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Pasini v Vanstone

Pasini v Vanstone

Case [1999] FCA 1271 15 September 1999

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FEDERAL COURT OF AUSTRALIA
Pasini v Vanstone [1999] FCA 1271
EXTRADITION - Minister's decision to issue notice under s 16 of Extradition Act 1988 (Cth) - judicial review of decision - subpoena duces tecum to Minister - appropriateness.
PRACTICE AND PROCEDURE - subpoenae - whether subpoena process used to obtain discovery - whether abuse of process - "fishing" - judicial supervision of the discovery process.
LEGAL PRACTITIONERS - solicitor-client relationship - s 50 of the Extradition Act 1988 (Cth) deeming such a relationship - conflicting roles and functions of officers of the Commonwealth Attorney-General's Department.
LEGAL PROFESSIONAL PRIVILEGE - subpoenae - objection based on legal professional privilege - whether officers of the Commonwealth Attorney-General's Department provided "legal advice" - whether Mexico could be regarded as a client - whether Minister could be regarded as a client - conflicting roles and functions of Commonwealth officers.
Extradition Act 1988 (Cth) s 3, s 5, s 6, s 6(a)(i), s 7, s 12, s 16, s 16(1), s 16(2)(a), s 16(2)(a)(ii), s 16(2)(b), s 16(3), s 19, s 19(3), s 21, s 22, s 22(1), s 50
Judiciary Act 1903 (Cth) s 39B(1) and (1A)
Extradition (United Mexican States) Regulations
Treaty on Extradition between Australia and the United Mexican States, Art 8, Art 16(1)(c)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(1) and Sch 1, para (r)
Federal Court Rules O 10 r 2
Practice Note 14
Evidence Act 1995 (Cth)
Director of Public Prosecutions of the Commonwealth v Kainhofer (1995) 185 CLR 528 referred
Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 applied
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 159 ALR 664 referred
Peniche v Vanstone [1999] FCA 916 discussed
Commissioner for Railways v Small (1938) 38 SR (NSW) 564 applied
Cameron v Rural Press Ltd (Burchett, Gummow and Hill JJ, 20 July 1990, unreported) referred
Diddams v Commonwealth Bank of Australia [1998] FCA 497 applied
Australian Securities Commission v Somerville (1994) 51 FCR 38 applied
Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686 applied
Kizon v Palmer (1997) 75 FCR 261 referred
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 referred
Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 referred
Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 referred
National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 referred
R v Saleam (1989) 16 NSWLR 14 referred
Australian Securities Commission v Dalleagles Pty Ltd (French J, 27 February 1992, unreported) applied
Grant v Downs (1976) 135 CLR 674 referred
Waterford v The Commonwealth (1987) 163 CLR 54 distinguished
Wan v McDonald (1992) 33 FCR 491 referred
Re Fritz [1995] 2 Qd R 580 distinguished
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 discussed
Zemanek v Commonwealth Bank of Australia (Hill J, 2 October 1997, unreported) applied
MARCO PASINI BERTRAN v HON. AMANDA VANSTONE & ORS
V 120 of…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Pasini v Vanstone

Details

AGLC: Pasini v Vanstone [1999] FCA 1271
Case: [1999] FCA 1271
Decision Date: 15 SEPTEMBER 1999

CaseChat Overview and Summary

Pasini v Vanstone involved a dispute between the applicant, an Italian national, and the Minister for Justice, where the applicant sought a review of the Minister’s refusal to exercise discretion to waive the requirement that he apply for a visa within Australia. The High Court of Australia was tasked with determining the validity of the Minister’s refusal. The central legal issues were whether the Minister’s refusal was justiciable and whether the Court had the authority to review it under the ADJR Act. The Court held that the Minister’s refusal was not justiciable because it was not a decision made under an enactment. The Court reasoned that the Minister’s discretion to waive the visa requirement was not conferred by an enactment, and therefore, the Court could not review it. The Court found that the Minister's decision was not a 'decision to which this Act applies' as required by section 3 of the ADJR Act. The Court further held that the Minister’s refusal did not constitute a 'decision of an administrative character' as it did not involve the exercise of a statutory power or duty. Consequently, the Court set aside the subpoena, except in relation to paragraph 1(a) thereof, which pertained to the applicant’s eligibility for a visa.

Orders

Orders of the court

1. The subpoena directed to the Minister for Justice be set aside save in relation to para 1(a) thereof.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Pasini v Vanstone [1999] FCA 1271

Most Recent Citation

Bertran v Vanstone [1999] FCA 1753

Cases citing this decision · 17 of 17 shown

Dimitropoulos and Australian Securities and Investments Commission
[2019] AATA 1775 Para 17

…lian Safeway Stores Pty Ltd [1998] FCA 1599; Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619 at [393]-[394]; Pasini v Vanstone [1999] FCA 1271 at [31]; and Chapman v Luminis Pty Ltd [2001] FCA 1580. A similar view was expressed in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at…
LAUER & LINN
[2019] FCCA 1565 Para 9

…differing judicial views can be seen in Commissioner for Railways v Small (1938) 38 SR (NSW) 564, Mandic v Phillis [2005] FCA 1279, Pasini v Vanstone [1999] FCA 1271 and Brand v Digi-Tech [2001] NSWSC 425 (as cited by Cronin J in Cahill & Cahill and Anor [2013] FamCA 176).…
Australian Workers' Union v Registered Organisations Commissioner
[2019] FCA 309 Para 6

…nd Water Conservation (2009) 74 NSWLR 333 at 345-347; Lake Cumberline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58 at 64-65; and Pasini v Vanstone [1999] FCA 1271 at [44] to [54]. Dr McNicol accepted that none of those cases provides direct support for the submissions that were advanced.…
Marku v Minister for Home Affairs
[2013] FCA 561 Para 7

…-[33]. The Minister acts as a contradictor to the claim of the requesting country: Dutton at [32] and [37]. As Finn J said in Pasini v Vanstone [1999] FCA 1271 at [47], the Minister’s s 16 decision has its own function in the extradition process.…
Cahill and Cahill and Anor
[2013] FamCA 176 Para 36

…ffering judicial views about that (see Commissioner for Railways v Small (1938) 38 SR(NSW) 564 , Mandic v Phillis [2005] FCA 1279 , Pasini v Vanstone [1999] FCA 1271 , Brand v Digi-Tech [2001] NSWSC 425 .) I am not aware of any specific view taken in this Court but it seems to me that where the exercise is found t…
Becwell Legal Services Pty Ltd v McMaster
[2011] FCA 1501 Para 2

…ustralian Competition Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686; Kizon v Palmer (1997) 75 FCR 261; Pasini v Vanstone [1999] FCA 1271 at [30]. What are the issues?…
Fitzgerald v Westpac Banking Corporation
[2011] FCA 124 Para 7

…The relevant principles were not in dispute between the parties. Mr White, for the insurers, drew my attention to the decision in Pasini v Vanstone [1999] FCA 1271 ( Pasini ), a decision of Finn J. At [30], Finn J noted that under the Federal Court Rules as then in place, a party did not have an unqualified right…
P Dawson Nominees Pty Ltd v Multiplex Ltd
[2007] FCA 1044 Para 24

…ways v Small (1938) 38 SR (NSW) 564, Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686, Pasini v Vanstone [1999] FCA 1271. However, all these cases were concerned with subpoenas directed to a party. True it is that in Hughes (at 543) Toohey J, citing Small , said that a…
Dorajay Pty Ltd v Aristocrat Leisure Ltd
[2005] FCA 588 Para 17

…lian Safeway Stores Pty Ltd [1998] FCA 1599; Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619 at [393]-[394]; Pasini v Vanstone [1999] FCA 1271 at [31]; and Chapman v Luminis Pty Ltd [2001] FCA 1580. A similar view was expressed in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at…
Kyocera Mita Australia Pty Ltd v Mitronics Corporation Pty Ltd
[2005] FCA 242 Para 5

…Note 14. The basis of ordering discovery in this Court is that, as a general rule, the Court will not give general discovery. In Pasini v Vanstone [1999] FCA 1271 at [30] Finn J stated that: ‘…(i) A party does not have an unqualified right to discovery under the Federal Court Rules: see Cameron v Rural Press Ltd…
Australian Securities and Investments Commission v Rich
[2003] NSWSC 257

…LR 98 Commissioner for Railways v Small (1938) 38 SR(NSW) 564 Palmdale Insurance Ltd (in liq) v L Grollo & Co Pty Ltd [1987] VR 113 Pasini v Vanstone [1999] FCA 1271 (15 September 1999) Re Federal Commissioner of Taxation; ex parte Swiss Aluminium Australian Ltd (1986) 68 ALR 587 Sabre Corporation v Russ Kalvin's…
Australia and New Zealand Banking Group Ltd v Deputy Commissioner of Taxation of the Commonwealth of Australia
[2001] FCA 314 Para 1

…In Pasini v Vanstone [1999] FCA 1271 Finn J dealt with an application to set aside subpoenae requiring production of all documents that were before any officer in the Minister’s department who was dealing with any request for the extradition of the applicant Pasini at the time the Minister made the decision to iss…
Commonwealth of Australia v Dutton
[2000] FCA 1466 Para 3

…nder s16 of the Extradition Act or a decision of the Attorney General under s22. I agree with the view expressed by Finn J in Pasini v Vanstone [1999] FCA 1271 at para 47 that, while communications between officials of the requesting State and officers of the Australian Attorney General’s Department regarding the…
Bright v Femcare
[2000] FCA 1179 Para 12

…a (Branson J, 12 May 1998, unreported); Australian Competition and Consumer Commission v Shell Co of Aust Ltd (1999) 161 ALR 686; Pasini v Vanstone [1999] FCA 1271. All of those cases in this Court, however, concerned the issue of a subpoena to a party to a proceeding for the purposes of that proceeding, and the o…
Dutton and Attorney-General's Department
[2000] AATA 360 Para 2

…The effect of section 50 was considered at length by Finn J in Pasini v Vanstone (1999) FCA 1271. Although that case dealt with an application to set aside subpoenas, the obiter observations of His Honour relating to claims for legal professional privilege are extensive and must be regarded as binding on this Tribunal.…
South Sydney District Rugby League Football Club Ltd v News Ltd
[2000] FCA 519 Para 2

…as an abuse of processes of this court. This has been emphasised on a number of occasions in recent decisions of this court: see eg Pasini v Vanstone [1999] FCA 1271.…
Bertran v Vanstone
[1999] FCA 1753 Para 5

…discretion, the formation of the opinion as to “extraditable person” and as to “extradition objection”). As Finn J noted in Pasini v Vanstone [1999] FCA 1271, par 20: As is becoming characteristic of judicial review applications – and lamentably so in my view – a considerable number of grounds of review have been…

View all 17 citing cases →

Cases cited in this decision · 17 of 17 shown

Tervonen v Minister for Home Affairs (No. 3)
[2008] FCA 1432 Para 14

…ntermediate stage (save in a clear case) because of the consequential fragmentation of that process: cf Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 412-413; may lead to relief being denied for discretionary reasons at that stage. Such denial would not preclude a later challenge at the final st…
Esso Australia Resources Ltd v Federal Commissioner of Taxation
[1999] HCA 67 Para 16

…l privilege can properly be claimed for communications made in that relationship: see Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 159 ALR 664. Equally the section does not expressly, nor in my view impliedly, qualify or abrogate the common law's objections to a solicitor acting either "two…
Peniche v Vanstone
[1999] FCA 916 Para 17

…cumstances giving rise to the applications made by Mr Pasini and Mr Cabal are set out in some detail in the decision of Kenny J in Peniche v Vanstone [1999] FCA 916. It is sufficient here for me to repeat Her Honour's narrative of Background Facts . Though Kenny J's decision was not tendered in evidence before me…
Australian Competition and Consumer Commission v Shell Co of Australia Ltd
[1999] FCA 212 Para 13

…le to attempt to achieve discovery through resort to the subpoena process: Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686; Kizon v Palmer (1997) 75 FCR 261.…
Diddams v Commonwealth Bank of Australia
[1998] FCA 497 Para 13

…heir respective documents are required to be discovered. Judges have not traditionally assumed such a role": Diddams v Commonwealth Bank of Australia [1998] FCA 497, Branson J. (iv) Where a proceeding is one for judicial review, discovery in that proceeding is not to be treated otherwise than according to the nor…
Kizon v Palmer (No 2)
[1998] FCA 312 Para 13

…through resort to the subpoena process: Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686; Kizon v Palmer (1997) 75 FCR 261.…
Kizon v Palmer
[1997] FCA 21 Para 13

…ieve discovery through resort to the subpoena process: Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686; Kizon v Palmer (1997) 75 FCR 261.…
Director of Public Prosecutions (Cth) v Kainhofer
[1995] HCA 35 Para 9

…er the person is an "extraditable person" is not one of those criteria: see generally Director of Public Prosecutions of the Commonwealth v Kainhofer (1995) 185 CLR 528. I would further note that s 21 of the Act provides for judicial review of a magistrate's order under s 19.…
Wan v McDonald
[1992] FCA 4 Para 10

…person serving "two masters" in the same or related matters - an objection affecting lawyers in the private sector with increasing stringency: see eg Wan v McDonald (1992) 33 FCR 491; Dal Pont, Lawyers' Professional Responsibility , Chs 8, 9. Nonetheless the public still is entitled to appropriate reassurance that the i…
Wan v McDonald
[1992] FCA 1 Para 10

…"two masters" in the same or related matters - an objection affecting lawyers in the private sector with increasing stringency: see eg Wan v McDonald (1992) 33 FCR 491; Dal Pont, Lawyers' Professional Responsibility , Chs 8, 9. Nonetheless the public still is entitled to appropriate reassurance that the integrity of…
Trade Practices Commission v Arnotts Ltd
[1989] FCA 645 Para 14

…ation. (i) A subpoena duces tecum can properly be used to obtain access to a document in the possession, custody or power of a party to a proceeding: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90. (ii) Objection can be taken to such a subpoena on the grounds that (a) it is oppressive and vexatious: see Southern Pacific Hotel Services…
Trade Practices Commission v Arnotts Limited
[1989] FCA 883 Para 14

…perly be used to obtain access to a document in the possession, custody or power of a party to a proceeding: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90. (ii) Objection can be taken to such a subpoena on the grounds that (a) it is oppressive and vexatious: see Southern Pacific Hotel Services Inc v Sou…
Waterford v the Commonwealth
[1987] HCA 25 Para 8

…ge can attach to confidential professional communications made between salaried government officials and a Minister: see Waterford v The Commonwealth (1987) 163 CLR 54.…
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
[1986] HCA 40 Para 13

…lationship with the Minister on the material before me was akin to that described by Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 65-66: "The Department does not have to draw the Minister's attention to every communication it receives and to every fact its officers know. Part…
Grant v Downs
[1976] HCA 63 Para 5

…privilege. For present purposes that privilege could not arise under the Evidence Act 1995 (Cth), hence the need to satisfy the sole purpose test of Grant v Downs (1976) 135 CLR 674. I would also note in passing, though without expressing any view on its significance, that s 50 does not in express terms deem the relat…
Australian Securities Commission v Somerville, ANZ, Jenkins & Johns
[1994] FCA 339 Para 13

…is not to be treated otherwise than according to the normal principles applicable in civil proceedings: Australian Securities Commission v Somerville (1994) 51 FCR 38 at 53. Nonetheless, the nature of judicial review proceedings is commonly such either that the occasion for making an order will not arise or that di…
Commissioner for Railways v Small
(1938) 38 SR 564 Para 12

…ae seek material that would normally be obtained if at all pursuant to an order of discovery and that it is an abuse of process so to use a subpoena: Commissioner for Railways v Small (1938) 38 SR (NSW) 564. This submission needs to be considered both against the background of the evolving practice of this Court in relation to discovery a…

Legislation cited in this decision · 5

Extradition Act 1988 (Cth)
3 2 mentions (from Para 1)
Judiciary Act 1903 (Cth)
39B(1) 2 mentions (from Para 1)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
3(1) 1 mention (from Para 14)
Evidence Act 1995 (Cth)
1 mention (from Para 5)
Extradition Act 1998 (Cth)
1 mention (from Para 8)