is a natural and proper attempt to ensure expedition, but in a way that really is, on one view, invading the judicial power.

McHUGH J: Except that under section 73 of the Constitution, our appellate jurisdiction is subject to the regulations of Parliament.

MR GRIFFITH: Yes, your Honour, but there can be a question of protecting the, we say – I cannot think of a better way, your Honour – the integrity of the Court, that there must be a capacity, for example, for the Court to ensure that it is not vested, for example, with all jurisdiction over parking offences in the Australian Capital Territory with no capacity to remit. If that meant that the Court was unable to discharge its other constitutional duty, then issues of power would arise at some stage. There must be a reserve capacity.

KIRBY J: If necessary, that may arise in the immigration matters.

MR GRIFFITH: That may, your Honour.

KIRBY J: I sat until 8 o’clock the other night dealing with four of them.

MR GRIFFITH: Yes. Your Honours, can I inform the discussion with the decision of Shulman v United States, a copy which has been handed to your Honours, a decision of seven justices of the Supreme Court of Canada delivered by Justice Arbour. This case, although under the Charter, it is quite plain that your Honour took a very strong position, apart from Charter issues. It concerned an issue, your Honours, of extradition which is in Canadian law to be determined at first instance by a judge, whether there is a prima facie case, with a capacity to appeal to the Court of Appeal.

Your Honours will see in the summary at the last paragraph on page 616 of the headnote that there was evidence sought to be brought forward that the presiding judge who was seeking, with respect to some telephonic telemarketing scheme frauds, to encourage a raft of persons sought for extradition to the United States to give themselves up. The presiding judge was reported as saying that:

fugitives who did not co-operate would get the “absolute maximum jail sentence”.

Now, her Honour Justice Arbour construed those words and determined that they were not inappropriate and the judge was not really saying that.

The second allegation – and one picks up the actual words that were used by the prosector on page 4 of the report in paragraph 7 – was that the prosecuting attorney seeking the extraditions said:

that unco-operative fugitives would be subject to homosexual rape in prison.

The parties sought to adduce evidence of those statements as “fresh evidence” and ‑ ‑ ‑

GUMMOW J: Evidence going to what issue?

MR GRIFFITH: Your Honour, evidence going to the fact that the proceedings before the court were such that it could be demonstrated that the requesting authority was acting in a way which is inimical to the integrity of the court processes. Can I follow your Honour through the judgments to indicate how her Honour expressed it? So they are the facts, your Honour. Paragraph 16:

the Court of Appeal for Ontario dismissed the appellant’s motion to adduce fresh evidence, holding that the evidence related to matters which were for the Minister of Justice to consider‑

and that is exactly what happened here, your Honour. The last paragraph of the judgment says if, in fact, these are circumstances, we would hope that the Attorney would have regard to them in exercising section 22 jurisdiction. We say, your Honour, it is inappropriate when such matters are pointed out which infect the proceedings before the court to say that is a matter for the Attorney to take into account, and that is what Justice Arbour held.

Paragraph 27 notes the process where it is not necessary to appeal, you can proceed directly to the executive level dealing with issues of surrender. Then in paragraph 33, getting to this implied and inherent power, her Honour refers to both the Charter under the Extradition Act, but says the court:

has, like all courts, an implied, if not inherent jurisdiction to control its own process, including through the application of the common law doctrine of abuse of process.

She then, under heading C,. refers to the “American Statements as Fresh Evidence”. At paragraph 41 she notes that the evidence of the prosecutor in her view:

was properly characterized by the extradition judge in Cobb as a shocking use of threats ‑

and then she goes on to say:

The question then is whether the Court of Appeal should have received the evidence proffered by the appellant as fresh evidence and, if so, whether it should have stayed the proceedings against the appellant as a result.

Then she goes to paragraph 44:

Properly constructed, the evidence here was tendered in the Court of Appeal for the purpose of invoking the jurisdiction of that court to control its own process, rather than for the purpose of asking the court to review the proceedings in the court below.

GUMMOW J: Yes, but what was its process? That is what I do not understand.

MR GRIFFITH: Your Honour, she does discuss this, she keeps going. Paragraph 45:

In such cases, the evidence is not offered as a foundation for reviewing the decision under appeal, but as a basis for requesting an original remedy in the Court of Appeal. Consequently, in these circumstances, the evidence must be relevant to the remedy sought before the Court of Appeal. It must be credible and sufficient, if uncontradicted, to justify the court making the order.

She says in the next paragraph that there:

was an allegation of abuse of the ongoing judicial process.

KIRBY J: But you were not in this realm of discourse, were you? You were not seeking to quash the Magistrate’s decision under the Judicial Review Act if that is available ‑ ‑ ‑

MR GRIFFITH: It is not available. That is one of our points.

KIRBY J: ‑ ‑ ‑ or under some other constitutional writ, or to get some stay of the Federal Court’s exercise of its jurisdiction on the basis of abuse of process. You were within the realm of the Extradition Act.

MR GRIFFITH: Yes, and, your Honour, we were in the realm of, we say, judicial review where the court should ensure, we submit, the integrity of the process, that the responding party should not be able to continue as part of the ongoing judicial process what we say is abusive behaviour before that court, and that is, your Honour, we say in this case, the failure to reveal the inconsistency with respect to the matters which have occurred in Mexico leading to the nolle prosequi being entered the day after the order of the judge – the Magistrate.

GLEESON CJ: In paragraphs 15 and 16 of your document headed The “Committee Membership Evidence” you explain what you say was the significance of this evidence which seems to be that it tended to suggest that the present applicant was not guilty of the offences alleged against him.

MR GRIFFITH: It is not so much that, your Honour, but we say that it tended to suggested that there could be no basis for the offences being pursued. We say it is to be characterised, your Honour, if an integral part of the information and count is that Mr Carlos Cabal was a member of the High Debt Committee and it has been accepted in judicial process in Mexico that proceedings cannot be continued against him and a nolle issued on the grounds that he was not a member of that High Debt Committee, we say it demonstrates, if that same fact as continues to be relied upon at the level of review before the court as maintaining the entitlement for extradition, that in those circumstances there is a situation we say where the integrity of the court’s processes are damaged.

GLEESON CJ: Damaged by somebody seeking extradition of a person against whom there is not a substantial case.

MR GRIFFITH: Against whom that person has accepted there is no basis of a case because it has issued a nolle on the same factual basis that we sought to establish as the factual basis which was asserted to the contrary as a basis for the extradition.

KIRBY J: But the whole scheme of the Act and of extradition here is to prevent, as it were, a litigation in the extraditing state of the substantive question which you should fight out in the state to which the person is ‑ ‑ ‑

MR GRIFFITH: We accept that, your Honour, but what we say, and we have spelt that out in our submissions, is that this evidence was of a different nature, it was to show that Mexico was pursing its claim for extradition on the basis that it could assert in Australia as an element of the charge that Mr Carlos Cabal was a member of the High Debt Committee when before its own courts and judicial process it accepted that he was not and that prevented it continuing proceedings against him on other counts.

KIRBY J: Again, the matter being a point of power, the argument has to be tested by what is the case if you have an incontestable factual basis for asserting that you could demonstrate before a Federal Court that the whole foundation of the case has disappeared but the respondent will not admit it.

MR GRIFFITH: So, we are not seeking, your Honours to show that there were no facts because we were not able to bring evidence. All we are showing is there could be no basis for Mexico proceeding and to put it bluntly, your Honours, a want of good faith, the fact that this nolle was entered the day after the committal by the Magistrate.

KIRBY J: What is wrong with saying that you can put those matters to the Attorney‑General and that he will be trusted, as the First Law Officer, not to extradite you if that is in fact demonstrable?

MR GRIFFITH: We say that the Act demonstrates by vesting the jurisdiction in the court that the issue of whether or not these various exceptions are satisfied and a person is an eligible person should – this puts against us – be determined as a matter of exercise of judicial power by a Court – the Chapter III court, your Honour.

If the Court is exercising judicial power, we say it is untenable for it to do so on the basis that an allegation which may, for the purpose of argument, be assumed to be true, as to these issues of inconsistency to the extent that one can say that there is a want of good faith in the process, would destroy any basis for the Court maintaining the exercise of its jurisdiction. That is what Justice Arbour ‑ ‑ ‑

KIRBY J: But how does that fit with what Justice McHugh mentioned earlier, that is the view which his Honour and myself and I think the majority of the Court in, I think, Abebe, said that the Constitution permits Parliament to limit and has limited, and that is it?

MR GRIFFITH: Your Honours, can I indicate we accept entirely the majority of the Court in Abebe. That is dealing with the issue of defining the matter before the Court. The matter before the Court here is to review the Magistrate’s decision whereby he has held that Mr Pasini is an eligible person and we do not seek to cut down that by this argument. That remains the matter before the Court. We say it is a completely different issue and a matter of the Court’s implied or inherent jurisdiction to protect the integrity of its own processes ‑ ‑ ‑

GLEESON CJ: But the threat to integrity that you identify comes from the pursuit of a request to extradite somebody against whom there is either a weak or a non-existent case.

MR GRIFFITH: No, your Honour. What we say is that we demonstrate that there is a want of good faith; that is where our argument come from. That Mexico is not acting in good faith before the Magistrate and maintain its position before the Court, by withholding this information that in its own criminal processes in Mexico it has taken the view that Cabal is not a member of the High Debt Committee, a matter which is alleged to the contrary to support the counts against Mr Cabal and Mr Pasini.

GUMMOW J: Now, what then happens on this review?

MR GRIFFITH: Your Honour, what we say is that ‑ ‑ ‑

GUMMOW J: Assume all this gets in, what are we going to do about it?

MR GRIFFITH: Your Honour, what the Court should do is to ‑ ‑ ‑

GUMMOW J: In terms of these remedies under section 20?

MR GRIFFITH: Your Honour, we say the Court should exercise an inherent remedy and say that the whole matter of the extradition proceeding should be stayed. That is what happened in this case.

KIRBY J: What, stayed until the issue of whether this does amount to an abuse of the process of a Federal Court is determined on the facts.

MR GRIFFITH: Your Honour, we say the Court should satisfy itself on that as the issue sought to be raised before Justice French and then the Court of Appeal. If the Court is not satisfied well then it falls away as an issue. If the Court is satisfied, then that court should determine it finally and make an order that the entire extradition proceedings be stayed.

GUMMOW J: How do you square that with section 21(2)?

MR GRIFFITH: Your Honour, what we say, we are dealing with the inherent jurisdiction of the court.

GUMMOW J: Now then ‑ ‑ ‑

McHUGH J: What inherent jurisdiction?

GUMMOW J: What inherent jurisdiction of the Federal Court?

MR GRIFFITH: Sorry, implied jurisdiction, your Honour.

McHUGH J: What implied jurisdiction?

MR GRIFFITH: Your Honour, we say implied jurisdiction such as – I keep reading Justice Arbour; the jurisdiction recognised by Justice Arbour in her judgment.

KIRBY J: Her Ladyship did say “implied or perhaps inherent”.

MR GRIFFITH: She did, your Honour.

GUMMOW J: But that was different, was it not, because the initial procedure there seems to have been before a court.

MR GRIFFITH: And it was sought to be raised as an issue at the Court of Appeal level.

GUMMOW J: I know that, but there was process below.

MR GRIFFITH: Your Honour, we say that ‑ ‑ ‑

GUMMOW J: ‑ ‑ ‑because, in Canada, of course, as we know, they do not have the same distinctions we have.

MR GRIFFITH: Yes, I follow the difference, your Honour. We say, if a proceeding comes into the court tainted ‑ ‑ ‑

McHUGH J: Well, you can stay the court. That would not do you much good.

MR GRIFFITH: We say it would, because we say ‑ ‑ ‑

McHUGH J: No, stay the proceedings in the Federal Court, that would not do you any good.

MR GRIFFITH: I did not ask for that, your Honour; I asked to stay the extradition.

McHUGH J: I know you do not; that is about the only remedy to be open for abuse of process.

MR GRIFFITH: No, your Honour, we say stay the extradition.

KIRBY J: Quash the process.

MR GRIFFITH: Your Honour, we have an argument on non‑severance, of course. We say to stay the whole process so that it cannot go any further, either by staying the extradition application ‑ ‑ ‑

McHUGH J: But where do you get this power to stay the extradition proceedings?

MR GRIFFITH: Your Honour, we say it is part of the power of the court to protect the integrity of its processes.

McHUGH J: Why? How?

MR GRIFFITH: Because it is being, we say, involved by the non‑disclosure in what may be termed a fraud.

McHUGH J: I can understand an argument that said the Federal Court ought to terminate its own proceedings. That does not get you anywhere. You want to do more than that. You want it to terminate a proceeding which is then outside the court.

MR GRIFFITH: We do, your Honour. We say that what is in the court, your Honour, is the review of the extradition process which, on another view of our argument, is an administrative action in any event. It is part of the chain. We say, your Honour, that the chain should be broken so it does not go forward and the court must have powers to deal with that.

KIRBY J: I notice the Supreme Court of Canada’s order was a stay of the extradition proceedings.

MR GRIFFITH: Yes, your Honour.

KIRBY J: Was that under the Charter? It is a - - -

MR GRIFFITH: No, it is not, your Honour. That is why the case is interesting. It is not just a Charter case. Can I keep going through the judgment, your Honours? Her Honour Justice Arbour says in paragraph 48:

In my opinion, the Court of Appeal should have received the evidence tendered by the appellant and should have considered whether that evidence revealed an abuse of process which possibly tainted, if not the committal hearing itself, the legitimate appeal from it.

So she is talking about the appeal process being tainted.

Abuse of process is always better dealt with by the court where the abuse occurs.
49. Having reached this conclusion, I would normally remit the matter to the Court of Appeal for its consideration of the evidence and for its assessment of the intent and import of the remarks by the American officials. However, in the unusual circumstances of this case, no useful purpose can be served in sending the matter back to the Court of Appeal.

She says in paragraph 51:

the threats uttered by the U.S. prosecutor are, in my view, unambiguous and shocking . . .
52. Standing alone, the statements of the prosecutor constitute a sufficient basis upon which to disentitle the Requesting State from pursuing this matter further before the courts in Canada. This threat is still in effect as the United States appears as a respondent before this Court. We are therefore in as good a position as the Court of Appeal to intervene to protect the integrity of the judicial phase of the extradition proceedings against the appellant, including the appellate component of that judicial phase.

And then she deals with this issue, “Can the Minister consider it?”

KIRBY J: This is all done without a Chapter III.

MR GRIFFITH: Sounds like Chapter III, your Honour.

KIRBY J: I say this is all done without a developed doctrine of the Chapter III.

MR GRIFFITH: Yes, your Honour, but we say Chapter III would support it. We do not need a charter. Her Honour makes it clear she is dealing with it on a dual basis and she is not just relying on the section 7 charter claim. Paragraph 53:

For the reasons given in Cobb, even though other remedies can always be considered and applied by the Minister at the surrender stage, such as a refusal to surrender or a surrender with preconditions, I am of the view that it is neither premature nor inappropriate for appellate courts to preserve their own integrity by disallowing the claim of litigants who use unconscionable means to advance their interests before the courts. All things considered, such was the case here.

Her Honour’s disposition on paragraph VII heading paragraph 60 she holds:

The Court of Appeal erred in declining to receive the fresh evidence. Even if the U.S. Government did not endorse their views, by allowing its officials to place undue pressure on a Canadian citizen to forego due legal process in Canada, the Requesting State has disentitled itself from pursuing its extradition request before the courts. The intimidation bore upon the judicial phase of the extradition process in its entirety, thus engaging the appellant’s right to fundamental justice under s. 7 of the Charter as well as by virtue of the doctrine of abuse of process.

GUMMOW J: Now, the extradition process in its – the judicial phase included what was happening at first instance.

MR GRIFFITH: Yes, your Honour. We say the only difference here is that Mexico is the respondent at the judicial stage rather than the appellant, but we say when the issue is fairly raised, firstly, there should be a capacity to lead evidence of the equivalent sort to establish ‑ ‑ ‑

GUMMOW J: Anyhow, this is some appeal on the merits. What is the invalidity that is involved in all of this?

MR GRIFFITH: In our case, your Honour?

GUMMOW J: Yes.

MR GRIFFITH: On this issue, we are saying it is not a question of invalidity. It is a question of whether the Court should act to protect the judicial part of the process, to protect ‑ ‑ ‑

GUMMOW J: I thought you were seeking special leave on some constitutional grounds and the other grounds were dismissed.

MR GRIFFITH: Your Honour, I have moved forward to the second aspect of our ground of reception of new evidence. So what we say, with respect ‑ ‑ ‑

GUMMOW J: Well, wait a minute. What were the grounds – you were agitating a lot of grounds before us before. Some were dismissed, and you were confined to constitutional grounds. You seem to be slipping back into grounds the door to which had been shut.

MR GRIFFITH: With respect, your Honour granted leave for us to amend our grounds of appeal as to the second ground. The second ground is that we were entitled to bring this evidence forward and inasmuch as the Act is to be construed it should not be construed to prevent us leading the evidence. If it is so construed, then that section would be unconstitutional. So the issues are related.

GUMMOW J: Which section?

MR GRIFFITH: Your Honours, subsection (6)(d).

GAUDRON J: But the constitutional validity of that, even on your argument, must depend on identification of the nature of the proceedings, must it not?

MR GRIFFITH: For our purpose, it is sufficient that it is a judicial proceeding, which it must be.

GAUDRON J: Well, not necessarily. If it were a straight out appeal in the normal chain of the judicial hierarchy, there would be no problem with that, would there?

MR GRIFFITH: Your Honour, it still might have a fresh evidence issue, I suppose, under the Evidence Act. It was an appeal from one judge to a Full Court.

KIRBY J: And this was a supervening development, in fact.

MR GRIFFITH: Supervening development. Your Honour, we say, it is not fresh evidence in the matter; it is to bring forward an issue, namely, that there is a want of bona fides in the moving party for extradition.

KIRBY J: The problem I have is that – and I do not want to be unnecessarily technical – but you remained within the extradition paradigm. You did not, as it were, move the Federal Court separately out of the exercise of its implied or other jurisdiction to quash the extradition proceedings because of want of good faith, or ‑ ‑ ‑

MR GRIFFITH: Your Honour, in effect we did. Although it is noted in the appeal book there was a notice of motion on 10 August, I ‑ ‑ ‑

McHUGH J: But where does this Court get this implied jurisdiction to quash that you talk about? Its jurisdiction is conferred under section 77 of the Constitution and that defines its jurisdiction and it is a very limited jurisdiction. It can confirm the order of the Magistrate or quash the order of the Magistrate. A Federal Court judge is not in the position of a common law judge with a commission of oyer and terminer and gaol delivery. It does not have the jurisdiction of the Court of Queen’s Bench or some other court at Westminster. It is a statutory court.

MR GRIFFITH: We agree, your Honour. What we say is that that jurisdiction must be a jurisdiction the integrity of which may be preserved by ensuring that there is no abuse of process at the level of that court proceeding.

GUMMOW J: Look, your grounds of appeal assert invalidity of laws. That is the only ground on which you have got yourself here today.

MR GRIFFITH: Grounds 4 or 5, your Honour?

GUMMOW J: What are the laws that are invalid because of this ground you keep agitating about evidence?

MR GRIFFITH: Your Honour, we have the construction point as to whether it can be put against us as a matter of construction that section 19(5) and section 21(6)(d) prevent this evidence being led.

GUMMOW J: Assume you fail on the construction point.

MR GRIFFITH: If we fail on that, your Honour, we say those provisions are invalid in as much ‑ ‑ ‑

GUMMOW J: Why?

MR GRIFFITH: Because they prevent you bringing evidence to the court to show that there is abusive conduct by the responding party ‑ ‑ ‑

GUMMOW J: But that is not an answer in constitutional terms.

MR GRIFFITH: Your Honour, we say it is against the inherent power of the court to ensure that there is a purity in its processes and that a moving party does not mislead the court by failing to ‑ ‑ ‑

GUMMOW J: That is not in constitutional terms either.

MR GRIFFITH: We say that is a definition of the inherent right of any court exercising Chapter III jurisdiction to protect its processes to enable parties to lead evidence, whatever the statutory terms of conferral of jurisdiction are, to show that there is an abuse of process before that court.

McHUGH J: No one would dispute that, I would not - - -

MR GRIFFITH: I think the respondents do, your Honour.

McHUGH J: You have to identify what the Chapter III proceeding is. The Chapter III proceeding is the section 21 proceeding.

MR GRIFFITH: Yes, and what we say is that once that position arises, there should be – if the court is satisfied that the moving party for extradition, be it a respondent or an appellant before the court, has acted in a way of the sort characterised by Justice Arbour, for example, then the court is able to protect what she refers to in paragraph 61 of “those fundamental principles of justice which underlie ‑ ‑ ‑

GUMMOW J: By giving a remedy for which there is no law providing.

MR GRIFFITH: Giving a remedy which enables the court to deal with that process before it. The remedy, we would submit, is the similar remedy to that ordered by the Canadian court, namely to order that the extradition process cease.

McHUGH J: But your argument would be the same, it seems to me, if the only right of review was on a question of law on a stated case. You would have to maintain that if the Federal Court was hearing a stated case as to whether or not the Magistrate had erred in law in some respect, the court had this jurisdiction to stay the whole proceedings. That is what it comes to.

MR GRIFFITH: Your Honour, that may be the case, that is a different situation.

McHUGH J: I do not think it is very different. It seems to me in principle it must be exactly the same.

MR GRIFFITH: Your Honour, we say it is not because here there are two specific statute provisions relied upon to say you cannot do what you normally should be able to do on review, namely, lead new evidence when it goes into a court.

McHUGH J: But that is an assumption you make, that you must be able to lead new evidence. We are dealing with Chapter III and section 77 of the Constitution in particular. They permit the definition of jurisdiction in the Federal Court.

MR GRIFFITH: Your Honour, against us it is not argued that anything else but these two subsections or subsection and paragraph prevent new evidence being led. That is the only think put as a bar to leading new evidence. We submit, your Honour, those bars cannot be maintained where we have evidence of the sort, we say, your Honour, which indicate that there is a want of good faith to the extent of a concealing of relevant information which really destroys, your Honour, certainly as a matter of justice and, as Justice Arbour said, the community sense of fair play and decency to enable Mexico to maintain a position by its silence which objective evidence sought to be led and we say, for the purposes of argument, it should be assumed that the evidence so satisfies the Court that the matters maintained in the extradition offences for the purpose of the request by Mexico are untenable to the knowledge of Mexico ‑ ‑ ‑

McHUGH J: But how can Mexico be abusing any process? What can it do? The statute will not allow it to say to the Federal Court, “Well, hear this new evidence, I give my permission”. So it does not do anything.

MR GRIFFITH: It is for the Federal Court to inquire into it, your Honour.

McHUGH J: Why?

MR GRIFFITH: The issue is raised that there is untenable - - -

KIRBY J: Did you formally tender the evidence before Justice French?

MR GRIFFITH: We sought to, your Honour, but it was rejected.

KIRBY J: Where do we find that in the record, or just give us a reference to where - in due course, not now necessarily.

MR GRIFFITH: Your Honour, it is contained in our membership committee evidence summary, but some of the affidavits in the appeal book, your Honour, were not accepted.

KIRBY J: But is there a transcript of the proceedings before Justice French where you sought to read the affidavits and his Honour rejected the affidavits?

MR GRIFFITH: It is not in the application book, your Honour.

KIRBY J: It is in the application book?

MR GRIFFITH: It is not.

KIRBY J: It is not?

MR GRIFFITH: No.

KIRBY J: Do we not need that part of the record?

MR GRIFFITH: Justice French deals with it in his judgment, your Honour.

KIRBY J: He might but, I mean, you are relying on having moved the Court to do something. I would like to see what you actually did.

MR GRIFFITH: We can undertake, your Honours, that that transcript can be given to the Court, but the application was made as an oral motion on 10 August and as his Honour makes clear in his judgment as supported by the Full Court on the appeal, he rejected the receipt of that evidence. The evidence itself is included particularly in volume 1 of the appeal book and it is noted in our hand-up summary.

KIRBY J: Your theory is that if the result of these provisions forbidding the reception of evidence is so to constrain a Federal Court from performing the function which the Constitution implies that it will perform, that those provisions must therefore be in breach of the Constitution?

MR GRIFFITH: It is inconsistent with the proper exercise of judicial power to preserve the integrity of the court process, we submit. We say there is no conflict with Abebe which is dealing with merely the definition of “the matter”. We accept the definition of “the matter” but we say if it is truly court process which is put – as indeed it must be – against us is that it is court process, then it must be a court enabled to completely and dispassionately to ensure that there is not something in the proceedings before it, when raised, which constitutes, as expressed, an abuse of process before that court.

KIRBY J: Which on your theory would have entitled the Federal Court to quash the order of extradition?

MR GRIFFITH: Whether it is vested to quash or stay we say that the court would have ‑ ‑ ‑

KIRBY J: A stay is not much use to you, is it?

MR GRIFFITH: Well, your Honour, to stay the extradition process that would be sufficient.

GUMMOW J: Of course it would be sufficient but where does the power come from?

MR GRIFFITH: We say, your Honour, it is a similar power to what this Court had in Tate.

McHUGH J: That was a stay. I noticed you moved quickly away from the suggestion that you could quash because that really shows the difficulties of your argument; seeking a power to quash.

MR GRIFFITH: We say stop, your Honour. Stop.

KIRBY J: But if the proper exercise of the jurisdiction power in the Federal Court is still that which is defined by the Extradition Act and if the new evidence is such that the only proper exercise, to use Justice Arbour’s expression, is that which is dictated in the particular case, then why does it not have the power under the Extradition Act.

MR GRIFFITH: Yes. It might be - your Honour Justice McHugh to pick up what has been suggested, that section 21(2)(b) enables the Court to quash.

McHUGH J: Yes.

MR GRIFFITH: So, your Honour, if it thought it was appropriate to quash because it was satisfied of this abusive position ‑ ‑ ‑

McHUGH J: Yes, but it is given a jurisdiction to quash under certain conditions, to quash, having regard to the materials before the Magistrate. You get involved in a very circular argument, it seems to me. You want to say, “Well, it has this power to quash on the materials before the Magistrate but now we want to say it has the power to quash on further materials that we want to put before ‑ ‑ ‑

MR GRIFFITH: Because we would say, your Honour, that there is a constitutional exception being confined to the material before the Magistrate. You cannot bring forward materials dealing with the matter. You can bring forward materials as it happened in the Supreme Courts of the United States, your Honour, dealing with Canada, dealing with the issue of abusive conduct.

McHUGH J: The argument is ingenious but at the moment it seems to me to lack conviction, Dr Griffith.

KIRBY J: It really only builds on the Canadian Supreme Court unanimous decision, it seems to me.

McHUGH J: They do not have a Chapter III ‑ ‑ ‑

KIRBY J: Exactly. That makes it a stronger argument.

MR GRIFFITH: I would rather not be ingenious, your Honour, but convincing, but that is the second way in which we put the matter.

KIRBY J: What is wrong with ingenious arguments?

MR GRIFFITH: Well, they are attractive if they are convincing, your Honour. Your Honour, that is the way we put the question of the new evidence. We say that either you construe these provisions so that they do not prevent you from leading evidence or if you do they are unconstitutional and we say the evidence is not about the matters. The evidence is not about prohibited matters under section 19(5), adducing:

evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence –

The evidence is about showing that the United States of Mexico, whether it be regarded before the Magistrate and more particularly in maintaining its position before a court exercising judicial power, is acting not honestly, not bona fide and not without abuse of the process at that level in the courts.

GLEESON CJ: Because you can contradict the matters.

MR GRIFFITH: Your Honour, with respect, we would prefer not to say we contradict it. It is just we are leading evidence about a different matter.

GLEESON CJ: You are leading evidence to show that you are not guilty.

MR GRIFFITH: Not to show, your Honour, that ‑ ‑ ‑

GLEESON CJ: And that they know you are not guilty.

MR GRIFFITH: Your Honour, not to show that we have not engaged in conduct constituting extradition offences. We do not seek that finding at all. We seek a finding, your Honour, that the United States of Mexico is acting in an unconscionable, unfair, unjust, abusive and a dishonest way.

GLEESON CJ: Because it is continuing to pursue you when it knows you are not guilty.

MR GRIFFITH: Yes, continuing to pursue us, your Honour, when it knows under its own processes as accepted before its courts, that the fact of membership here of the High Debt Committee is something that is conceded for its own legal purposes is not the case.

GLEESON CJ: I have great difficulty in understanding why this evidence does not fall squarely within section 19(5).

MR GRIFFITH: If your Honour finds that, we say to that extent subsection (5) is beyond power. So that is the construction point. We do not stand or fall on that, your Honour. We go to the issue to say, whatever the Act says, we are entitled to lead this evidence, and we say it should be tested on the assumption that, were it true, we did not get the evidence in and it was not tested. The hand-up indicates that it is more than scanty. It does have a substantial base based on translated orders of the court which were produced but ‑ ‑ ‑

KIRBY J: But do we not also have to test it on what would be the position in this country, if the same situation arose as arose in Canada?

MR GRIFFITH: We accept that, your Honour.

KIRBY J: There was an order for extradition and it turned out that it could be proved beyond reasonable doubt, and even, perhaps, not contested, that threats and intimidation were imposed, that that could not be proved in the Federal Court. Is that the logic of the argument to the contrary, or have I missed something?

MR GRIFFITH: No, that is the same position transplanted ‑ ‑ ‑

GUMMOW J: It is not, really, because there is a question of the Attorney’s ultimate decisions ‑ ‑ ‑

MR GRIFFITH: Your Honour, I was going to say that. What we say is that ‑ ‑ ‑

GUMMOW J: ‑ ‑ ‑ and judicial review of that.

MR GRIFFITH: We say, it is a derogation from the court dealing with the integrity of the process before it, to say, as their Honours did in the Full Court in their last paragraph ‑ ‑ ‑

GUMMOW J: It is simply not right to ‑ ‑ ‑

MR GRIFFITH: I would not want to say mealy-mouthed, your Honour, so I will not, but in paragraph 305, to say – the last paragraph of their judgment:

If it should ultimately prove to be the case that the Mexican Government has deliberately failed to disclose material to the magistrate which ought to have been disclosed, and thereby misled both the magistrate and the learned primary judge on review, that would be a most serious matter. It would, however, be a matter which, under s 22 of the Act, may be taken into account by the Attorney-General in deciding whether to exercise his discretion to permit Mr Cabal and Mr Pasini to be surrendered.

GUMMOW J: Now, that discretion, I think everyone agrees, attracts at least some measure of judicial review, does it not?

MR GRIFFITH: We might have the same difficulty, your Honour, with judicial review, bringing forward evidence. It might be put that judicial review under the Administrative Decisions (Judicial Review) Act ‑ ‑ ‑

GUMMOW J: No, 75(v).

MR GRIFFITH: ‑ ‑ ‑ or 75(v), your Honour, would not enable us to bring the evidence forward. For example, it could have the same bar as his Honour the Chief Justice put with respect to bringing it forward now.

GUMMOW J: You seem to me – at the moment, if you are on any wicket at all, that is the better wicket than the one you say is the better wicket.

MR GRIFFITH: I am not sure which end of the wicket I am on, when your Honour says that, but ‑ ‑ ‑

GUMMOW J: At the moment you are on the weaker on.

MR GRIFFITH: Your Honour, I will go up the other end. Your Honour, they are our submissions with respect to the capacity to leave this evidence on the assumption that it would establish that there was a want of good faith ‑ ‑ ‑

GLEESON CJ: Just before you go any further, Dr Griffith, could I ask you a procedural question? What is the relevant print of the Extradition Act 1988 that we should be looking at? Reprint as at when?

MR GRIFFITH: There is the reprint as at 30 April 1990 and there is one amendment to that which is No 76 of 1990 ‑ ‑ ‑

GLEESON CJ: Thank you.

MR GRIFFITH: ‑ ‑ ‑which has no particular amendment relevant to these issues.

KIRBY J: Is that the current print, or is that the print as at a certain relevant date.

MR GRIFFITH: Your Honour, this is the current print bought a couple of weeks ago, so it is the last issue.

KIRBY J: So that is, as far as you know, the one which is in force at the moment?

MR GRIFFITH: When you go to buy it, your Honour, you get the 30 April 1990 plus No 76.

KIRBY J: That was annexed to your submissions, I think, was it not?

MR GRIFFITH: It was, I hope, your Honour, yes, I hope it was. Your Honours, may I then return to our principal ground dealing with the issue of constitutional power. Your Honours, we have sought there to expose our submissions at length as to how ‑ ‑ ‑

KIRBY J: Just before you leave the last one, is there a provision in the Canadian Extradition Act similar to the provision that forbids the reception of evidence?

MR GRIFFITH: No, it is the other way around, your Honour, because you are entitled at a judicial level to prove a prima facie case, so it is exactly what you can do. It is not a “no evidence” system. We mention in our submissions, your Honour, that there has been a recent parliamentary committee, which is reviewed ‑ ‑ ‑

GLEESON CJ: In Canada at the judicial level the United States was the moving party, is that right?

MR GRIFFITH: Yes, your Honour, it had to prove a prima facie case. We have handed to your Honour a report No 40 of August this year by a parliamentary committee Extradition of Review of Australia’s Law and Policy where there are recommendations against this “no evidence” approach. It says it should be referred to the Law Reform Commission for further report. That is a matter of current controversy, but the Australian law is quite different from the Canadian law, because of the “no-evidence” basis of the Act, which I will come to in a moment, because we rely upon that on our argument on no severance.

KIRBY J: But there would be a practical problem of the Federal Court in every case having an application to allow some evidence to show want of good faith, want of reasonable decision, want of taking into account all relevant considerations and all of that, then you would be undermining the legitimate purpose of the Parliament within its constitutional power to limit extradition proceedings.

MR GRIFFITH: Shall I indicate to the Court that we do not seek to raise an argument that those sort of matters can be led.

KIRBY J: I realise that, but we have to test your proposition by what would happen in practice.

MR GRIFFITH: Our proposition is limited to showing what would constitute plain abuse, if that conduct happened in the face of the Court. So what we say is, your Honour, if it shows that there has been a want of good faith, deliberately misleading the Court or ‑ ‑ ‑

KIRBY J: Did you assert that when you sought to read the evidence before Justice French?

MR GRIFFITH: Your Honour, I have not read the transcript of that part, but I understand that is the case.

KIRBY J: Well, that is why I would like to see what was actually said.

MR GRIFFITH: It was put that the evidence was to do just that, your Honour. That is how we put it, but we will give the transcript to the Court. I think your Honours Justice French’s judgment and the Full Court’s judgment sufficiently indicates that was the function of the evidence. It was not sought, your Honour, to claim any failure as to procedural aspects of the sought; it was put to show that there was a plain want of good faith in the process.

Your Honours, dealing with the issue of whether or not there is characterisation as judicial power, we have stated in our submissions the extent to which we say one should have regard to the characterisation of the power itself rather than regard it as driven by the repository of the power.

On our analysis, your Honour, there is only Aston v Irvine and Bayer Case, which could be regarded as dealing with the situation here where one has a vesting for an administrative purpose in an administrative body and substantially vesting of exactly the same power in a judicial body, which is thereby asserted to be transmogrified into an exercise of judicial power.

The other authorities, your Honour, that have been asserted against us we say deal with characterisations, for example in the City of Salisbury Case of the primary vesting, not dealing with the case of vesting in one body and then have the review process vest in the other and changing colour, the chameleon. We say the chameleon does not arise as an issue when one is considering the primary vesting; that is determined by all the circumstances and possibly by having regard to the body in which the power is vested. We say, your Honour, it is a completely different situation and basically only dealt with very briefly by two very old authorities of this Court before enlightenment on many of these Chapter III issues, of the issue of successive characterisation being dealt with.

There is reference in my learned friend’s materials to Quinn, an extract from the judgment of Justice Gibbs. We say in Quinn Justice Gibbs, as much as the other Justices of the Court, followed the view of Justice Jacobs to indicate that the only issue in Quinn was whether or not the vesting in an administrative body should be characterised as non‑judicial and even then in Quinn, Justice Aickin was minded to regard the particular function as being a judicial function apart from the fact he regarded, just in the last paragraph of his judgment, of it being covered by the Bayer Case.

GLEESON CJ: Now, perhaps we can come back to this at 2 o’clock, Dr Griffith, but before we adjourn could I revert to this matter of bail. Is there going to be a contest about that?

MR GRIFFITH: There is, your Honour. Your Honour, if we are not standing at the end of the day, we cannot pursue it, to the extent if the Court does not reserve – we have to finish ‑ ‑ ‑

GLEESON CJ: Obviously, but what I do not want to happen is a wrangle developing at ten past four about the issue of bail.

MR GRIFFITH: No, your Honour. Your Honour, because there is no agreement we have had to re-file all the bail papers ‑ ‑ ‑

GLEESON CJ: Then it will probably have to be dealt with by a single Justice.

MR GRIFFITH: It could be, your Honour. We would hope if we are still standing at the end of argument, the Court might be prepared to order bail to be continued on the same terms as Justice Kirby on the continuation of the recognisance and the security.

GLEESON CJ: Well, would you put in a written form, so that we can look at it, any specific proposal you have in that regard and your opponents can put any competing proposal, but as I say, what I do not want to happen is the eruption at 10 past 4 this afternoon of a contested bail application before a Court of five Justices.

MR GRIFFITH: I think it is unavoidable that it will be opposed, your Honour. That is all we seek, your Honour, is a continuation of the bail as if Justice Kirby’s order, which ceased to operate at 10 am this morning, was continued with the same terms of recognisance and security and the lodging of an amended mortgage by Mrs Davies as security. That is all we need. But, your Honour, that is opposed. The concept of bail is opposed rather than the manner of it.

GLEESON CJ: Would you be good enough to reduce to writing over the adjournment the precise form of the order that you want us to make?

MR GRIFFITH: Yes, your Honour.

GLEESON CJ: Thank you. We will adjourn until 2 pm.

AT 1.01 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ: Yes, Dr Griffiths.

MR GRIFFITH: Your Honour, there is a copy of a draft order which should be here in seconds. If I could raise the issue then.

GLEESON CJ: Certainly.

MR GRIFFITH: One reason to raise it, your Honour, is that if an order is not made ‑ ‑ ‑

KIRBY J: I cannot hear you, Dr Griffith.

MR GRIFFITH: If an order for bail is not made in the next hour or so, your Honour, it would be impossible to implement it before Monday, so if we could seek leave to raise it. I think we have more or less agreement on the terms of the order. The issue is whether it should be made. If your Honours please.

Returning to the primary issue of the dual characterisation, may I take your Honours to the primary paragraphs of our submission as to this, particularly paragraph 28. There we make the point that we contend that the determination of the court really does not determine anything except a factum as part of the administrative process. It is not a case of the court verifying that a prerequisite such as a jurisdictional fact exists. It is a case of the court involved in the task of establishing the jurisdictional fact as part of what we say is inherently administrative process, so that the court is required to perform an adjudicative function, we put it incidental to administrative tasks that are to form part of the executive power of government. We refer to Justice Windeyer in the well‑known passage in Tasmanian Breweries.

We say that it is insufficient to justify that finding as being judicial because, as was put by the Full Court at paragraph 87 on page 307, volume 3 of the application book, it is a determinative finding at the time it is made. We submit it is not even a determinative finding at the time it is made. We say that for two reasons. Firstly, we say, your Honour, that the matter of satisfaction under section 19(2)(d) is really determinative of nothing to say that the court is, as is the Magistrate, satisfied:

that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

It is not sufficient to explain, as the Full Court does, with respect, that that is a matter which can be reviewed by the Attorney at a different time. The Attorney certainly does not have regard merely to the facts between the determination by the Full Court and the later determination which possibly could even occur on the same day by the Attorney under section 22. It is to be remembered that the finding that can be made by the Attorney with respect to extradition objection is not substantial grounds for believing but the Attorney‑General is satisfied, a higher requirement so far as the Attorney is concerned by reference to a level of satisfaction, we would say at least balance of probabilities.

The Attorney can be satisfied or not satisfied whatever is the finding of the court and by reference to facts as they exist before, at the time of or after the court’s decision up to the time of the – so in effect, your Honours, the determination of the court has no existence except to declare the factum to enable the process to continue. It does not finally declare that issue of whether or not there is an extradition objection in any way that could constitute res judicata. We submit, as we do in our submissions, it could be subject to collateral attack. We submit also that there could be a further extradition application which could, notwithstanding any determination that there was an extradition objection, still be recommitted for consideration under the same processes of the Act.

GLEESON CJ: Of course, the court does not get involved in the process at all unless its jurisdiction is invoked by somebody who does not like the decision of the Magistrate.

MR GRIFFITH: Of course that is so, your Honour, but what we say is that all the court does is give a tick to enable the administrative process to continue. It does not determine finally anything with respect to the process. It does not even determine the issue of the existence of an extradition objection. In his uncontrolled discretion, the Attorney can reach the same conclusion – it is not the same conclusion because the Attorney has to be satisfied or the opposite conclusion with respect to extradition objection, a reference to the evidence that was before the Magistrate, before the court, pre-existing those determinations or afterwards. So it is in no way controlling.

Your Honours, in paragraphs 29 and 30 of our submission we indicate why we say that this is not in a category of innominate exercise of judicial power. We submit, your Honours, that this attributes should be characterised as an exercise of administrative power and, therefore, not falling within the ambit of that which the Court has referred to as innominate. Your Honours, we discuss in our contentions, paragraphs 32 to 38, why we distinguish both Aston and Bayer, the two cases against us, and I have distributed to abbreviate the time in oral submissions a hand-up entitled “History” which your Honours would have which has a second attachment on the second page, “The Tax Boards of Review Cases”. Your Honours, I will not take you to the detail of that, other than to emphasise that pages 2 and 3 of that annexure are our submissions why decisions by reference to Taxation Boards of Review should not be regarded as determinative and we would say, indeed, that it is appropriate to regard tax cases as being of a particular example to perhaps be pursued in other circumstances, but not visiting in an informative way any assistance on the issue which is before the Court.

The first page of this hand-up are our submissions dealing with reference to history on the issues of characterisation and I would seek to adopt them without taking your Honours to them.

Your Honours, the next particular paragraph, which is crucial to our submissions is paragraph 38 and that really is the essence of how we put it. We say one goes not to the place of vesting for characterisation but you go to the character of the power concerned for the purpose of characterisation. That which is judicial may be vested in courts. We say it is the character of the power that determines whether it may be conferred on a court. We say the character of the power, therefore, cannot be determined by the fact it is conferred on a court.

GLEESON CJ: When a judge of the Equity Division of the Supreme Court of New South Wales gives judicial advice to a trustee, is that an exercise of judicial power.

MR GRIFFITH: Yes, your Honour it could be argued not, but, historically, because it is a tradition of power of equity, that is accepted. So we would say, for historical reasons, your Honour; certainly it would not be regarded as Chapter III judicial power, but it can be accepted as being a power of equity, it may be for historical reasons even Chapter III might embrace it. Similarly directions with respect to corporate matters, perhaps removing a trustee, all those incidents of trust, commonly would not pass the attributes for judicial power, but may be accepted firstly because in the State courts that is not required; secondly, your Honours, it is a traditional part of the role of equity. Similarly, parens patriae jurisdiction, your Honour, might be regarded as being of the same category, we accept that.

Your Honour, but what we say is to enable the vesting to control the characterisation is to reverse the analysis which should be rigorous to protect the Chapter III requirements that the Court more strongly, in recent decades, has come to vindicate than it had, for example, when there was discussion by the Court in Aston v Irvine and in Bayer.

Your Honours, that is not to deny that one can have regard to the nature of the body in which the function is vested. We seek to articulate that concept in paragraph 40 of our submissions. hat we seek to do, in effect, is to accept – it may be said that Justice Kitto in Reg v Spicer; Ex parte BLF (1957) 100 CLR 277 referred to the concept which we would embrace. Could I take your Honours to the passage at page 305. Justice Kitto said at about point 1 of the page:

It is true also that sometimes a grant of power not insusceptible of a judicial exercise is to be understood as a grant of judicial power because the recipient of the grant is judicial. But it by no means follows then whenever a power which has some similarity to an acknowledged judicial power is given to a judicial person or body there is a grant of judicial power. The reason for concluding in some cases that the judicial character of the repository imparts a judicial character to the power is simply that the former provides a ground for an inference, which in those cases there is nothing or not enough in other considerations to preclude, that the power is intended and required to be exercised in accordance with the methods and with a strict adherence to the standards which characterise judicial activities. That is not a necessary inference, however, in every case of this kind. The authorised act itself, though not inherently incapable of judicial performance, may be by nature more appropriate for administrative performance. The possible effects of the act when done upon persons, situations and events may be such as to suggest the probability that decisions to exercise or to refrain from exercising the power were intended to be made upon considerations of general policy and expediency alien to the judicial method. The circumstances in which the power is to be exercisable may be prescribed in terms lending themselves more to administrative than to judicial application. The context in which the provision creating the power is found may tend against a conclusion that a strictly judicial approach is intended. And there may be other considerations of a similar tendency. The problem in such a case ought therefore to be recognised as one of statutory construction, the task being to decide whether or not the provision should be understood as intending that in discharging the responsibility which possession of the power entails the person or body entrusted with it is to act strictly as a judge. The fact that the person occupies a judicial office, or that the body is or is not a judicial tribunal is only one matter to be considered. There may be many others.

Your Honours, we submit that this is a particularly strong case for characterisation that the nature of the power, as it were, deciding a particular factum on the chain for a completely administrative decision by the Attorney which, in its last paragraph (f), can be by an unrestrained discretion, whatever the other circumstances on which the Attorney is satisfied in the preceding five subparagraphs, is inherently something which characterises the process of review, in our submission, as part of a judicial function.

We then must deal with the extra step required for any success in this argument, namely, to demonstrate that the consequence of the vesting in the court being an improper vesting within the judicial arm under Chapter III of an administrative function, has consequences so far as the validity of the process of Part II is concerned. It is our submission that once we destroy the validity of the vesting under section 21 of powers of review in the court, the entire Part II of the Act, and for similar reasons dealing with the New Zealand Part III of the Act, we would say Part III – although that is not necessary for the Court to determine here – would fail for reasons of incapacity to be severed.

Your Honours, to abbreviate my submissions, could I hand your Honours a written submission on severance, dealing with Justice Dixon in the Banking Case and the authority of Chief Justice Latham in British Medical Association 79 CLR 201, which is cited against us. So far as the British Medical Association Case is concerned, the dictum of Chief Justice Latham, we say that it was particularly significant, in particular, at page 237, that his Honour could find that when the appeal provision was held invalid, nonetheless the Act could remain, was the fact that the appeal provisions, as one sees on the top of page 237, were inserted by an amending Act.

So that therefore it was possible to say, as his Honour did, that they were clearly severable from the rest of the Act because it could be inferred that as the Act originally had no appeal provision, Parliament might well have intended it to be maintained. With respect to his Honour Justice Dixon in the Banking Case, in our submission, his Honour’s statements there entirely support the conclusion that, with respect to this issue of review, it is not possible to say that a provision excised is invalid, does not affect the operation in the legislative intention as to what is left.

Annexed to our submissions is the second reading speech of the extradition Bill, 28 October 1987. May I take your Honours to page 1617, left‑hand column of that second reading speech. Here Mr Bowen, the Attorney, is explaining the difference between this Act and the prior Act. The prior Act enabled both judicial review under the Administrative Decisions (Judicial Review) Act and also review in the court. This was a matter of policy which concerned the legislature because of the delays that created in the conclusion of the extradition processes and he says:

The Bill contains an enhanced system of review and appeal procedures –

Perhaps whenever a politician uses the word “enhanced”, one might translate it as more likely restricted. But it goes on:

designed to ensure that the removal of decisions under the Bill from administrative review pursuant to the Administrative Decisions (Judicial Review) Act 1977 does not leave a person without recourse to proper review procedures.

In other words, Parliament intended there be review and intended that this judicial review should be in substitution for the previously available administrative review.

Although the system of review and appeal in this Bill is similar to that contained in the current Acts it imposes upon requesting countries seeking review new time limits –

as we have noted –

within which applications or appeals must be made.
It was only after lengthy deliberation that decisions taken under extradition laws were determined to be decisions which should be removed from the scope of the Judicial Review Act. Fundamentally the decision was forced upon us because fugitives were pursuing both their statutory rights to review under the extradition Acts and, often concurrently, their rights under the Judicial Review Act.

Then he refers to an example which came to this Court. I will read on further:

Another case shows that fugitives can, and have, made a habeas corpus application to the Supreme Court of a State, sought removal of those proceedings to the High Court, made application to the Federal Court pursuant to the Extradition Act and following determination by the Full Federal Court taken the matter back to a single judge of the Federal Court of Australia pursuant to the Judicial Review Act.

Then there is reference to:

The enormous cost to the Australian community of a review system which permits unnecessary duplication –

and to the delays. Then it says:

The Bill therefore establishes rights to review ‑ ‑ ‑

GLEESON CJ: In one case the proceedings took in excess of two years. Imagine that.

MR GRIFFITH: They have, your Honour, and one can count the months between judgments at each of the levels from the Magistrate to the primary judge to the appeal court judge. Perhaps I should add, your Honours, a matter of information, that Mr Cabal returned to Mexico this morning, so in so far ‑ ‑ ‑

GLEESON CJ: We read about that in the paper.

MR GRIFFITH: Yes, if your Honour pleases. It is clear from the last sentence, we say, of that paragraph and the entire column that what is plain is that Parliament intended that there be a review process and also, your Honour, in its desire to abbreviate what it regarded as abusive processes it collapsed judicial review and administrative review into one review which it chose to vest in a court. That is all very well from an efficiency point of view but, of course, cases such as Wakim indicate if it does not fit with Chapter III it cannot be done.

Your Honours, we say that deals with the argument as to inconvenience or history or what has been done hitherto. It is a question of whether that which is impermissible has been done. That is a matter of characterisation and our submission is that it must be characterisation of the power itself, not merely by saying in a trite phrase, “Because at this level it is vested in a court, it must be judicial”.

We accept in primary classification there may be scope to have regard to the body in which it is vested but inherently if it is exactly the same function as might have happened in Aston v Irvine or in the Bayer Case on a certain view of the facts, if that is the assumption, your Honours, we submit it must, by definition, be incompatible with the judicial power to say the colour change is chameleon-like on being uplifted when it is essentially the same function.

If that is the case, it would follow that the aim of the legislature expressed so plainly in the Act and as described by the Attorney on its introduction as a Bill into the House is an aim which is constitutionally unattainable. If that is the case the Court has really, we say, no choice but to vindicate the Constitution as your Honour, for example, Justice McHugh has said in Gould, as your Honour Justice Kirby has said in Eastman, and the consequences will follow.

It is not very difficult, your Honour, to provide that which is permitted under the Constitution. If the Act does not do so then that is the consequence of what has happened. So, your Honour, it is our submission that if the issue that we say inherent when we go to paragraph 28 of our submissions, and paragraph 38 of our submissions – particularly 38 – that it is a matter of the power itself controlling the characterisation rather than the body in which it is vested. Controlling at the level of two‑tier review we say it must be that this constitutional principle is to be vindicated by the orders which we seek.

Your Honours, those are our arguments on the merits of the issues. Can I mention the issue of bail, then?

Can I hand your Honour five sets of documents which comprise a proposed order for bail, and also for information the particular recognizance and variance of mortgage which your Honours need not be concerned with but will be required to effect the order of Justice – I am sorry, I did not realise we were keeping them to the closet of our bosom and not distributing them.

Your Honours have the order of Justice Kirby in volume 3 of the application book at page 375.

McHUGH J: Your client is out on bail at the moment, but ‑ ‑ ‑

MR GRIFFITH: He is not, your Honour. The bail has ended.

McHUGH J: It has ended, yes, but the form of the order, although it follows the form that has been made on quite a number of occasions in recent years, seems to be very defective. It is not directed to any gaoler. The form of order does not direct anybody or inform anybody out of the custody of which the person is to be taken. It does not identify any offence or proceeding which is the subject of the bail. It departs from the form of order made by Justice Fullagar in Re Cooper back in 1961. It departs from the form of orders made by the common law courts throughout the last century and those that are made by the High Court of Justice in England at the present time. I appreciate you have followed the number of orders, Dr Griffith.

MR GRIFFITH: Yes, one thing in its favour, your Honour, it has worked. But, your Honour, of course, this is an order not made pursuant to any Bail Act.

McHUGH J: I know, but it does not have to be.

MR GRIFFITH: That is our point, your Honour, yes.

McHUGH J: But if you turn up at the prison and you present this document to the governor, what does he say? He says, “This bail is in respect of what? I’ve got a warrant here that commits him”.

KIRBY J: What can he in fact say?

MR GRIFFITH: Your Honour, can you indicate why this will work? Mr Pasini presently is in the Federal Court in Melbourne.

McHUGH J: Yes.

MR GRIFFITH: Mrs Davies, the surety, is standing by to sign the mortgage document to extend it. The other document can have the blank filled in as soon as the date of the order of this Court is known. If the Court were to order that the Registrar be able to sign this order without having a verified transcript of the proceedings forthwith, in a practical way the only way it could be done, your Honour, before the weekend, this order will be efficacious to ensure that Mr Pasini can go home tonight.

McHUGH J: I know. He is out, he is not actually ‑ ‑ ‑

MR GRIFFITH: He is in, but he wants to get out.

McHUGH J: He is in, but he is not in one ‑ ‑ ‑

MR GRIFFITH: I appreciate your Honour’s comments, but as a practical way, if those matters are followed through, he will not get out, he will stay in.

McHUGH J: No, I know, but something is going to have to be done about these bail orders for the future, not really in extradition cases but, perhaps more importantly, in criminal cases.

MR GRIFFITH: Yes, we would entirely agree but, given the exigencies that Mr Pasini is in and would wish to get out, without asking the Court to indicate what its approach might be - for example, if it refuses special leave without reasons at the end of today, then this order would cease to have effect. But we would ask your Honours to make this order now subject to what my learned friend says and to direct that the Registrar be able to pass and enter it forthwith. It will be with the co-operation of the DPP authorities, your Honours, an order which can be implemented so far as further execution and recognisance by Mrs Davies extending the security by way of giving an instrument of mortgage be efficacious and ensure that Mr Pasini stays out and does not continue to be detained. So we would appreciate the Court’s indulgence as to that.

GLEESON CJ: Thank you. We will adjourn for a few minutes to consider the course we will take in this matter.

AT 2.26 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.28 PM:

GLEESON CJ: Mr Nettle, what did you wish to say concerning the argument that Dr Griffith put on the basis of the Canadian decision?

MR NETTLE: If the Court pleases, we submit that it is misdirected. It is important to understand that the decision in Shulman to which our learned friend refers, builds upon what was said in the prior decision of Kwok, a copy of which we hand up to each of your Honours, as is referred to in paragraphs 30 and following of the Shulman decision.

KIRBY J: This is the Court of Appeal in Canada, it is the Court of Appeal of Province.

MR NETTLE: Yes, it is, correct, your Honour. If I can ask, as it were, to hold the Kwok decision and to look at the Shulman decision which our learned friends gave you, and to direct attention to paragraph 30 of the Shulman decision, you will see it there said that:

Since 1992, provincial courts of appeal have a more central and important role to play in extradition matters.

As was explained in Kwok, if I condense all that, the affect of certain legislative amendments was to give to the extradition court what the Canadians are pleased to described as the habeas corpus jurisdiction, so that when the extradition court came to consider an extradition application it was, at the same time, statutorily armed with powers akin to those which a common law judge would exercise upon application for the writ of habeas corpus. It is because of that particular statutory regime which now applies per force of 1992 and 1999 amendments, that it is relevant, and only because of that regime that it is relevant upon an extradition application before a Canadian extradition judge to have regard the sorts of considerations to which judge would have regard if a prerogative or constitutional writ were being sought.

The short point is, and I am labouring it, it is an altogether different statutory regime with which the Canadians are concerned, to that which is operated under by our Federal Court, which is expressly limited to a very narrow role of reviewing by way of rehearing, confined to the evidence below, the decision of the Magistrate.

KIRBY J: Some of the language which her Ladyship has used relating to the entitlement of a court to defend its own process, expressed in a context which does not have our Chapter III, seem to be relevant to the way we would approach - - -

MR NETTLE: I understand the force of that, if I may say so, with great respect. Can I just pass through three paragraphs of this before I deal with it directly because in order to give a proper answer to your Honour it is necessary to understand the statutory regime.

If I may now take the Court to the Kwok decision. First to paragraph 39 of it. You will notice, your Honours, with respect, that the Parliament in Canada:

streamlined and simplified the extradition procedure by enacting s 9(3), which essentially collapses into one of the functions and powers previously exercised separately by the extradition judge and by the habeas judge -

into one. So, unlike our system where the habeas judge, if you will, of this Court, stands outside the sort of regime which is provided for in sections 19 and 21 of the Extradition Act, in Canada the two were put together by force of section 9(3), and thus ‑ ‑ ‑

GUMMOW J: These are provincial judges, are they?

MR NETTLE: That is correct, your Honour. Then it says:

Then, the powers of the committal judge were expanded to include all the powers that could previously be exercised only by a superior court judge sitting in habeas corpus review.

They are all repeated.

Then if your Honours go to paragraph 43 of the Kwok decision, there is the history of the matter chased through, at paragraphs 43 and following, telling the very long story of the way in which once in Canada it used be the case that these sorts of extraneous considerations could not be entertained upon an extradition application because the extradition judge, a bit like our Federal Court, did not have, if you like, these broader habeas powers, and how that changed by reason of the amendments and the realisation in Canada that the constitutional guarantee afforded by section 7 could be implemented in pursuance of that habeas power.

Now, Justice Kirby, to answer your question, if I may. It is submitted that the distinction is important for this reason. Just as it used to be the case in Canada, before these amendments were made, that a judge sitting in the extradition jurisdiction could not, by reason of the statutory embargo, have regard to extraneous considerations in the exercise of those powers, so, too, is it the case here, as the consequence of 19(5) and 21(6)(d), that first the Magistrate, as the Executive, and subsequently, the Federal Court on appeal, cannot have regard to those extraneous considerations when exercising that jurisdiction.

That, however, is not, of course, to deny that there is, over and above that, a prerogative or constitutional jurisdiction to supervise – in the first place, in the Supreme Courts of the States, by way of writ of habeas corpus, and also here, of course, by reason of 75(v) and 75(iii), giving to this Court, in a way which can never be detracted from otherwise than by amendment to the Constitution, all of the powers necessary by way of certiorari to quash, mandamus to compel, or injunction as against the Minister, as might be thought appropriate. If it were the case that application had been made to this Court for such constitutional prerogative relief, no doubt it could have been said that evidence beyond that which is permissible in the extradition regime could be viewed, because it is clear law in this case that in that supervisory jurisdiction this Court is not confined to the evidence below.

But so far from seeking to do that, this applicant, in the court below, and most particularly, in the Federal Court when the matter was argued upon appeal, expressly eschewed the invitation offered to him by the members of the Court of Appeal to seek that sort of relief in this Court. That is to say, during the course of the debate about whether or not it was permissible to have regard to this evidence, the judges of the Full Federal Court made the observation to applicant’s counsel that what he ought be seeking, if he sought to get into that sort of material, was prerogative or constitutional writ in the High Court ‑ ‑ ‑

KIRBY J: Now, where do we find that?

MR NETTLE: In the copies of the transcript of the proceedings before the ‑ ‑ ‑

KIRBY J: This is in the Full Court’s ‑ ‑ ‑

MR NETTLE: Your Honours do not have it. May we hand it up? Full Federal Court.

KIRBY J: Did the Full Court refer to this in its reasons? I do not recall ‑ ‑ ‑

MR NETTLE: No, because the application was not pursued. That is to say, notwithstanding the invitation to seek prerogative writ relief or constitutional writ relief, the applicant chose, for reasons which were never explained, to continue in this misguided attempt to have adduced in the course of the extradition proceeding evidence which could only be relevant upon prerogative writ relief application.

KIRBY J: Now, where in this transcript?

MR NETTLE: Page 9 is the first. The numbers are at the bottom – P-9.
Just under line 10:

HILL J: Where does the Court get the power to admit the evidence? I understand it’s highly desirable if the warrant were quashed that you know about it, but no doubt the High Court could do something under its constitutional jurisdiction, but how do we?

I shall not trouble you then, although it is worth reading, until page 135 which is the next – P-135 at the bottom. At line 10:

MR BURNSIDE: In our submission, the material should have been received on the basis that it tended to disclose an abuse of process of the court by suppressing . . .

WEINBERG J: Abuse of process of the Magistrates’ Court.
MR BURNSIDE: Both, because the material demonstrates that the process of nolle prosequi is, if I can give it that tag, began on 16 ‑ ‑ ‑

Then to page 136 at 23:

Mr Burnside: That’s true –

et cetera. Then at 31:

DOWSETT J: That really requires a much more precise definition of the function of the process before French J than you have so far undertaken.
HILL J: Not to mention the function of the Court of Appeal.

Meaning lower case “c”, lower case “a” of the Full Federal Court. Finally, at page 139, after a long exchange, at line 24:

DOWSETT J: All right.
HILL J: I mean, there’s no doubt that your client could, if need be, make an application to the High Court for a writ of prohibition against us. I wonder whether that isn’t a better course ‑ ‑ ‑

GUMMOW J: I am not sure about that. Justice Hill is not suggesting he exceeded jurisdiction.

MR NETTLE: No, I think “us” is not what his Honour either said or intended, your Honour.

KIRBY J: But can I ask you this, do you say that there is no power in the Federal Court if a proceeding before it emerges in the course of running to be an abuse of process of the Federal Court to stay the proceedings – to stop it.

MR NETTLE: No, clearly not.

KIRBY J: Not?

MR NETTLE: I mean, if, for example, someone were prosecuting a proceeding before the Federal Court and evidence, no matter how adduced, demonstrated that it was being prosecuted by way of an abuse, it would be within the power of the court to stay the proceeding but that is not what is sought here. It is not sought to stay the appeal because it is useless. It provides nothing to the applicant. What is sought is to go beyond that power which, with respect, undoubtedly exists ‑ ‑ ‑

KIRBY J: But it ‑ ‑ ‑

MR NETTLE: ‑ ‑ ‑and to argue that there is not only a jurisdiction but a power in the Federal Court, the source of which is unspecified other than in terms of some sort of vague implied or incorporated power too go and quash or restrain the Magistrate or the Executive from pursuing further the extradition proceeding. No, we do not for a moment contend, nor could ‑ ‑ ‑

KIRBY J: There is nothing in the general powers of the Federal Court that provide it with any general power of relief in such circumstances?

MR NETTLE: Absolutely not. I mean, it is a creature of statute. It has those powers which are given to it by statute and no more, other than those which are necessarily incidental thereto. This is what your Honours decided in Abebe.

KIRBY J: But can it not, as it were, allow the appeal and on this ground of the demonstration of the abuse of process then quash?

MR NETTLE: Because in this appeal, that is to say, one under section 21, it is confined by statute to the evidence and considerations for which section 21(6)(d) provides just as by analogy in Abebe the Federal Court was confined to the consideration of certain grounds on review of the immigration decision.

KIRBY J: And you say that any tendency to solve that problem should be restrained because there is a remedy under the Constitution to solve the problem, namely 75(v).

MR NETTLE: More than that. There is a bucket‑load of remedies at every point.

KIRBY J: That course is a remedy that is still available to the applicant.

MR NETTLE: And it has been pointed out to it, no less recently than when the application for special leave first came before your Honour Justice Gummow and others in Melbourne a few weeks back and even now, notwithstanding what was said about it then, notwithstanding what is said about it in the written submissions, no such application has been made and there is a reason why.

If your Honours please, might I, without being thought overly captious, point out to you that this still remains an application for special leave. It is not the hearing of the appeal and the facts, therefore, are, Justice Kirby, important it is submitted for this reason. If you look to the applicant’s written submissions at page 17, to the footnote which is there at footnote 56, the realisation dawns that all of this is a theoretical kite‑flying exercise. The last couple of lines at paragraph 60:

Such conduct occurs when a respondent seeks to uphold a decision under review even though that decision was procured by withholding information from the decision‑maker.

Note 56:

It is not presently submitted that that has occurred; merely that the Court should have received evidence which had the potential to allow such a submission to be made.

Now, it is respectfully submitted, what is this Court doing being asked to sit upon an application for special leave when even now it is not being submitted that this so‑called evidence, if admitted, would give rise to the sort of complaint which is suggested in paragraph 60 and that, it is submitted, is the answer to why, even now, notwithstanding the host of invitations which have been issued to make prerogative relief application it has still not been, because if it were, it would then have to meet the test of whether or not this application by the Mexicans for extradition was in truth fraudulent in the sense in which that was described by this Court, that is in the broad sense described by this Court for relief by way of certiorari in Craig v South Australia. To get something up on the grounds of quashing a decision which has been wrought by a fraud requires a considerable amount of evidence, obviously, with respect. This sort of material would not begin to go near the burden.

KIRBY J: Well, you say that, but as I understand it the principal charge against Mr Pasini is that he was, in a sense, an accomplice or involved in the offence of Mr Cabal and the principal offence of Mr Cabal was that he performed certain acts as the member of the banking committee and it is now, as it is said, accepted in Mexico that Mr Cabal was not a member of that committee and what is equivalent to a nolle prosequi has been filed in Mexico in relation to those proceedings involving Mr Cabal and, therefore, it is said the pack of cards against Mr Pasini, all but maybe one or two little cards, have been blown away, and that, therefore, the foundation on which you continue to press or Mexico continues to press for his extradition is demonstrated on its face to be a process without good faith.

MR NETTLE: No, with respect, wrong, and your Honour has been misled to that conclusion. First of all, the evidence was just hearsay evidence by Cabal’s own lawyers in Mexico that they had seen a document which constituted an internal memorandum of an officer within the prosecution department that he considered in respect of different offences on different days concerning different transactions, that there was not sufficient evidence to establish in respect of those transactions that Cabal was a member of the High Credit Committee on those days. It was not suggested, even less was there evidence, that anyone had ever said in respect of the transactions which formed the subject of the charges against Cabal on the days on which they are alleged to have occurred that Cabal was not then a member of the Credit Committee, nor was it, even more, ever said against anybody that someone had found evidence or even expressed the view in Mexico that a nolle prosequi ought be entered against Cabal in respect of the charges the subject of the extradition application. It was as tenuous and as far removed as I put it to your Honour and it is set out and dealt with in some degree of little detail, both in our written submissions and in the judgment of the Full Court.

KIRBY J: The question comes down to, as it seems to me, whether or not having the Canadian decision and having it raised before us as to what is the implied or inherent power of a Federal Court when it stumbles upon something which, with proper evidence, the evidence not simply being rejected and kept out, might demonstrate that there is a fundamental flaw in justice in the case, like the circumstances in Shulman, that the Federal Court of Australia is powerless and must go through, in a sense, a charade of justice dealing with it within its own paradigm, as I put it, and not be able to give relief out of Chapter III as a Chapter III court. Is that not an important question?

MR NETTLE: No, because your Honour has, with great respect, already decided it in Abebe. You have decided that it is within the constitutional competence of the Parliament to limit the jurisdiction of the Federal Court by depriving it of things at which it might otherwise have looked in deciding an application. Indeed, in that case you decided that it was competent for the Parliament to provide that the Federal Court might not even take into account the fact that the proceeding was the consequence of bad faith.

KIRBY J: Abebe was closely divided, was it not? It was four Justices to three. I was in the majority ‑ ‑ ‑

MR NETTLE: Quite.

KIRBY J: Could it be suggested that this is a matter which, if special leave were granted, should be committed to a Full Court to reconsider Abebe?

MR NETTLE: No, it could not, first, because it has only recently been decided; secondly, because, with all respect, it was undoubtedly right. The Federal Court is the product of statute. It has no more nor less than what is given to it by the Parliament.

GLEESON CJ: Thirdly, because Dr Griffith has expressly said he does not challenge Abebe.

MR NETTLE: Thank you. Having got to that ‑ ‑ ‑

GUMMOW J: Fourthly, because it does not look a very convenient vehicle having regard to footnote 56.

MR NETTLE: It does not. I will say no more about that. But, your Honours, moreover, if I can just say this, Abebe is good law, with great respect, first, because as a matter of principle it appears to be right; secondly, because in its application to this case it produces no injustice. There is the ability to review the Magistrate in the Federal Court; there is the ability to take action against the Minister at any point perhaps along the way; there is the ability to take action against the Minister when he comes to make a decision under section 22 pursuant to section 39B and there is the overriding and supervisory jurisdiction of this Court under 75(v) and 75(iii) which, if the burden gets too great, it can send down under 44(1) or 44(2) to the Federal Court.

Moreover, if, as your Honour postulates to me, circumstances were to arise in which one could see a glaring case, no doubt the Federal Court will say, “We’ll hold this now, applicant, while you exercise the opportunity which we afford you to go off and seek prerogative writ relief”. No such thing was sought. There is, to put it shortly, it is submitted, no inconsistency between our system and the sort of system which has evolved in Canada. The distinction is that, just as it used be the case in Canada that the prerogative writ jurisdiction and the extradition jurisdiction were kept separate, it is now the case in this country that that is still so but the relief which can be afforded to the applicant at the end of the day is every bit as broad providing it chooses the opportunity to take advantage of what is on offer. What clearly cannot be the case is that by a side wind and some sort of contrived and ‑ ‑ ‑

KIRBY J: We have had a lot of side winds this week.

MR NETTLE: Lots of side winds. But it is a fanciful submission, it is contended with all respect, to suggest that there is somewhere out in the ether some sort of implied or accrued jurisdiction which the Federal Court can seize upon without statutory warrant to enjoin the Executive and the Magistrate. Unless and until a statutory authority so to do is found, it has no such jurisdiction, albeit that this Court directly and it by remitter has the jurisdiction to do what is required in appropriate circumstances.

GLEESON CJ: Dr Griffith, did you want to respond to that?

MR GRIFFITH: Yes, I do, your Honour. Can I explain footnote 58. That was a desire of counsel presently appearing in the matter to discharge the ‑ ‑ ‑

KIRBY J: I cannot hear you, Dr Griffith.

MR GRIFFITH: That was a paragraph by present counsel appearing in the matter who did not appear below to discharge their ethical obligation not to sign off on fraud without having the facts there sufficient to do so. Our submission is that we were denied the opportunity for this evidence to be received. That is the issue whether the evidence should have been received.

KIRBY J: But it is suggested that the evidence is as tenuous as what somebody has heard or seen. It is not even a clear indication that this is the case.

MR GRIFFITH: Far from it, your Honour. We contend that the hand‑up on the committee membership evidence shows that the documents contain verified translations of official documents which did have the result, as is summarised in paragraphs 15 and 16 on the last two pages of this document, to show that it was the case established within judicial proceedings in Mexico ‑ ‑ ‑

KIRBY J: Under current doctrine you cannot bring evidence in this Court.

MR GRIFFITH: That is our complaint, your Honour. Why we had the footnote was to say we had not got the evidence in before the Full Court, so we cannot sign off here saying, “Yes, we say fraud”. What we say is that these documents establish a basis to do so and we should have been allowed to lead evidence down below, but it is not making it a hypothetical issue at this level. It is asserted that the evidence which was there, which was not merely just solicitors deposing; it was translations which are contained now in volume 1 of the application book, as is referred to in this summary, which support the contention as to the fact that it has been accepted in judicial proceedings in Mexico at the same relevant times as these charges were continuing on the basis that Mr Cabal was a member of the High Debt Committee, that nolle prosequis are entered in Mexico on the basis that it cannot be established that he was. That means that he was not and that is the issue which we ‑ ‑ ‑

KIRBY J: The suggestion that Mr Nettle has raised is that he was at a relevant, or the relevant, time.

MR GRIFFITH: With respect, your Honours, the times overlap, and it cannot be said, “He might have been one day and not another”. The nature of the evidence, as I understand it, is that generality throughout the relevant period, he either was or was not ‑ your Honour, he was the CEO of the bank, and the issue is whether he was or was not a member of the High Debt Committee.

KIRBY J: Why is the answer “not”? You have been given many opportunities, both in the Federal Court and it was raised on the first return of this application in Melbourne, to approach this Court which would have undoubted jurisdiction if you have evidence, real evidence. Instead of that you continue to trail a coat of possible suspected fraud that you have been unable to prove because you have been kept out of it, when there was always available to you the cardinal provision of the Constitution that allowed you to come here.

MR GRIFFITH: It is a question of what is appropriate, your Honour. One does not go by idly getting prerogative writs against Full Courts of the Federal Court.

GUMMOW J: I read footnote 56 as meaning that you could not have signed a statement of claim in such an action.

MR GRIFFITH: Your Honour, as counsel appearing here, I am not instructed sufficiently to sign it. The counsel appearing down below, your Honour, as I understand it, are. That is the allegation, your Honour, and this summary indicates the basis to it by reference not just to a solicitor’s affidavit, but by reference to translations of official documents which are contained, in part, in volume 1 of the application book. The allegation which is sought to be raised, your Honour, is that it is absence of honesty and good faith. We sought to lead the evidence. We were not allowed to get it in. We say for the purposes of consideration at this level, the issue is whether or not, on the assumption that there is such evidence as is contended and as was sought to be raised, the Court fell in error and said it would not look at it; it was a threshold issue. It is a matter for those who are immersed in the situation of the facts to determine when they do look at that evidence, whether it is sufficient to raise the allegation.

KIRBY J: But the Canadians do not have a provision equivalent to section 75(v). We do and ‑ ‑ ‑

MR GRIFFITH: Canada is a separate issue, your Honour. They do not have the same issue of Chapter III there. They can give judges non‑judicial powers. My learned friend says there is a distinction there because of that provision. That is a provision in our favour, with respect. Here we have the restrictions of Chapter III. We do require the purity of exercise of the judicial process and what this case is about, at this level on this issue, your Honours, if you please, is that it is the issue of whether or not we should have been permitted to lead the evidence when on 10 August by motion made in the face of the court we sought to do so on material which was ejected. The court would not receive it, therefore, the examination of what it said is not possible. It has not yet been received by the court. So it is not a question of saying now at this level, when you look at all the material that it is establishes it, or it does not. Our objection is that the court said they would not receive it. Your Honours, we do maintain that this matter should proceed in this way.

So far as prerogative writ is concerned, your Honour, we say that would be an inconvenient course, both because we say that it is inappropriate as an ordinary remedy in a situation such as this to have a prerogative writ against the Full Court or a single justice of the Federal Court. Secondly, your Honour ‑ ‑ ‑

KIRBY J: It need not be directed – it could be directed to the person who seeks to give effect to the Magistrate’s order.

MR GRIFFITH: Possibly so, your Honour.

KIRBY J: To the Minister or to any other person who is prosecuting.

MR GRIFFITH: The second matter is, your Honours, as matter of convenience, may as well hear it this way, because if we can seek a prerogative writ, we could still do so. So we are just back in Court as of right. We say it is appropriate that it be dealt with now, when it is before the Court.

KIRBY J: Well, on one view, all constitutional writs are discretionary. On another view, at least most of them, and certainly, certiorari, are.

MR GRIFFITH: Your Honour, we could deal with it another way.

KIRBY J: Therefore, you would run into possible arguments of the discretionary kind.

MR GRIFFITH: We could combine it with a writ claiming declarations, your Honour, against the Commonwealth, and be here on a double basis. We do not seek to use prolix procedures, but to get to the issue, and we say the issue now is fairly before the Court.

KIRBY J: But the other process allows you to go directly to the issue, whereas this process requires you to get to it indirectly by striking down a federal legislation which is within a definition that Parliament has fixed for arguably appropriate reasons – to make sure extraditions are not delayed by argument in this country of the merits of the prosecution’s case.

MR GRIFFITH: We accept that, your Honour, but if the case by compressing and collapsing the issue of administrative review to judicial review is impermissible vesting of non-judicial power in a court, then that is not constitutionally permitted. The Court, your Honour, must vindicate the Constitution, in our submission. It is not a question of the convenience of Parliament, your Honour, to abridge the process, and even to abridge the time to apply to this Court for special leave. If the Court pleases.

GLEESON CJ: Thank you, Dr Griffith. We will adjourn for a few minutes.

AT 2.56 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.57 PM:

GLEESON CJ: We do not need to hear you, Mr Solicitor.

In this matter the order of the Court is that the application for special leave to appeal is refused with costs. We will give our reasons in due course.

MR BENNETT: Your Honour, in relation to costs, I erroneously announced my appearance as appearing for an intervener. I notice that we are listed as the third respondent. We are nevertheless in substance an intervener because we intervened below and we are therefore joined as a respondent here. We take the view it is inappropriate to seek costs in those circumstances and, therefore, I do not seek any order as to costs.

GLEESON CJ: The applicant must pay the costs of the first respondent.

McHUGH J: The Commonwealth is a model litigant, is it, Mr Solicitor?

MR BENNETT: It always is, your Honour.

GLEESON CJ: We will adjourn.

AT 2.59 PM THE MATTER WAS CONCLUDED

[2001] HCATrans 314

Key Legal Topics

Areas of Law

Administrative Law

Constitutional Law

Civil Procedure

Legal Concepts

Judicial Review

Jurisdiction

Standing

Procedural Fairness

Abuse of Process

Costs