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 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

FINN J

CANBERRA (HEARD IN MELBOURNE)

15 SEPTEMBER 1999

THE COURT ORDERS THAT:

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

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

THE COURT ORDERS THAT:

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

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

THE COURT ORDERS THAT:

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

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

V 120 of 1999:

REASONS FOR JUDGMENT

1                     The applicants in these three proceedings, Carlos Cabal Peniche ("Mr Cabal") and Marco Pasini Bertran ("Mr Pasini"), are the subjects of extradition requests made by the United Mexican States ("Mexico").  The first respondent, the Honourable Amanda Vanstone ("the Minister") acting in place of the Attorney-General has issued (a) two notices under s 16 of the Extradition Act 1988 (Cth) ("the Act") in respect of the two extradition requests made in relation to Mr Cabal;  and (b) a like notice in respect of a single extradition request made in relation to Mr Pasini.  Mr Cabal and Mr Pasini have instituted separate proceedings for judicial review under s 39B(1) and (1A) of the Judiciary Act 1903 (Cth) challenging the validity of each of the three s 16 notices.  I will make some reference below to the grounds of challenge.  There is sufficient identity for present purposes between the three applications for me to need only refer to that brought by Mr Pasini (V 120 of 1999) in these reasons.

2                     Rather than seeking discovery in his application, Mr Pasini (as did Mr Cabal) issued a subpoena to the Minister for the production of specified documents held in her Department at the time she made her s 16(1) decision.  In each of the three proceedings the Minister now seeks to have the subpoena set aside in part.  Alternatively, the Minister asserts claims of legal professional privilege and/or public interest immunity in relation to the documents falling within those parts of the subpoenae sought to be set aside.  Before turning to the case advanced by the Minister, it is necessary to refer to a number of preliminary matters.

1.         The Statutory Setting

3                     For present purposes the scheme of the Act can be described as follows.

4                     1.         The principal objects of the Act as stated in s 3 are (i) to codify the law relating to the extradition of persons from Australia to "extradition countries" (a defined term:  see s 5) and to New Zealand;  (ii) to facilitate the making of requests for extradition by Australia to other countries;  and (iii) to enable Australia to carry out its obligations under extradition treaties.

5                     2.         Australia has a Treaty on Extradition with Mexico.  That Treaty is a schedule to the Extradition (United Mexican States) Regulations ("the Regulations") which regulations declare Mexico to be an "extradition country".

6                     3.         A country seeking extradition from Australia of an "extraditable person" (see the definition below) can apply to a magistrate under s 12 of the Act for a provisional warrant for the arrest of that person.  If the magistrate is satisfied by information on affidavit that the person is an "extraditable person", a warrant is to be issued and the magistrate is obliged as well to provide the Attorney-General both a report that the warrant has issued and a copy of the affidavit.

7                     4.         An "extraditable person" is defined in s 6 of the Act as follows:

"Where:

       (a)   either:

              (i)        a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act;  or

…

       (b)             the offence or any of the offences is an extradition offence in relation to the country;  and

       (c)   the person is believed to be outside the country;

the person is, for the purposes of this Act, an extraditable person in relation to the country."

It is unnecessary for present purposes to refer to the Act's definitions of "extradition offence":  see s 5;  and "extradition objection":  see s 7.

8                     5.         The Attorney-General's role in the statutory scheme is enlivened by the receipt of an extradition request from an extradition country.  Section 16 of the Act provides:

"(1)       Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2)         The Attorney-General shall not give the notice:

              (a)       unless the Attorney-General is of the opinion:

                          (i)       that the person is an extraditable person in relation to the extradition country;  and

                          (ii)      that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia;  or

              (b)          if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.

(3)         As soon as practicable after the person is remanded under section 15 or the notice is issued, whichever is the later:

              (a)       a copy of the notice;  and

              (b)          copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b);

              shall be given to the person."

I note in passing that the documents referred to in s 16(3) insofar as presently relevant are defined in s 19(3) to mean:

"(a)     if the offence is an offence of which the person is accused - a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant; 

…

(c)        in any case:

            (i)         a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence;  and

            (ii)        a duly authenticated statement in writing setting out the conduct constituting the offence."

9                     6.         Where, consequent upon a s 16 notice, proceedings are taken before a magistrate under s 19 to determine whether the person whose extradition is sought is eligible for surrender in relation to an extradition offence or offences, a number of prescribed criteria must be satisfied before that person can be determined to be eligible for surrender.  I note that whether 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.

10                  7.         Once a person has been determined to be eligible for surrender and has become an "eligible person":  see the Act s 22(1);  the Attorney-General is then obliged to determine whether that person is to be surrendered:  s 22.

11                  8.         Of particular relevance to the present matter s 50 of the Act provides:

"50      Solicitor-client relationship in relation to communications

            Where communications take place between officers of the Attorney-General's Department, on behalf of Australia, and officers of an extradition country or New Zealand, on behalf of that country or New Zealand, in relation to any proceedings or contemplated proceedings for the surrender of a person, there shall be taken, for the purposes of this Act and any other Act, to be a relationship of solicitor and client between the officers of Australia and the officers of the extradition country or New Zealand in relation to those communications."

12                  9.         For the sake of completeness I would note the provisions of Article 8 and Article 16(1)(c) of the Treaty that is a schedule to the Regulations.  They provide respectively:

"                                              ARTICLE 8

Extradition shall not be granted when criminal proceedings can no longer be instituted by reason of lapse of time or any other cause in accordance with the law of either Party.

                                                ARTICLE 16

1.         The following documents, accompanied by a translation into the language of the Requested State, shall be sent with the extradition request:

…

(c)        a statement of the basis of the laws relating to the offence or offences which are the subject of the request and a statement of the punishment that may be imposed and the provisions relating to the period of limitation or prescription."

2.         Commentary on the Statutory Setting

13                  A number of observations should be made of this legislation that are of some relevance to the present motions.

14                  First, decisions under the Act are excluded from those that are reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(1) and Sch 1, para (r).  In consequence to the extent that the various decision-making steps in the processes leading to surrender are subject to judicial review, this will be in proceedings under s 39B of the Judiciary Act 1903 alone.  It is clear that the exercise of the s 16 power can thus attract prohibition and mandamus:  see Director of Public Prosecutions of the Commonwealth v Kainhofer, above, at 538-539.  Nonetheless the undesirability of judicial intervention in the course of the extradition process at an intermediate 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 stage of the process (ie the s 22 decision of the Attorney-General) if the decision then made was properly susceptible to challenge.

15                  Secondly, the decisions taken at each of the four stages in the extradition process (ie under s 12, s 16, s 19 and s 22 of the Act) do not have identical subject matter.  Of present relevance, the question whether a person is an "extraditable person" is required to be addressed by the Attorney-General before a s 16 notice is issued.  It is not a proper subject of address by a magistrate making a s 19 determination though it may well be a relevant consideration when the Attorney-General makes a decision under s 22.

16                  Thirdly, s 50 of the Act (ie that deeming the relationship of the officers of the requesting country and counterpart officers of the Attorney-General's Department to be in a client-solicitor relationship in certain circumstances) is something of a curiosity.  Notwithstanding the relationship so deemed, in circumstances such as the present, the section leaves it to the common law to determine when and if legal professional 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 ways" in the same transaction or where that solicitor is otherwise subject to conflicting duties.  I will later return to this topic.

3.         The Factual Setting

17                  The circumstances 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 I have been directed by the parties to it and I have considered it appropriate to refer to the following narrative, not for the purposes of my making any findings in reliance thereon, but so as to illuminate factual aspects of the dispute before me.

"The applicants, Marco Pasini Bertran … and Carlos Cabal Peniche … are citizens of the United Mexican States … .  They left Mexico some years ago and have not returned there since.

Mr Cabal

Between 31 August 1994 and 15 May 1998, a total of thirteen warrants for the arrest of Mr Cabal were issued in Mexico by Judges of the Federal District in Criminal Matters.  The warrants for arrest alleged the commission of banking offences relating to embezzlement (under Article 112 Section V in connection with Articles 113 and 114 of the Law of Credit Institutions) and fraud (under Article 386 of the Federal Criminal Code).  Mr Cabal was arrested in Australia pursuant to a provisional arrest warrant ("PAW") on 11 November 1998.  The PAW was issued on 10 November 1998 under s 12 of the Act on the application of Mexico.  Since 11 November 1998, Mr Cabal has been held in custody in Port Phillip Prison, pursuant to orders for remand made by a magistrate under s 15(2) of the Act.

By Diplomatic Note dated 31 December 1998 Mexico requested Mr Cabal's extradition, relying on the thirteen arrest warrants which had issued against him in Mexico.  The supporting documents in relation to the request were received by the Commonwealth of Australia on 6 January 1999.  On 7 January 1999, the first respondence issued a notice pursuant to s 16(1) of the Act ("the first Cabal notice") directed to the magistrate before whom Mr Cabal was brought, stating that the request had been received from Mexico in relation to Mr Cabal.  A copy of that notice and the supporting documents were served on Mr Cabal's then solicitors in Australia on 8 January 1999.

Between 13 April 1998 and 7 January 1999 four additional warrants of arrest were issued in Mexico for Mr Cabal's arrest in respect of taxation and money laundering offences ("the traditional arrest warrants").  One of the additional arrest warrants was the same as one of the warrants in respect of which the first Cabal notice was issued.  On 19 February 1999, whilst Mr Cabal was in custody, Mr Cabal was purportedly arrested again and brought before a magistrate pursuant to a second PAW.  The second PAW was issued under s 12 of the Act by a magistrate on 16 February 1999 in relation to the additional arrest warrants.

By Diplomatic Note dated 11 February 1999, Mexico again requested Mr Cabal's extradition, relying on the additional arrest warrants.  On 30 March 1999, the first respondent issued a second notice in respect of Mr Cabal under s 16(1) of the Act ("the second Cabal notice") directed to the magistrate before whom Mr Cabal was brought, stating that the request had been received from Mexico in relation to Mr Cabal.  A copy of that notice and the supporting documents were served on Mr Cabal's solicitors under cover of a letter dated 30 March 1999.

Mr Pasini

On each of 18 January 1996 and 29 August 1996, a warrant for the arrest of Mr Pasini was issued in Mexico by the Third Unitary Criminal Court of the First Circuit in the Federal District.  The first arrest warrant alleges two breaches by Mr Pasini of Article 112 Section V of the Law of Credit Institutions.  The second arrest warrant alleges a breach by Mr Pasini of Article 400 Section II of the Federal Criminal Code.  In both warrants the alleged breaches relate to activities by Mr Pasini in connection with the activities or affairs of Mr Cabal.

Mr Pasini was arrested in Australia pursuant to a PAW on 27 November 1998.  That PAW was issued on 27 November under s 12 of the Act on the application of Mexico.  Since 27 November 1998, Mr Pasini has been held in custody in Port Phillip Prison, pursuant to orders for remand made by a magistrate under s 15(2) of the Act.

By Diplomatic Note dated 20 January 1999 Mexico requested Mr Pasini's extradition, relying on the arrest warrants which had been issued against him in Mexico.  On 21 January 1999, the first respondent issued a notice pursuant to s 16(1) of the Act ("the Pasini notice") directed to the magistrate before whom Mr Pasini was brought, stating that the request had been received from Mexico in relation to Mr Pasini.  A copy of that notice and the supporting documents were served on Mr Pasini's then solicitors in Australia on 22 January 1999.

The Amparo proceedings and the stays

Meanwhile, Mr Cabal's legal representatives in Mexico instituted proceedings known as "incidental suspension proceedings" in conjunction with what are known in Mexico as "Amparo proceedings".  The Amparo proceedings are proceedings challenging the lawfulness of the Mexican arrest warrants.  On 18 December 1998 a Judge in Mexico made interim (or provisional) orders that the execution of the arrest warrants against Mr Cabal be stayed.  They were stayed upon conditions, discussed below.  On 1 February 1999, the provisional stay was made final (or definitive) until the determination of the Amparo proceedings.

On 22 February 1999, a Judge in Mexico also provisionally stayed two of the three additional arrest warrants.  A third had, as already noted, been previously stayed.  In consequence, only one of the additional arrest warrants is not now stayed, although Amparo proceedings have been issued in relation to it.

Mr Pasini's legal representatives in Mexico also instituted "incidental suspension proceedings" in conjunction with Amparo proceedings.  On 20 January 1999 and, in order to correct an error, again on 23 January, a Judge in Mexico made provisional orders that the arrest warrants against Mr Pasini be stayed.  There were conditions of the stay, also discussed below.  On 29 March 1999, the provisional stay was made final (or definitive) until the determination of the Amparo proceedings.  I also note that on 3 March 1999, a Twelfth Federal District Judge for Criminal Matters in Mexico City made a declaration to the effect that the warrant issued on 18 January 1996 was still in force and pending for execution."

4.         The Section 16 Notices

18                  On 21 January 1999 a memorandum was sent to the Minister by officers of the Criminal Law Division of the Attorney-General's Department.  Its purpose is encapsulated in its preamble:

"EXTRADITION TO MEXICO:  MARCO PASINI BERTRAN

Issue:              Whether to sign a notice pursuant to section 16 of the Extradition Act 1988 ("the Act").

Purpose:         Signature of section 16 notice."

19                  The memorandum (i) described the factual background to Mexico's extradition request;  (ii) attached both the request and a document indicating that the Minister could be satisfied that the s 16 preconditions to the issue of a notice were made out;  (iii) indicated that extensive consultations had taken place between officers of the International Branch of the Division and officers of other Commonwealth and Mexican agencies;  (iv) concluded as follows, the three named officers (though not the Secretary) signing the document:

"Recommendation:

21.       It is recommended that you sign and date, pursuant to section 16 of the Extradition Act 1988, the attached notice stating that a request for the extradition of Marco Pasini Bertran has been received from Mexico for the offences specified therein.

SIGNED BY:          ORIGINATED BY:   ENDORSED BY:           ENDORSED BY:

Mark Jennings                                                         Michael Edwards      Chris Meaney                                            Secretary/

A/Assistant Secretary  Senior Legal Officer        A/First Assistant Secretary  Deputy Secretary

International Branch  (02)6250 6683                Criminal Law Division

                21 January 1999          21 January 1999             21 January 1999                       January 1999"

and (v) appended a s 16 notice in the Minister's name for her signature.

5.         The Section 39B Applications

20                  The applications have undergone progressive amendment the last being allowed during the hearing of the present motion.  As is becoming characteristic of judicial review applications - and lamentably so in my view - a considerable number of grounds of review have been advanced with often the same alleged vice being repackaged so as to enliven first one and then another of those various grounds.  By way of illustration, at the core of many of the grounds relied on is the assertion that the applicant was not an "extraditable person" because of the effect of the Amparo stays referred to in Kenny J's narrative above.

21                  For present purposes it need only be noted that two of the grounds are Wednesbury unreasonableness and the denial of procedural fairness.  The former of these relates the alleged unreasonableness (i) to the exercise of the s 16(1) discretion to issue the notice;  (ii) to forming the s 16(2)(a) opinion that the applicant was an "extraditable person";  and (iii) to forming the s 16(2)(b) opinion that there was not an extradition objection in relation to the extradition offences for which surrender was sought.  The recurrent, though not exclusive matters relied upon in the lengthy "particulars" of each of the above relate (a) to the effect of the Amparo stays upon the question whether Mr Pasini was an "extraditable person";  (b) to whether the alleged offences were statute barred because of the expiry of the relevant limitation periods in Mexico;  (c) to the alleged political persecution of the applicants;  and (d) to the alleged failure to give the applicants an adequate opportunity to address the preceding matters.  The four matters to which I have referred, I would add, infuse the other grounds relied upon in the application.

22                  I should note in passing that while Kenny J granted leave on 16 June 1999 to amend the application to add the Wednesbury unreasonableness ground, the full dimensions of the claim actually being asserted only became apparent at the hearing before me.  I then granted leave to further amend the application to reflect the claim now made.

23                  The procedural fairness claim appears to be a dual one alleging first the absence of proper procedures for allowing the applicants to be heard prior to the decision and secondly, apparently, the failure to allow the applicants to make submissions on matters that allegedly influenced, were considered by, etc, the Minister.

24                  Again I would note in passing that in Peniche v Vanstone, above, Kenny J concluded in interlocutory proceedings that there was a serious issue to be tried in relation to the procedural fairness claim though her Honour refused to grant interlocutory injunctive relief against the Minister or against the magistrate conducting the surrender proceeding under s 19 of the Act.

6.         The Subpoenae

25                  Again I need only refer to that issued to the Minister for the purposes of Mr Pasini's application.  It required production of:

"1.       All of the documents (including letters, reports, memoranda, files, instructions, notes, recommendations and minutes of meetings):

            (a)        before the Honourable Amanda Vanstone at the time she made the decision to issue a Notice dated 21 January 1999 under sub-section 16(1) of the Extradition Act 1998 [sic] (Cth) to a magistrate in respect of the applicant; 

            and

            (b)        before any officer of her department who was dealing with any request for the extradition of the applicant at the time she made the said decision; 

            and

            (c)        before Mark Jennings A/Assistant Secretary International Branch, or Michael Edwards Senior Legal Officer, or Chris Meaney A/First Assistant Secretary Criminal Law Division, at the time he or she recommended that the Honourable Amanda Vanstone sign and date the notice pursuant to section 16 of the Extradition Act stating that a request for the extradition of Marco Pasini Bertran had been received from Mexico for the offences specified in the notice.

in relation to the following questions:

(1)       whether a request for the extradition of the applicant from the United Mexican States ("Mexico") had been received;

(2)       whether there was a warrant or warrants in force for the arrest of the applicant in relation to an offence or offences against the law of Mexico for which Mexico sought the surrender of the applicant ("the offences");

(3)       whether the offences each carried a penalty of deprivation of liberty for a period of not less than 12 months;

(4)       whether, if the alleged conduct of the applicant constituting any of the offences, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia within the meaning of s 5 of the Extradition Act;

(5)       whether any of the offences are subject to a statutory limitations period which had expired on or before 21 January 1999.

2.         All of the documents (including letters, reports, memoranda, files, instructions, notes, recommendations and minutes of meetings) arising out of or in relation to the [handwritten] request appearing at the bottom of the memorandum of Mr Jennings, Mr Edwards and Chris Meaney dated 21 January 1999 which request was in or to the effect of the following terms:  'Would there have been a problem in giving him the dx's this morning first thing?  Can someone please give me an outline?' "

26                  Of the five categories of document sought in the subpoena, I would note that (i) category (2) is cast in terms that draw on the definition of "extraditable person" in s 6(a)(i) of the Act;  (ii) category (3) likewise draws on the definition of "extradition offence" in s 5 of the Act;  (iii) category (4) is, in substance, in the language of the "double criminality" requirement of s 16(2)(a)(ii) of the Act;  and (iv) category (5) relates the offences to the limitation provision of Australia's extradition treaty with Mexico:  see Art 8.  In other words these categories are defined by reference to questions of law.  Equally all save category (5) relate to questions about which the Attorney-General is obliged to form an opinion before giving a s 16 notice.  Distinctly the category of documents referred to in para 2 relates to a handwritten notation on the Pasini subpoena that is not reproduced on either of the Cabal subpoenae.

27                  Insofar as the present applications are concerned the Minister has provided the applicants with the documents referred to in para 1(a) of the subpoenae, but seeks to have para 1(b) and (c) and para 2 set aside.

7.         Setting Aside the Subpoenae

28                  The common bases of attack on the subpoenae are that they are being used impermissibly to obtain discovery and in any event, being no more than fishing exercises, they are an abuse of process.  It should be said at the outset that (a) the applications to set aside were obviously made before the Wednesbury unreasonableness ground assumed its final and particularised form;  and (b) the respondent's written submissions in support of the application were filed before any version of that ground had been "particularised".  In oral submission senior counsel for the Minister properly did not seek to found his case simply on the infelicitous language in which the subpoenae are cast - and it is clearly infelicitous.

Subpoena as discovery

29                  The primary submission for the Minister is that the subpoenae 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 and in relation to the use that properly can be made of a subpoena particularly against a party.

30                  First, discovery.  (i)  A party does not have an unqualified right to discovery under the Federal Court Rules:  see Cameron v Rural Press Ltd (Burchett, Gummow and Hill JJ, 20 July 1990, unreported);  Federal Court Rules O 10 r 2.  (ii)  As Practice Note 14 makes plain, general discovery will not be ordered as of course, discovery commonly being ordered only in relation to particular issues or defined categories of documents.  (iii)  "The rules of court do not place on judges the responsibility of determining for the parties which of their 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 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 discovery will only be ordered in relation to a particular issue or issues.  (v)  Whether or when discovery will be ordered "depends upon the nature of the case and the stage of the proceedings at which the discovery is sought":  Australian Securities Commission v Somerville, above, 50.  (vi)  With the rules of court having prescribed the method by which parties can obtain discovery or further discovery, and having regard to the constraints imposed on discovery, it is impermissible 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.

31                  Secondly, subpoenae.  I need only note a number of matters of relevance to the present application.  (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 Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710;  Australian Competition and Consumer Commission v Shell Co of Australia Ltd, above, 696;  (b) its object in whole or in part is not to obtain evidence to support a case but to discover whether there is a case at all:  Commissioner for Railways v Small,above, 575;  or (c) it is an abuse of process in that "it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents":  Commissioner for Railways v Small, above, 574.  (iii)  The documents required to be produced must not only be sufficiently described, they must also be "sufficiently relevant" in the sense of having apparent relevance to the issues in the proceedings:  Trade Practices Commission v Arnotts, above;  Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921.  (iv)  Where documents are produced into the control of the court the issue is then one of inspection.  Inspection is not a matter of right but a matter for the exercise of judicial discretion:  National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372.  (v)  When inspection is sought, the party seeking it must be able to show the legitimate forensic purpose for which the access is sought:  R v Saleam (1989) 16 NSWLR 14.

32                  Turning now to the subpoenae in issue in this matter, they are, in my view, objectionable.  I would be slow to set the subpoenae aside if no more was shown than that as a matter of form they were used as a substitute for the discovery procedures prescribed in this Court's rules but in circumstances where the two procedures would produce the same result in substance.  The ground of objection in the present case, though, is more than a formal one.

33                  Apart from the application and its "particulars" the only separate evidentiary material placed before me by Mr Pasini and Mr Cabal was the documents that were before the Minister when she made her s 16 decision (ie exhibits A1, A2 and A3).  This does not provide a substantial bulwark to meet the Minister's objections to the subpoenae.  Insofar as the particulars are concerned, those that relate to the two most significant grounds for present purposes - Wednesbury unreasonableness and natural justice - proceed in the main on the assumption that the Minister was possessed constructively of a certain corpus of information (that actually before her has been disclosed) and her decision-making and the processes that entailed gave rise to the unreasonableness, etc alleged once regard was had to that particular corpus of information.  The burden of the subpoenae is to ascertain whether or not she actually possessed that corpus of information.  I would add that the material put before me by the applicants does not obviously suggest there is reason to believe that the Minister had that information.

34                  Considering the subpoenae in isolation, I am prepared to assume for present purposes that the method used to identify and classify the documents sought is itself unobjectionable notwithstanding that the questions used to identify the five categories of documents could require the exercise of judgment in answering the questions for the purpose of determining whether documents fell within a particular category.  Such difficulty as answering those questions may pose is undercut in the present case when one has regard to the nature of the administrative decision to which the subpoenaed documents relate in their various ways and to the fact that the subpoena is addressed to the decision maker. 

35                  Where the objections lie, in my view, are in the width of the documentation sought and in the manner of its seeking, these objections being interrelated.  First, it is not at all apparent to me why the ordinary processes of this Court could not have been followed and discovery sought.  Had that course been taken I am by no means satisfied that discovery of any magnitude, if at all, would have been ordered on this application as it is presently framed and particularised.  I would add that there well may be a question whether the nature and purpose of a s 16 decision are such in the administrative process leading to a final decision under s 22 of the Act as would influence the preparedness of the court in any event to embark on the discovery process in relation to a s 16 challenge save in a demonstrably clear and obvious case which this does not appear to be:  cf the fragmentation principle referred to in Harris's case, above, at 412-413.

36                  The principal "issues" raised in the application as particularised - I am not referring to the manner in which those issues are packaged and repackaged as "grounds" - relate in various ways to (i) the fact and consequences of the Amparo stays;  (ii) whether the extradition offences carried the prescribed penalties;  (iii) whether the double criminality requirement was satisfied;  (iv) whether the limitation period for the extradition offences had run;  (v) the failure to accord natural justice;  and (vi) whether the applicants were the subject of political persecution.

37                  The five categories of document referred to in the subpoenae relate, it is said, to "issues" (i) to (v) of the above.  That relationship is justified for present purposes in the following way.  It is submitted that unless and until the applicants have access to the documents sought they do not know whether the information on which they found the issues they raise (eg the fact of the Amparo stays) was actually held by the Attorney-General's Department and without that knowledge there is no way they can prove their case.  So, by way of illustration it is said that the Minister's formation of the opinion that each applicant was an extraditable person was vitiated by unreasonableness but that that case could not be proved without looking at the totality of the material governing that issue that was before the Minister and the departmental officers.

38                  Notwithstanding the "particulars" given for the unreasonableness ground, for example, it is difficult to resist the conclusion on the material before me that the subpoenae in the terms in which they are cast are being used merely for the purpose of finding out whether or not there is evidence upon which to base their unreasonableness challenge to both the Minister's opinions and her decision.  It is not apparent to me that the applicants have any knowledge or reason to believe or to suspect at all that any such information existed in the hands of the Minister and her departmental officers other than as a matter of speculation from what may be suggested from the language of the departmental memoranda that were actually before the Minister and were provided to the applicants respectively.  I am far from satisfied that the subpoenae in the main involve other than fishing:  see Australian Securities Commission v Dalleagles Pty Ltd (French J, 27 February 1992, unreported);  and see Somerville'scase, above.

39                  Distinctly, while I have indicated that the method used to describe the categories of documents sought will be assumed not to be objectionable as such in the circumstances, I am nonetheless satisfied that the descriptions so given in relation at least to categories 1 and 2 in the subpoenae - if category 1 on its face can be ascribed intelligible meaning and legitimate forensic purpose - go well beyond the matters that are said to be "in issue" (eg the fact and consequence of the Amparo stays etc) in any event assuming that these matters can properly be said to be "in issue".  They do so furthermore in a way that could well cast upon the judge into whose custody the documents in those categories and particularly category 2 came, the burden of inspecting the documents for "apparent relevance" before allowing access to them (even assuming there was not, as here, any issue of privilege).  That burden, as Branson J indicated in Diddam'scase, above, is not imposed on judges by the discovery process.

40                  The present use made by the applicants of subpoenae is a scarce disguised attempt to secure discovery by more favourable means.  The fact that the respondent has been forced to make the present application to set aside the subpoenae and the rather tortured course of argument this has entailed only reinforces the view I take that no encouragement should be offered parties so to by-pass the processes prescribed in this Court's rules for obtaining discovery.  In so doing, the applicants have removed at the outset that form of judicial control over the discovery process that the rules and practices of this Court envisage.  They have substituted a process that, in the event of an application to set aside the subpoena, places both judge and party in receipt of the subpoenae in positions that are the converse of what is contemplated by the rules where discovery is sought.  I consider that the stance taken by the judges of this Court in Diddam'scase and the Shell case, above, ought likewise be taken in the present circumstances.  I should add that the judicial control to which I referred is the more necessary in cases of judicial review for the very reason that discovery in such cases is often enough unnecessary at all or save in relation to a narrow issue or issues.  It is made the more so where, as here, the same group of "issues" is used to inform a number of alleged grounds of review before being repackaged in an omnibus Wednesbury unreasonableness claim.

41                  While my comments have been directed in the main at the subpoenae as they relate to the unreasonableness ground, I should add that I do not consider that their essential vice is overcome or ameliorated by the natural justice claim.

42                  I will order that in each of the proceedings the subpoena be set aside save in each instance for para 1(a).

8.         The Privilege Claim

43                  Notwithstanding my decision to set aside the subpoenae, it is appropriate both out of deference to counsel's submissions and because of its possible future relevance, to refer to at least the claim advanced by the Minister to resist production and inspection of the documents on the ground of legal professional privilege.  Because of the view I take of that claim, it will be unnecessary to refer in significant detail to the affidavit material filed on behalf of the Minister.  Likewise, because of the view I take of the manner in which documents in the control of the Minister should be sub-categorised, little purpose would be served in referring to the submissions on public interest immunity given the encompassing character of that claim.

Legal Professional Privilege

44                  It is appropriate at the outset to reiterate insofar as is relevant the terms of s 50 of the Act:

"Where communications take place between officers of the Attorney-General's Department, on behalf of Australia, and officers of an extradition country … on behalf of that country … in relation to any proceedings or contemplated proceedings for the surrender of a person, there shall be taken, for the purposes of this Act and any other Act, to be a relationship of solicitor and client between the officers of Australia and the officers of the extradition country … in relation to those communications."

45                  First, it would seem that Mexican officials and Attorney-General's Department officers had communications for the purposes of obtaining a provisional warrant under s 12 of the Act.  Those communications would clearly have related to "proceedings or contemplated proceedings for the surrender of a person".  If such was their sole purpose then they would attract legal professional privilege.  I say sole purpose because s 50 does not itself statutorily ascribe privilege to the communications.  It merely deems the parties to be in a relationship capable of attracting such 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 relationship of the officials concerned to be one of solicitor and client in relation to communications for legal advice unrelated to proceedings or contemplated proceedings for surrender of a person.

46                  Secondly, it may be the case that at or before the time the Minister took her s 16 decision, the Mexican officials had communications with Attorney-General's Department officials for the sole purpose of the contemplated s 19 proceedings.  Such communications, again, could attract legal professional privilege.

47                  Thirdly, there may well have been communications between Mexican officials and Attorney-General's Department officers in relation to the making of an extradition request so as to activate the discretion of the Attorney-General under s 16 of the Act.  Such communications would not, in my view, attract legal professional privilege.  While they might be characterised as having been made for the ultimate purpose of securing proceedings under s 19, they should properly be characterised as communications made for the purpose of enlivening the Minister's discretion under s 16 and, as such, not made for the sole purpose of the contemplated proceedings.  The Minister, I would note, has submitted that the various steps in the extradition process ought not be so fragmented:  s 16 related communications are merely a step on the way to, and derive their purpose from, contemplated s 19 proceedings.  The Minister's s 16 decision, in my view, should be seen as having its own function in the extradition process - and a function in which Parliament would not have intended the Department's officers to be cast in a solicitor-client relationship with Mexican officials in respect of communications inter se relating to a prospective s 16 decision with the consequential inconsistent duties to the Minister and to the Mexican officials this would entail.

48                  Fourthly, apart from their s 50 solicitor-client relationship with the Mexican officials, officers of the Attorney-General's Department also act for s 16 purposes as departmental officials in aid of their Minister.  Communications made between such officers and the Minister or on behalf of the Minister and third parties for s 16 purposes need to be demonstrated positively to be communications made with the sole purpose of providing or obtaining legal advice to or for the Minister before they can attract such privilege.  It is at this point, as I will indicate, that some number of difficulties, legal and practical, may well stand in the way of at least some undifferentiated part of the documentation encompassed by the Minister's assertion of legal professional privilege in the present matter.  In saying this I am not questioning, nor could I, the rule that legal professional privilege can attach to confidential professional communications made between salaried government officials and a Minister:  see Waterford v The Commonwealth (1987) 163 CLR 54.

49                  It follows from what I have said so far that the Attorney-General's Department officials acting in the extradition process perform two distinct functions - one in aid of Mexico in relation at least to the s 12 and s 19 proceedings;  the other in aid of the Attorney-General in relation to the Minister's s 16 and, let it be said, s 22 functions.  In acting in the performance of each of these functions, the officers concerned are acting in furtherance of an interest that is in each case separate and distinct from the other.  In the solicitor-client relationship the officers concerned are acting in the interests of, and owe duties to, the Mexican officials.  In the officer-Minister relationship, the officers concerned are acting in aid of the Minister to further the relevant public interest and public purposes served by the statutory power conferred on the Attorney.  The respective interests so served I re-emphasise are separate, not common, interests.

50                  I mention the above matter for the purpose of calling into question the appropriateness of the practice apparently adopted by the Attorney-General's Department in this case of having the same officers serving both the Minister and the Mexican officials (hence Mexico). There well may be good reason for not translating in an unmodified form to the public sector the common law's objection to a 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 integrity of the advisory function in the public sector does not appear to be compromised through an adviser in a given instance being in a position of conflicting responsibilities.

51                  Furthermore, in a case such as the present, where the adviser obtains and makes communications in the performance of separate functions that give rise, potentially, to separate claims of privilege by the adviser's several "clients", it is important that there be practical segregation of documents embodying those communications so as to facilitate the precise identification of the documents to which a privilege claim can be made by one or other of the clients.  I would simply note that, in the present case, the affidavit that asserts the claim of legal professional privilege does not differentiate between documents that may be privileged in the s 50 solicitor-client relationship and those in the departmental officer-Minister relationship.  That differentiation is the more necessary for the reason that documents relating to the latter relationship are less likely to be proper subjects of a privilege claim for reasons to which I now turn.

52                  Earlier in these reasons I described the 21 January 1999 memorandum sent to the Minister by departmental officials and I set out the terms of the recommendation made.  The Minister claims that that memorandum and such documentation as might underpin it constituted legal advice provided to her by lawyers in her Department even though privilege has not been claimed for the memorandum.  There is, of course, no indication in the material before me that the Minister sought such advice in relation to her exercise of the s 16 power:  cf Re Fritz [1995] 2 Qd R 580.  At best it is said by the officer who swore the affidavit concerning this matter, that the role of the departmental official who acted in the matter was "to prepare legal advice, through more senior officers, to the responsible Minister regarding her functions under the Extradition Act 1988".

53                  Even if it be accepted that some legal advice may have been obtained by the departmental officers from a third source (eg the Director of Public Prosecutions) for the Minister which could attract a privilege claim, I am not satisfied that the proper characterisation of the role of those officers in relation to the Minister's exercise of her s 16 function was legal adviser and client per se.  Rather their role and their relationship 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 of a Department's function is to undertake an analysis, evaluation and precis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions.  The press of ministerial business necessitates efficient performance of that departmental function.  The consequence of supplying a departmental analysis, evaluation and precis is, of course, that the Minister's appreciation of a case depends to a great extent upon the appreciation made by his Department.

Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function.  A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts.  But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision.  The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and precis of the material relevant to that decision":  emphasis added.

54                  This surrogate role of the officers concerned was not that of legal advisor but was that of "a player in the [s 16] transaction" - to use Hill J's description in Zemanek v Commonwealth Bank of Australia (Hill J, 2 October 1997, unreported).  The tenor of, and the recommendation made in, the 21 January memorandum merely confirms this.  Accordingly the privilege recognised in Waterford v The Commonwealth does not attach as of course to communications relating to the s 16 function.

55                  The overall effect of what I have had to say on privilege is, then, that (i) the documents in the possession, custody and control of the Department (hence the Minister) have to be differentiated by reference to the particular relationship (s 50 solicitor-client or departmental officer-Minister) to which they properly relate;  and (ii) within each relationship the actual conditions necessary to attract legal professional privilege at common law must be satisfied.  In the departmental officer-Minister relationship the vital condition will be the need to demonstrate in respect of a particular document or documents that the officer was acting as a legal adviser to, and not as a surrogate of, the Minister.

56                  The final observation I would make is that the affidavit relied on in this proceeding does not address such issues of differentiation.  Such an affidavit would need to before a privilege claim in circumstances such as the present could properly be passed upon. 

9.         Conclusion

57                  I will order that in V 120 of 1999, V 121 of 1999 and V 222 of 1999 the subpoena directed to the Minister for Justice be set aside save in relation to para 1(a) thereof.

Associate:

Dated:              14 September 1999