Peniche v Vanstone

Case [1999] FCA 916

FEDERAL COURT OF AUSTRALIA

Peniche v Vanstone [1999] FCA 916

EXTRADITION – challenge to validity of notices under s 16 of Extradition Act 1988 – effect of stays of arrest warrants in Mexico – meaning of warrants “in force” – whether opinion that extraditable persons could be reasonably held – validity of requests made by requesting country – whether only one request at a time permissible – whether requesting country under duty to disclose stays and limitations problems – whether breach of natural justice regarding refusal of access to extradition documentation.

INTERLOCUTORY INJUNCTIONS – whether serious question to be tried – balance of convenience – principle against fragmentation of proceedings.

Extradition Act 1988 (Cth), s 6, s 16, s 19
Extradition (United Mexican States) Regulations 1991, reg 4
Treaty on Extradition between Australia and the United Mexican States, Arts 2, 8, 16, 17 and 19(4)

American Cyanamid Co v Ethicon Ltd [1975] AC 396 referred
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 referred
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 referred
R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 referred
Foster v Attorney-General (Cth) (1997) 97 A Crim R 560 discussed
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred
L. Joseph Pty Ltd v Gray (1939) 56 WN (NSW) 190 discussed
Pikor v Smith [1982] Tas. R 240 discussed
Gray v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351 discussed
Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 referred
Zoeller v Federal Republic of Germany (1989) 23 FCR 282 referred
R v Weil (1882) 9 QBD 701 cited
Harris v Attorney-General (Cth) (1994) 52 FCR 386 applied
Annetts v McCann (1990) 170 CLR 596 referred
May v Deputy Commissioner of Taxation (unreported, Branson, Finn and Kenny JJ, 21 May 1999) [1999] FCA 287 referred
Kioa v West (1985) 159 CLR 550 referred
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 applied
South Australia v O’Shea (1987) 163 CLR 378 referred
Cornall v AB (A Solicitor) [1995] VR 372 referred
Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 followed
The Queen v Iorlano (1983) 151 CLR 678 referred
Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 followed
The Queen v Elliott (1996) 185 CLR 250 referred
Seymour v Attorney-General (Cth) (1984) 4 FCR 498 referred
Johnson v Williams (Attorney-General) (unreported, O’Loughlin J, 7 May 1999) [1999] FCA 586 followed
Dutton v Republic of South Africa (unreported, Burchett J, 7 January 1999) [1999] FCA 2 followed
Bullock v Federated Furnishing Trades Society of Australasia (No. 1) (1985) 5 FCR 464 referred

MARCO PASINI BERTRAN v HON. AMANDA VANSTONE & ORS
V 120 of 1999

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
6 JULY 1999


IN THE FEDERAL COURT OF AUSTRALIA

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AGLC
Peniche v Vanstone [1999] FCA 916
Case
[1999] FCA 916
Decision Date

CaseChat Overview and Summary

In the matter of Peniche versus Vanstone, the applicant sought interlocutory injunctions, with notice given as per paragraph 3 of the applicant's notice of motion dated 28 May 1999. The case was heard in a relevant Australian court, where the central issue revolved around the merits and advisability of granting such injunctions. The applicant's motion aimed to restrain the first respondent from carrying out certain actions that the applicant claimed would cause significant harm. The applicant argued that without an immediate intervention, irreparable damage would befall their interests, and thus, the injunctions were necessary.

The court was tasked with determining whether the applicant had satisfied the stringent criteria required to grant interlocutory injunctions. The legal issues at hand included whether the applicant had established a serious question to be tried, whether the balance of convenience favoured the granting of the injunctions, and whether the applicant would suffer irreparable harm if the injunctions were not granted. Additionally, the court had to consider whether the applicant had demonstrated a sufficient probability of success on the merits of the case. These considerations were pivotal in guiding the court's decision.

Upon careful deliberation, the court found that the applicant had not adequately substantiated the necessity for the interlocutory injunctions. The applicant failed to convincingly demonstrate a serious question to be tried and did not sufficiently establish that the balance of convenience favoured granting the injunctions. Furthermore, the court concluded that the applicant had not shown a significant risk of irreparable harm if the injunctions were not granted. Consequently, the court dismissed the application for interlocutory injunctions and ordered that the applicant pay the first respondent's costs of and incidental to the said application. This outcome underscores the high threshold that must be met for such relief to be granted in the Australian legal context.

Orders

Orders of the court

1. Application for interlocutory injunctions, notice of which was given by par 3 of the applicant’s notice of motion dated 28 May 1999, be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the said application.

1. Application for interlocutory injunctions, notice of which was given by par 3 of the applicant’s notice of motion dated 28 May 1999, be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the said application

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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