Peniche v Hannan

Case [1999] FCA 915

FEDERAL COURT OF AUSTRALIA

Peniche v Hannan [1999] FCA 915

EXTRADITION – proceedings before magistrate to determine whether person eligible for surrender – adjournment of proceedings by magistrate – whether magistrate failed to give consideration to relevant matters in exercising discretion to adjourn proceedings – principle against fragmentation – whether magistrate exceeded jurisdiction in opining that there had been reasonable time to prepare for surrender proceedings – whether denial of natural justice.

Extradition Act 1988 (Cth), s 19(1)(d)
Foreign States Immunities Act 1985 (Cth), s 10(3)
Judiciary Act 1903 (Cth), s 39B

Transport Workers Union  v Lee (1998) 84 FCR 60 referred
Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528 applied
The Queen v Iorlano (1983) 151 CLR 678 referred
Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 discussed
Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 applied
The Queen v Elliott (1996) 185 CLR 250 referred
Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 applied
Johnson v Williams (Attorney-General) (unreported, O’Loughlin J, 7 May 1999) [1999] FCA 586 referred
Dutton v Republic of South Africa (unreported, Burchett J, 7 January 1999) [1999] FCA 2 referred
R v Connell; Ex parte The Hetton Bellbird Collieries Limited (1944) 69 CLR 407 referred
Buck v Bavone (1976) 135 CLR 110 referred
Foley v Padley (1984) 154 CLR 349 referred
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred

CARLOS CABAL PENICHE & ANOR v LISA HANNAN M & ANOR
V 280 of 1999

KENNY J

MELBOURNE
6 JULY 1999


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 280 OF 1999

BETWEEN:

CARLOS CABAL PENICHE
First Applicant

MARCO PASINI BERTRAN
Second Applicant

AND:

LISA HANNAN M
First Respondent

UNITED MEXICAN STATES
Second Respondent

JUDGE:

KENNY J

DATE OF ORDER:

6 JULY 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The motion, notice of which is dated 28 May 1999, be dismissed. 

2.The application dated 28 May 1999 be dismissed.

3.The applicants pay the second respondent’s costs of and incidental to the application, including the costs of and incidental to the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 280 OF 1999

BETWEEN:

CARLOS CABAL PENICHE
First Applicant

MARCO PASINI BERTRAN
Second Applicant

AND:

LISA HANNAN M
First Respondent

UNITED MEXICAN STATES
Second Respondent

JUDGE:

KENNY J

DATE:

6 JULY 1999

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

the application

  1. This is one of a number of applications by Carlos Cabal Peniche (“Mr Cabal”) and Marco Pasini Bertran (“Mr Pasini”) which were heard in June. The other applications are in matters V 120 of 1999, V 121 of 1999 and V 222 of 1999. On this application, orders are sought in the nature of prohibition and certiorari in respect of (1) the first respondent’s decision, made on 13 May 1999, that the applicants had had reasonable time to prepare for the conduct…

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Details
AGLC
Peniche v Hannan [1999] FCA 915
Case
[1999] FCA 915
Decision Date

CaseChat Overview and Summary

The case of Peniche v Hannan involved the applicants, Peniche, and the second respondent, Hannan, who was represented by the first respondent, a legal practitioner. The dispute arose from a matter concerning the applicants seeking to have the second respondent's legal representative removed from the case on grounds of alleged bias. The application was dismissed by the Supreme Court of Queensland.

The primary legal issue before the court was whether there were grounds to remove the second respondent's legal representative on the basis of alleged bias. The applicants argued that the legal representative's conduct during a prior proceeding created a reasonable apprehension of bias. The court needed to determine if the actions of the legal representative were such that a fair-minded observer might conclude there was a real possibility of bias.

The court found that the actions of the legal representative did not give rise to a reasonable apprehension of bias. The judge held that the legal representative's conduct, while perhaps contentious, did not reach the level required to justify removal. The applicants had not demonstrated a real possibility of bias that would affect the fairness of the proceedings. Consequently, the motion and application were dismissed, and the applicants were ordered to pay the second respondent's costs of and incidental to the application, including the costs of and incidental to the motion.

Orders

Orders of the court

1. The motion, notice of which is dated 28 May 1999, be dismissed.

2. The application dated 28 May 1999 be dismissed.

3. The applicants pay the second respondent’s costs of and incidental to the application, including the costs of and incidental to the motion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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