Peniche v Vanstone

Case [1999] FCA 1688

FEDERAL COURT OF AUSTRALIA

Peniche v Vanstone [1999] FCA 1688

EXTRADITION – challenge to validity of notices under s 16 of Extradition Act 1988 – applicant in custody pending completion of surrender proceedings under s 19.

INTERLOCUTORY APPLICATION – whether power to make interlocutory order having the effect of releasing the applicant pending hearing and determination of proceedings.

Extradition Act 1988, s 12, s 15, s 16, s 17, s 19
Federal Court of Australia Act 1976, s 23

Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 referred
Jackson v Sterling Industries Limited (1987) 162 CLR 612 applied
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 applied
Cardile v LED Builders Pty Ltd (1999) 162 ALR 294 referred

Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCA 169 distinguished
Minister for Immigration, Local Government and Ethnic Affairs v Montero (No 2) (1992) 26 ALD 158 distinguished
Tuaoi v Minister for Immigration and Multicultural Affairs [1999] FCA 123 distinguished
Tuiletufaga v Minister for Immigration and Multicultural Affairs [1998] FCA 992 distinguished
Omar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 607 distinguished
Pylka v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 483 distinguished
Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) 162 ALR 658 distinguished

Wu v Attorney-General of the Commonwealth (1997) 79 FCR 303 distinguished

Hempel v Moore (1987) 70 ALR 714 referred
Prevato v The Governor, Metropolitan Remand Centre (1986) 8 FCR 358 referred
Elmi v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 471 referred

CARLOS CABAL PENICHE v HON. AMANDA VANSTONE & ORS
V 121 of 1999

CARLOS CABAL PENICHE v HON. AMANDA VANSTONE & ORS
V 222 of 1999

KENNY J

MELBOURNE
3 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 121 OF 1999

BETWEEN:

CARLOS CABAL PENICHE
Applicant

AND:

HON. AMANDA VANSTONE
First Respondent

DAVID McDONNELL
Second Respondent

BRIAN BARROW M
Third Respondent

LISA HANNAN M
Fourth Respondent

JUDGE:

KENNY J

DATE OF ORDER:

3 DECEMBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.   The motion, notice of which is dated 8 November 1999, be dismissed.

2.   The applicant pay the first respondent’s costs of and incidental to that 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 222 OF 1999

BETWEEN:

CARLOS CABAL PENICHE
Applicant

AND:

HON. AMANDA VANSTONE
First Respondent

DAVID McDONNELL
Second Respondent

BARRY BRAUN M
Third Respondent

LISA HANNAN M
Fourth Respondent

JUDGE:

KENNY J

DATE OF ORDER:

3 DECEMBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.   The motion, notice of which is dated 8 November 1999, be dismissed.

2.   The applicant pay the first respondent’s costs of and incidental to that motion.

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

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Details
AGLC
Peniche v Vanstone [1999] FCA 1688
Case
[1999] FCA 1688
Decision Date

CaseChat Overview and Summary

In Peniche v Vanstone, the applicant, who had been arrested under a provisional arrest warrant issued under the Extradition Act 1988, challenged the validity of notices issued under section 16 of the Act. The applicant sought injunctive and declaratory relief, including an order for his release from custody. The court was tasked with determining the extent of its power to grant interlocutory relief in the form of an order for the applicant’s release.

The central legal issue before the court was whether it had the authority to grant interlocutory relief, specifically an order for the applicant's release, in the form sought by the applicant. The court examined the statutory basis for its power to grant such relief, particularly under section 23 of the Federal Court of Australia Act 1976. The applicant argued that the court's power to grant interlocutory relief was broad and should encompass the relief sought. The respondent, on the other hand, contended that the court's power did not extend to granting relief of the kind sought, as it would not have the power to grant final relief of that nature and the Act had excluded any power to grant relief in the nature of bail.

The court determined that while it had the power to grant some form of interlocutory relief, it did not extend to the specific relief of releasing the applicant from custody under the circumstances presented. The court found that the Act did not confer any power to grant relief in the nature of bail. Consequently, the court dismissed the motion and ordered that the applicant pay the respondent’s costs associated with the motion.

Orders

Orders of the court

1. The motion, notice of which is dated 8 November 1999, be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to that motion.

Background

Background to the litigation

The applicant submits that there are serious issues to be tried in the relevant proceedings; and that the balance of convenience favours the grant of an interlocutory order for release. In his affidavit, Mr Lavery, the applicant’s solicitor, deposes that some of the factors relevant to the Court’s exercise of discretion would be:(i)The length of the applicant’s incarceration;(ii)The conditions under which the applicant is being detained in a maximum security prison;(iii)The psychological effect of the detention upon the applicant, his wife and their children; and(iv)The fact that the applicant is willing to subject himself to a form of highly restrictive home monitoring which would provide the appropriate assurance that he will remain within the jurisdiction.As pre-existing Court commitments made it difficult to fix dates for a hearing which would enable all the issues raised by this application to be dealt with at the one time, I fixed 23 November 1999 as the date for hearing argument on the question, whether the Court’s power to grant interlocutory relief includes the power to make an order of the kind sought by the applicant. On that day, the further hearing of the application was adjourned to 30 November. Owing to illness on my part, however, the further hearing did not recommence until today.background In my reasons for judgment in Peniche v Vanstone [1999] FCA 916, I set out the circumstances in which these proceedings come before the Court. It suffices to note that in the circumstances set out, Mr Cabal was arrested in Australia on 11 November 1998, pursuant to a provisional arrest warrant (“PAW”) issued on 10 November 1998, under s 12 of the Extradition Act 1988 (“the Act”), upon the application of the United Mexican States (“Mexico”). Further, in the circumstances set out, on 19 February 1999, Mr Cabal was purportedly arrested again and brought before a magistrate, following the issue of a second PAW for his arrest on 16 February 1999. These proceedings challenge the validity of notices issued under s 16 of the Act. In proceeding V 121 of 1999, the applicant challenges the validity of a s 16 notice issued in respect of him on 7 January 1999. In proceeding V 222 of 1999, he challenges the validity of a s 16 notice issued in respect of him on 30 March 1999. In both proceedings, the applicant ultimately seeks injunctive and declaratory relief, and relief in the nature of mandamus, certiorari and prohibition. In particular, the applicant seeks orders in relation to his release, including an order restraining the first respondent (and, in V 222 of 1999, the first, third and fourth respondents) from taking any steps under the Act in consequence of the challenged notice having been given, including continuing to remand the applicant in custody. He also seeks an order requiring the second respondent to release him from custody. the extent of the court’s power to grant interlocutory relief The Court has, plainly enough, power to grant at least some of the relief ultimately sought by the applicant in the event that he establishes his case. The power to grant interlocutory relief of the kind now sought derives to a large extent from s 23 of the Federal Court of Australia Act 1976. (The applicant did not contend that this Court has, independently of statute, by common law, any jurisdiction to admit to bail of the kind discussed in R v Spilsbury [1898] 2 QB 615 at 622.) Section 23 provides: The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.The first respondent submits that, although the Court’s power to grant interlocutory relief is broad, that power does not extend to the grant of relief of the kind now sought by the applicant. That is because, so the first respondent submits, the Court would not have power to grant final relief of that nature; and the Act has excluded any power that the Court would otherwise have to grant relief in the nature of bail.

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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