FEDERAL COURT OF AUSTRALIA

Bertran v Vanstone [1999] FCA 1427

PROCEDURE – whether leave to amend application should be granted – whether separate questions should be heard and determined before trial.

Extradition Act 1988 (Cth) ss 6, 12, 16, 17, 22

Federal Court of Australia Act 1976 (Cth) s 21

Federal Court Rules O 11 r 7, O 13 r 2, O 29 r 2

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 referred

Telstra Corporation Ltd v Australian Telecommunications Authority (1995) 133 ALR 417 referred

Eshelby v Federated European Bank Ltd (1932) 1 KB 254 cited

Shields v Australian and New Zealand Banking Group (unreported, Federal Court of Australia, 15 August 1995) referred

Pollack v Retravision (NSW) Limited (unreported, Federal Court of Australia, 17 September 1996) referred

Reading Australia Pty Ltd v Australian Mutual Provident Society & Anor [1999] FCA 718 applied

Arnold v Attorney-General for Victoria [1995] FCA 727 cited

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

18 OCTOBER 1999

THE COURT ORDERS THAT:

1.      The applicant be granted leave to amend his application in proceeding No. V 120 of 1999, in accordance with Schedule 1 annexed to the notice of motion dated 5 October 1999.

2.      The application for the determination of questions separately from any other question before any trial in the proceeding be dismissed.

3.      The costs of the notice of motion dated 5 October 1999 as revised by the notice dated 13 October 1999 (up to and including today) be reserved.

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

THE COURT ORDERS THAT:

1.      The applicant be granted leave to amend his application in proceeding No. V 121 of 1999 in accordance with Schedule 2 annexed to the notice of motion dated 5 October 1999.

2.      The application for the determination of questions separately from any other question before any trial in the proceeding be dismissed.

3.      The costs of the notice of motion dated 5 October 1999 as revised by the notice dated 13 October 1999 (up to and including today) be reserved.

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

THE COURT ORDERS THAT:

1.      The applicant be granted leave to amend his application in proceeding No. V 222 of 1999 in accordance with Schedule 3 of the notice of motion dated 5 October as revised by notice dated 13 October 1999.

2.      The application for the determination of questions separately from any other question before any trial in the proceeding be dismissed.

3.      The costs of the notice of motion dated 5 October 1999 as revised by the notice dated 13 October 1999 (up to and including today) be reserved.

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

EX TEMPORE REASONS FOR JUDGMENT

1                     In these three matters, there is a motion, notice of which is dated 5 October 1999, for (1) leave to amend the application in each proceeding; (2) the determination of questions separately from and before any other question in the proceeding; and (3) an expedited hearing of those separate questions.  The applicants sought to revise the proposed questions by notice dated 13 October 1999.  The motion in each matter was heard on 14 October 1999 and stood over until today.  Other matters raised by the notice of motion of 5 October were not pursued at the hearing on 13 October 1999. 

2                     I deal first with that part of the motion which seeks leave to amend the application; and, secondly, with the proposal to proceed with the hearing of separate questions. 

leave to amend

3                     In matter No. V 120 of 1999, Mr Pasini seeks a declaration of law that he is not an “extraditable person” within the meaning of s 6 of the Extradition Act 1988 (Cth) (“the Act”) upon the basis that there are no warrants in force for his arrest.  The declaration is sought upon the basis of provisional and final Amparo stays which have, so it is said, been obtained in the United Mexican States (“Mexico”).  The case that Mr Pasini would make if the amendments were allowed is that the stays under the warrants for his arrest are incapable of immediate execution and, in that circumstance, no longer “in force for the arrest” of him.  Mr Pasini would say further that the non-executable nature of the warrants deprives his detention of its legality, the warrants being the only lawful basis for his detention on the ground that he is an “extraditable person”. 

4                     In matter No. V 121 of 1999, Mr Cabal also seeks a declaration of law that he is not an “extraditable person” within the meaning of s 6 of the Act upon the basis that none of the warrants referred to in the first notice issued under s 16 of the Act by the first respondent relating to him are warrants in force for his arrest.  As in Mr Pasini’s case, Mr Cabal relies upon provisional and final Amparo stays said to have been obtained in Mexico.  The amendments sought in matters No. V 120 and V 121 are substantially the same. 

5                     In matter No. V 222 of 1999, Mr Cabal again seeks a declaration of law that he is not an “extraditable person”, but this time in relation to the first, second and fourth warrants referred to in the second notice issued under s 16 by the first respondent against him.  Mr Cabal does so on the basis of provisional and final Amparo stays granted in Mexico.  In this matter, however, Mr Cabal also seeks a declaration of law that the offence of money-laundering (breach of Article 115Bis, s IV, paragraph (b) of the Federal Tax Code) in respect of which the third warrant was issued is not an “extradition offence” within the meaning of s 5 of the Act as modified by Article 8 of the Treaty on Extradition between Australia and the United Mexican States.  If Mr Cabal is permitted to make the relevant amendments, he proposes to argue that the limitation period applicable to the offence of money-laundering has expired and that criminal proceedings in respect of that offence cannot be instituted in Mexico, with the result that the offence is not an “extradition offence” for the purposes of the Act. 

6                     The first respondent has opposed the applications for leave to amend on the ground that (1) the questions sought to be raised by the amendments are not justiciable and (2) the matters relied on post-date the originating applications made to the Court earlier this year. 

(a)     First ground of opposition

7                     The principles governing the grant of a declaration are set out in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 where the majority of the High Court (Mason CJ, Dawson, Toohey, Gaudron JJ) said at 581-582:

It is now accepted that superior courts have inherent power to grant declaratory relief.  It is a discretionary power which ‘[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise’.  However, it is confined by the considerations which mark out the boundaries of judicial power.  Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.  The person seeking relief must have a ‘real interest’ and relief will not be granted if the question is ‘purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’. 

8                     Counsel for the first respondent submitted that there was no provision in the Act which produces objective results from the circumstance that a person is or is not an “extraditable person” or an offence is or is not an “extradition offence” within the meaning of the Act.  Counsel for the applicants submitted, on the other hand, that the questions raised by the amendments go to the foundation of the lawfulness of their detention; that they have a “real interest” in the determination of the issues to be raised; and that the declarations, if made, will, one way or another, lead to their release from custody under the Act. 

9                     The difficulty which the applicants face is that, under the provisions of the Act, whether or not a person is an “extraditable person” and an offence is an “extradition offence” are generally not matters to be determined as objective matters of fact and law, but are matters upon which a magistrate or the Attorney-General is required to form an opinion:  see, e.g., ss 12 and 16.  If the questions “Are the applicants extraditable persons?” and “Is a relevant offence an extradition offence?” can never relevantly arise under the Act as objective matters of fact and law, then, so it seems to me, it is unlikely that the applicants can show an entitlement to the declaratory relief of the kind they seek.  At this stage of the proceedings and in the absence of any real argument, I am not persuaded that that is necessarily the case (although it may be).  Without in any way being taken to decide the question finally, it seems to me at least arguable that the status of a person as an “extraditable person” and the character of an offence as an “extradition offence” may be relevant to an exercise of power under s 22 and, possibly, s 17 of the Act.  It may also be relevant to other provisions, to which my attention has not yet been drawn.

10                  For present purposes, I accept that (1) the Act does not exclude the jurisdiction of the Court to grant declaratory relief under s 21 of the Federal Court of Australia Act 1976 (Cth) and (2) it is at least arguable that the questions, whether each applicant is an “extraditable person” or whether a relevant offence is an “extradition offence” raise justiciable issues:  cf Telstra Corporation Ltd v Australian Telecommunications Authority (1995) 133 ALR 417 at 426-7.

11                  Counsel for the first respondent submitted that the only relevant jurisdiction conferred on the Court was in the nature of judicial review.  That may very well turn out to be correct.  At this stage of the proceedings and in the absence of any real argument, the contrary is not, so it seems to me, so patently untenable that I ought, as a matter of discretion, deny the applicants an opportunity to develop further the issues they seek to raise by the amendments.  After all, the mere existence of an alternative remedy is no automatic bar to declaratory relief:  see Telstra, at 427.

(b)    Second ground of opposition

12                  Counsel for the first respondent also opposed the grant of leave to amend on the basis of the rule laid down in Eshelby v Federated European Bank Limited (1932) 1 KB 254, namely, that the cause of action must fully accrue before the issue of the writ.  An amendment to add a cause of action arising after the date of the commencement of the proceedings is not allowed, absent the consent of the opposite party. 

13                  The proceeding in matter No. V 120 of 1999 was instituted by application filed on 22 March 1999.  The proceeding in matter No. V 121 of 1999 was issued on the same date.  The proceeding in matter No. 222 of 1999 was instituted by application filed on 10 May 1999. 

14                  The rules in this Court governing amendments to pleading are in general terms.  In particular, Order 13 rule 2 relevantly provides:

(1)      Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit. 

(2)      All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.

…

(7)        An amendment may be made notwithstanding that the effect of the amendment will be to add or substitute a new claim for relief or another foundation in law for a claim for relief if the new claim for relief or foundation in law for that claim arises out of the same facts or substantially the same facts as those already pleaded to support existing claims for relief by the party applying for leave to make the amendment. 

Order 11 rule 7 provides:

A party may plead a new matter which has arisen since the commencement of the proceeding.

It has been held that, notwithstanding the generality of the language used in these rules, they do not permit the addition of a cause of action which arose after the commencement of the proceeding in the absence of consent.  That is, there is some authority that the rule in Eshelby continues to apply:  see Shields v Australian and New Zealand Banking Group (unreported, Federal Court of Australia, 15 August 1995) and Pollack v Retravision (NSW) Limited (unreported, Federal Court of Australia, 17 September 1996). 

15                  I do not, however, accept that the proposed amendments fall within the purview of the rule in Eshelby.  That is, I do not accept that the effect of the amendments, if leave were granted, would be to add a cause of action which had not accrued when the applications were first made.  In substance, what the applicants propose is to add new claims for relief arising out of substantially the same facts as those already pleaded.  That course is permitted by Order 13, rule 2(7).  In addition to the new claims for relief, there are, it is true, some new “matters” to be pleaded.  In matter No. V 120, the proposed amendments would incorporate an allegation of fact regarding the grant of a final Amparo stay on 29 March 1999; and, in matter No. V 222, an allegation of fact regarding orders made with respect to the third warrant of arrest by courts in Mexico on 16 and 30 June 1999 and 30 July 1999.  Those matters are permitted to be pleaded by virtue of O 11 rule 7. 

16                  An exercise of power under O 13 rule 2(1) is, of course, a discretionary matter.  I am of the opinion that the grounds of opposition raised by the first respondent are not sufficient to justify a refusal of leave in the circumstances.  I am of the view that leave should be granted, particularly having regard to O 13 rule 2(2) and to the fact that the date for trial remains some time in the future. 

a separate question?

17                  The applicants also made application pursuant to O 29 rule 2 of the Federal Court Rules for the hearing and determination of the following questions prior to and separately from any other question:

(i)                 Is Mr Carlos Cabal Peniche an “extraditable person” within the meaning of s 6 of the Extradition Act 1988 (Cth)?

(ii)               Is Mr Marco Pasini Bertran an “extraditable person” within the meaning of s 6 of the Extradition Act 1988 (Cth)?

(iii)             Is the offence of money-laundering as alleged against Carlos Cabal Peniche an “extradition offence” within the meaning of s 5 of the Act, as modified by Article 8 of the Treaty?

The applicants submitted that the determination of the above questions in their favour would be decisive of the outcome of the litigation and would lead to their release.  It would, they said, avoid the need for the trial of a substantial action.  The first respondent opposed the proposed course and disputed that a result favourable to the applicants would end matters.  The first respondent submitted that the answers to the proposed questions would require consideration of an extensive amount of evidence, probably more than on any other question raised by the proceedings. 

18                  Ordinarily, the Court determines all issues of fact and law in a proceeding at the one time following trial.  In Reading Australia Pty Ltd v Australian Mutual Provident Society & Anor [1999] FCA 718, Branson J summarised the principles that govern the making of an order under Order 29 rule 2 as follows:

(a)    The term “question” in O 29 r 1 includes any question or issue of fact or law in a proceeding.  The distinction in the rule between an “issue” and a “question” is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an “issue”, and less decisive matters of dispute being “questions” (Landsal Pty Ltd (in liq) v REI Building Society (1993) 113 ALR 643 at 647);

(b)    A question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties’ rights (Landsal Pty Ltd (in liq) v REI Building Society at 647);

(c)     However, the judicial determination of a question under O 29 r 2 must involve a conclusive or a final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties (Bass v Permanent Trustee Co Ltd [1999] HCA 9 at para 45);

(d)    Where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined (Jacobson v Ross [1995] 1 VR 337 at 341, referring to Nissan v Attorney-General [1970] AC 179 at 242-243 per Lord Pearson; Bass v Perpetual Trustee at para 53);

(e)     Care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not “ripe” for separate and preliminary determination.  An issue may not be “ripe” for separate and preliminary determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved (CBS Productions Pty Ltd v O’Neill per Kirby P at 606);

(f)      Factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may –

(i)                 contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or

(ii)               contribute to the settlement of the litigation (CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 per Kirby P at 607);

(g)    Factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may –

(i)        give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial (GMB Research and Development Pty Ltd v The Commonwealth [1997] FCA 934);

(ii)               result in significant overlap between the evidence adduced on the hearing of the separate question and at trial – possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding (GMB Research and Development Pty Ltd v The Commonwealth; Arnold v Attorney-General for Victoria [1995] FCA 727).  This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or

(iii)             prolong rather than shorten the litigation (GMB Research and Development Pty Ltd v The Commonwealth).

It will be plain from what I have already said that I am far from persuaded that the issues raised by the amendments and which give rise to the questions the applicant proposes for separate determination are justiciable (although at this stage I regard the matter as arguable).  I cannot, therefore, accept the applicants’ submission that a favourable determination of the questions will necessarily resolve the litigation.  Moreover, the relief which the applicants seek is discretionary.  In the main in such a case, the Court would wish to have all the relevant matters before it before granting discretionary relief.

19                  Further, the answers to the proposed questions will depend, so the parties say, on a deal of evidence, just how much is unclear.  It is plain, however, that it is likely that the evidence on the proposed questions will be significant, perhaps as much, if not more, than the evidence on any other question in the proceedings.  Further, there is likely to be a significant overlap between the evidence adduced on the proposed questions and on the other questions raised in the proceedings.  It is possible, if not likely, that the same witnesses from Mexico would be required to attend on the hearing of any separate questions and, if the applicants were unsuccessful, on the trial of the balance of the proceedings. 

20                  Given the nature of the evidence likely to be adduced and the nature of the issues raised by the proposed questions, I think that the proposed course would, if adopted, prolong rather than shorten the litigation.  Whatever the outcome at first instance, there would almost inevitably be at least one appeal, if not more.  The progress of the litigation through the appellate courts would take time.  If the applicants were ultimately unsuccessful, there would need to be a trial on all issues, perhaps more than a year hence.

21                  Finally, given that the estimated duration of the hearing of the proposed preliminary questions is in the order of three to four, even five days, the Court would have difficulty fixing a date prior to 25 December 1999, whereas a hearing of the entirety of the proceeding can be fixed for very early next year. 

22                  For the reasons set out above, I am satisfied that it is not just and convenient for an order of the kind sought by the applicants to be made:  cf Reading Australia, par 9 and Arnold v Attorney-General for Victoria [1995] FCA 727.  Accordingly, I propose that the application for an order that there be a prior determination of a separate question and an expedited hearing of those questions be dismissed.

Associate:

Dated:              18 October 1999

V 120 of 1999:

V 121 of 1999:

V 222 of 1999: