FEDERAL COURT OF AUSTRALIA

Bertran v Vanstone [1999] FCA 1753

EXTRADITION – Minister’s decision to issue notice under s 16 of the Extradition Act 1988 (Cth) – judicial review of decision – application for discovery – whether discovery should be granted

PRACTICE AND PROCEDURE – discovery – whether “fishing” – whether legitimate forensic purpose

Extradition Act 1988 (Cth), s 16

Judiciary Act 1903 (Cth), s 39B

Federal Court Rules, O 15, rr 2, 5 and 8

Pasini v Vanstone [1999] FCA 1271 referred

Mulley v Manifold (1959) 103 CLR 341 cited

Commonwealth v Northern Land Council (1993) 176 CLR 604 cited

Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426 followed

Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511 cited

Treasurer of the Commonwealth of Australia v CanWest Global Communications Corp [1997] FCA 578 applied

Australian Securities Commission v Somerville (1995) 51 FCR 38 applied

WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 referred

Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450 referred

Caltex Refining Co Pty Ltd v AMWU (unreported, Full Court of the Federal Court, 6 December 1990) applied

Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 referred

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 referred

Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 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

15 DECEMBER 1999

REASONS FOR JUDGMENT

the current application

1                     This is an application, in each proceeding, by way of notice of motion dated 5 October 1999, for an order for discovery pursuant to O 15 of the Federal Court Rules (“the Rules”).  The motion in each proceeding is supported by an affidavit of Peter McGregor Seidel sworn on 5 October 1999.  At the hearing the applicants stated that they also relied upon the following:  court exhibit A1, court exhibit A2, court exhibit A3, an affidavit of Steven Anthony Marshall sworn on 4 August 1999; affidavits of George Defteros sworn on 19 March 1999 in proceeding V 120 of 1999, on 19 March 1999 in proceeding V 121 of 1999, on 10 May 1999 in proceeding V 222 of 1999, on 4 June 1999 in proceeding V 120 of 1999 (especially exhibit “GD1”), on 4 June 1999 in proceeding V 121 of 1999 (especially exhibit “GD1”), on 4 June 1999 in proceeding V 120 of 1999 (especially exhibit “GD1”), on 8 June 1999 in proceeding V 121 of 1999 (especially exhibit “GD2”), an affidavit of Maria Ngo sworn on 10 June 1999 (especially exhibit “MN2”), and affidavits of Alberto Conrado Zinser Cieslik sworn on 15 June 1999 and on 16 June 1999.

2                     The documents sought in each proceeding are those in the possession, custody or power of certain officers of the Attorney-General’s Department (“the Department”) relevant to their recommendations to the first respondent, that she give notices under s 16 of the Extradition Act 1988 (Cth) (“the Act”) in relation to the applicants. 

background

3                     The circumstances in which these proceedings have been instituted are set out in my reasons for judgment in Peniche v Vanstone [1999] FCA 916.  It is not necessary to set them out again.  I also set out the statutory scheme in those reasons, and I do not set it out again.

the section 39B applications

4                     In my reasons for judgment in Peniche v Vanstone, at pars 14 and 15, I set out the case which the applicants at that stage proposed to make.  I stated as follows:

In all three matters, the applicants challenge the validity of a notice issued by the first respondent under s 16 of the Act.  The notice under challenge in V 120 of 1999 is the Pasini notice dated 21 January 1999.  The notice under challenge in V 121 of 1999 is the first Cabal notice dated 7 January 1999.  The notice under challenge in V 122 of 1999 is the second Cabal notice dated 30 March 1999. 

In the case to be put by the applicants at the final hearing of these applications, it is to be contended as follows. 

(1)    All the notices issued under s 16 are invalid because (a) they are based on the erroneous opinion that each of the applicants is an “extraditable person”, and (b) they were issued in breach of the duty of the Attorney-General to observe the requirements of procedural fairness. 

(2)    The extradition requests made by Mexico in respect of the applicants are invalid on account of Mexico’s failure to disclose (a) the Amparo stays, and (b) that limitation periods for most of the alleged offences have expired.

(3)    The second extradition request made by Mexico in respect of Mr Cabal is invalid because it was made at a time when the first extradition request by Mexico in respect of Mr Cabal was still on foot.

(4)    The first Cabal notice issued under s 16 is invalid because it was not given within the forty-five day period required by s 17(2) of the Act.  (At this interlocutory stage, the applicants made no, or virtually no, submissions on this matter.)

Since delivering those reasons, the applications, which are made under s 39B of the Judiciary Act 1903 (Cth), have undergone amendment. 

5                     There are now a number of alleged grounds of review, including (1) the non-disclosure of the Amparo stays by Mexico; (2) denial of natural justice; (3) the failure to have regard to relevant considerations (namely, the Amparo stays and the time-bar on the proposed prosecutions); and (4) unreasonableness (as to the exercise of the s 16(1) discretion, the formation of the opinion as to “extraditable person” and as to “extradition objection”).  As Finn J noted in Pasini v Vanstone [1999] FCA 1271, par 20:

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 [Peniche v Vanstone [1999] FCA 916].

6                     In relation to the non-disclosure ground, the applicants allege that each of the requests made by Mexico to Australia for the applicants’ extradition is invalid because none of those requests disclosed the Amparo stays or sufficient information about them to permit a proper exercise of the power conferred by s 16 of the Act:  see V 120 application, par 2(a)(i), V 121 application, par 4(a) and V 222 application, par 1(a)(v). 

7                     In relation to the natural justice ground, the applicants rely, in the proceedings in V 120 and V 121, upon the first respondent’s failure to provide them with copies of certain documents.  These are particularised as the documents provided to Australia by Mexico; documents recording the information provided by various agencies (i.e., “the Commonwealth DPP, the Australian Federal Police, the Department of Foreign Affairs and Trade, the Mexican Attorney-General’s Department and Interpol Mexico”) in relation to the extradition requests; and documents about the Amparo stays, the bar on prosecutions, and the applicants’ political persecution claims:  see V 120 application, par 2(c) and V 121 application, par 4(c).  In the proceedings in V 222, Mr Cabal alleges that, in breach of natural justice requirements, neither he nor his advisers were given a copy of Mexico’s reply to submissions made on his behalf before the decision to give the relevant s 16 notice was made:  V 222 application, par 1(i)(1). 

8                     In connection with the relevant considerations ground, the applicants rely, first, on the first respondent’s alleged failure to take into account the grant of the Amparo stays by courts in Mexico and the effect of those stays on the question of whether there were warrants in force for their arrest:  see V 120 application, pars 2(f)(iii)(A) and 2(f)(iii)(B) and V 121 application, pars 4(f)(iii)(A) and 4(f)(iii)(B).  They also rely on the first respondent’s alleged failure to take into account that the prosecution of each of the alleged offences was statute-barred at the time the decisions to give the s 16 notices were made:  see V 120 application, par 2(g) and V 121 application, par 4(g). 

9                     In relation to the unreasonableness grounds (which the applicants assert in relation to the decision to give a s 16 notice and in relation to the formation of the opinion under s 16(2)(a) and s 16(2)(b)) the matters upon which they rely include the effect of the Amparo stays on whether either applicant was an “extraditable person”; whether the alleged offences were statute-barred on account of the expiry of the relevant limitation periods in Mexico; the alleged political persecution of the applicants; and the alleged failure to give them an adequate opportunity to address each of those matters before the decisions were made:  see V 120 application, pars 2(j)(1), 2(j)(2) and 2(j)(3); V 121 application, pars 4(j)(1), 4(j)(2) and 4(j)(3); and V 222 application, pars 1(j)(1), 1(j)(2) and 1(j)(3). 

10                  I note too that the applicants have sought further leave to amend their applications in order to raise additional grounds for review, including a ground based on the observations of Finn J in Pasini v Vanstone [1999] FCA 1271.  His Honour stated at pars 49 and 50 as follows:

[T]he 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.

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 comprised through an adviser in a given instance being in a position of conflicting responsibilities.

His Honour made that observation in connection with an application by the first respondent to set aside a subpoena issued in these proceedings.

Subpoenae and discovery

11                  In response to a subpoena issued in each proceeding, the first respondent has produced the documents which were actually before her at the time she made each of the decisions to issue a notice under s 16 of the Act.  These documents comprise:

(a)        in all proceedings, a memorandum from officers of the Department, recommending the issue of a s 16 notice;

(b)       in all proceedings, attachments to that memorandum, including the relevant extradition request from Mexico; and

(c)        in proceeding V 222 of 1999, a submission dated 24 February 1999 from the applicant’s solicitors to the first respondent and a submission dated 10 March 1999 from Mexico in response.

In each proceeding, a further subpoena was issued and substantially set aside by Finn J in Pasini v Vanstone [1999] FCA 1271.  The application for discovery made in each proceeding is, plainly enough, made by the applicants in consequence of Finn J’s decision. 

12                  Each of the Departmental memoranda which recommended the issue of a s 16 notice is in an identical form.  Each (i) described the factual background to Mexico’s extradition request; (ii) attached the request and a document indicating that the first respondent could be satisfied that the s 16 pre-conditions to the issue of a notice were made out; (iii) indicated that extensive consultations had taken place between officers of the Division’s International Branch and officers of other Commonwealth and Mexican agencies; (iv) included a recommendation that a s 16 notice be signed by the first respondent; and (v) appended a s 16 notice in the first respondent’s name for her signature.  In the proceedings in V 120, the memorandum, which was dated 21 January 1999, concluded as follows:

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.

(Signature Appears)             (Signature Appears)              (Signature Appears)                    (No Signature)

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

Signed/Not Signed

_______________________________

Minister for Justice and Customs

                January 1999

(The signatories to each recommendation were not, however, identical in each proceeding.)

13                  In a Revised Schedule for Discovery filed in Court on 5 November 1999, Mr Pasini, the applicant in proceeding V 120 of 1999, sought discovery of the following documents:

1.      All of the documents (including, letters, facsimiles, reports, memoranda, files, instructions, notes, recommendations, minutes of meetings, e-mails) in the possession, custody or power of:

(a)            Mr Mark Jennings, A/Assistant Secretary, International Branch, Attorney-General’s Department;

(b)            Chris Meaney, A/First Assistant Secretary, Criminal Law Division, Attorney-General’s Department;

(c)             Michael Edwards, Senior Legal Officer, Attorney-General’s Department,

relevant to the recommendation he made to the Honourable Amanda Vanstone (“the Minister”) in a memorandum originated by Mr Edwards, signed by Mr Jennings and endorsed by Mr Meaney on 21 January 1999, that the Minister sign, pursuant to s.16 of the Extradition Act 1988, a notice (“the notice”) stating that a request from the United States of Mexico (“Mexico”) had been received in Canberra on 20 January 1999 for the extradition of Marco Pasini Bertran and concerning:

(I)      (1)     any disclosure or communication by Mexico of any Amparo Stays issued by a court in Mexico in respect of any warrants referred to in the extradition request dated 20 January 1999 (including any copies of any such stay orders and/or any translations thereof);

(2)          any disclosure or communication by Mexico of the fact that the offences specified in the warrant mentioned in the request dated 20 January 1999 were or may have been statute-barred by reason of the expiry of the Limitations period relevantly specified in the law of Mexico in relation to them;

(3)          any allegations made by Mexico or information provided by Mexico concerning the applicant’s “flight” from Mexico, his association with Carlos Cabal Peniche, his history, character or conduct;

(4)          any consideration by or on behalf of the Minister of:

(A)        the fact that the two warrants against the applicant and to which the notice related had been provisionally stayed by a Judge under Mexico’s Amparo Law on 20 January 1999;

(B)        the effect of these stays on the question whether there were warrants “in force for the arrest of” the applicant in Mexico in relation to offences against the law of Mexico as required by the definition of “extraditable person” in s.6 of the Extradition Act;

(5)          any consideration by or on behalf of the Minister of the fact that the offences specified in the warrant mentioned in the request dated 20 January 1999 were or may have been statute-barred by reason of the expiry of the Limitations period relevantly specified in the law of Mexico in relation to them;

(6)          the issues specified in paragraphs 2(j)(1), 2(j)(2), and 2(j)(3) in the Second Further Amended Application in V120 of 1999; and

(II)         the query appearing on the last page of the memorandum referred to above, which query 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?”

By paragraph 2 of the Revised Schedule for Discovery, Mr Cabal made an application, in proceeding V 121 of 1999, for discovery in identical terms. 

14                  In proceeding V 222 of 1999, Mr Cabal sought, in par 3 of the Revised Schedule, discovery in the following terms:

3.      All of the documents (including letters, reports, facsimiles, memoranda, files, instructions, notes, recommendations, minutes of meetings, e-mails) in the possession, custody or power of:

(a)      Mr Steven Marshall, A/g Assistant Secretary, International Branch, Attorney-General’s Department;

(b)      Sukhpal Singh, Principal Legal Officer, Attorney-General’s Department;

(c)       Geoffrey Dabb, Acting Deputy Secretary, Attorney-General’s Department,

relevant to the recommendation he made to the Honourable Amanda Vanstone (“the Minister”) in a memorandum originated by Mr Singh, signed by Mr Marshall and endorsed by Mr Dabb on 22 March 1999, that the Minister sign, pursuant to s.16 of the Extradition Act 1988, a notice (“the second notice”) stating that a request from Mexico had been received in Canberra on 11 February 1999 for the extradition of Carlos Cabal Peniche and concerning

(1)           any disclosure or communication by Mexico of any Amparo Stays issued by a court in Mexico in respect of any warrants referred to in the extradition request dated 3 February 1999 (including copies of any such stay orders and/or translations thereof);

(2)           the matters addressed in the submissions made in the memorandum from Mexico dated 10 March 1999 referred to in paragraph (1)(g) of the Particulars to paragraph 1(i) of the Further Amended Application in V222 of 1999;

(3)           the issues specified in paragraphs 1(j)(1), 1(j)(2), and 1(j)(3) in the Further Amended Application in V222 of 1999.

15                  Category (I)(1) of par 1 of the Revised Schedule for Discovery, relating to Mr Pasini, concerns the disclosure by Mexico of the Amparo stays prior to the decision to give a s 16 notice; and Category (I)(2), to the disclosure of limitation difficulties with respect to the relevant offences.  Category (I)(3) of par 1 of the Revised Schedule concerns allegations or the provision of information by Mexico relating to Mr Pasini’s antecedents, including flight.  Category (I)(4) relates to any consideration by the first respondent of the Amparo stays and their effect; Category (I)(5), to her consideration of the limitations question; and Category (I)(6), to issues said to arise under the unreasonableness grounds.  Category (II) arises out of the fact that the recommendation memorandum sent to the Minister was annotated in the terms mentioned. 

16                  Category (1) of par 3 of the Revised Schedule for Discovery, relating to Mr Cabal’s second notice, seeks documents of the same kind as Category (I)(1) of par 1 of the Revised Schedule.  Category (2) of par 3 is apparently directed to the separate natural justice ground said to arise in the proceeding in V 222; and category (3), to the unreasonableness grounds.

the parties’ respective submissions

17                  The applicants submit that, in the circumstances of the case,

it is appropriate to order discovery where the matter is proceeding to a trial on 7 February 2000 and the applicants’ claims have been formulated in detail and the material before the Court, including all the affidavit material filed in the proceedings by the applicants and the first respondent, reveal that several questions of fact are seriously in issue.

The first respondent opposes the discovery applications upon the grounds that the discovery applications are fishing, and the discovery sought can serve no legitimate forensic purpose.

general observations on discovery

18                  The Rules provide that the Court may order any party to give discovery at any stage of the proceeding in accordance with O 15, r 2:  see O 15, r 5.  The discoverable documents are “documents relating to any matter in question …” in the proceedings:  see O 15 rr 2(2)(a) and 8.  It is well established that a document will “relate” to such a matter if it may lead to a train of enquiry which may advance the case of one party or damage that of his adversary:  see Mulley v Manifold (1959) 103 CLR 341 at 345; Commonwealth v Northern Land Council (1993) 176 CLR 604 at 632; and Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426 at 436 (“CC (NSW) Pty Ltd”).  In CC (NSW) Pty Ltd at 436, Lindgren J stated:

In my opinion, O 15, r 15 requires that the Court be satisfied that an order of the kind referred to in that rule is, at the time when the order is made, necessary “in the interests of a fair trial”:  Percy v General Motors-Holden’s Pty Ltd [1975] 1 NSWLR 289 at 292E, F.  … 

The notion of the “interests of a fair trial” and of the “fair disposition of a case” encompasses, in my view, the opening up of a train of inquiry of the kind referred to above which is part of the proper function of discovery.

Generally speaking, I agree.  See also Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 at 24-25 and Esso Australia Resources Ltd v Commissioner of Taxation (1998) 83 FCR 511 at 556 per Merkel J. 

19                  Some of the principles relevant to an application for discovery were summarised by Finn J in Pasini v Vanstone [1999] FCA 1271, par 30, as follows:

(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 on 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.

Although the first respondent expressly refrained from conceding the point, she did not contend, at least at this stage of the proceeding, that, for the purposes of discovery, there was any relevant distinction between a proceeding under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and a proceeding under s 39B of the Judiciary Act 1903 (Cth):  cf Treasurer of the Commonwealth of Australia v CanWest Global Communications Corp [1997] FCA 578 (unreported, Full Court of the Federal Court, 30 June 1997) (“CanWest”), affirming a decision of Hill J at [1997] FCA 540 (unreported, 16 June 1997) (“CanWest at first instance”).

20                  In the passage from the judgment of Finn J set out above, little is said of the circumstances in which a court will regard an order for discovery as necessary in the interests of a fair trial.  Indeed, there is no exhaustive set of criteria by reference to which the outcome of an application for discovery can be determined.  The most important considerations are, as that passage indicates, “the nature of the case and the stage of the proceedings at which discovery is sought”:  CanWest; Australian Securities Commission v Somerville (1995) 51 FCR 38 at 54 (“Somerville”); and WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181 (“WA Pines”) per Brennan J (with whom Bowen CJ agreed).

21                  The Court has declined to grant an order for discovery at the outset of a judicial review proceeding in the absence of any evidence whatsoever to support the matters alleged in the statement of claim:  WA Pines at 181 per Brennan J and 191 per Lockhart J; and Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450 at 460.  Despite a statement by the Full Court in Somerville that those two cases are to “be viewed in light of their own facts” (51 FCR at 54), the Full Court in CanWest reaffirmed that they do state the test to be applied in doubtful cases.  In CanWest, the Full Court said as follows:

A modern statement of the principle, which has been repeatedly followed, is that made by Brennan J (with whom Bowen CJ agreed) in W.A. Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 181, where what is required to obtain a discovery order in a doubtful case was expressed as follows –

“sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery”.

His Honour contrasted such a case (at 182) with a case where “the proceeding is essentially speculative in nature”.  Similarly, Smithers J in Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450 at 462 looked for “a basis for investigation by this Court”.  See also Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78 at 83; TNT Australia Pty Limited v Fels (supra); Trade Practices Commission v TNT Australia Pty Limited (1994) 16 ATPR 41,960; and AB v National Crime Authority (Jenkinson, Burchett and Whitlam JJ, 3 July 1996, unreported).  But even so low a barrier to discovery may not always impede an application, having regard to the law as stated in Australian Securities Commission v Somerville (supra, at 54).  There the joint judgments states:

“Whether it is appropriate to order discovery will depend upon the nature of the case and the stage of the proceedings at which discovery is sought: W.A. Pines per Brennan J at 181.  The two cases [Melbourne Home of Ford and W.A. Pines] must be viewed in the light of their own facts.”

Where, in a case properly before the Court, a case that cannot be dismissed as an abuse of process, the pleadings raise an issue for decision to which a party’s documents may be relevant, the Court will have a discretion to order discovery.  The need to establish a basis for the suspicion described by Brennan J in W.A. Pines will generally be confined to the kind of case to which he was adverting.  In the normal case, the pleadings will adequately ground the order. 

22                  Decisions of the Full Court of this Court in Somerville, Caltex Refining Co Pty Ltd v AMWU (unreported, Full Court of the Federal Court, 6 December 1990) (“Caltex”), and CanWest have progressively limited the scope of an objection to discovery upon the ground that the applicant for discovery is “fishing”.  As others have already noted, giving discovery will often, if not always, reveal documents of which the other party was not previously aware:  cf CC (NSW) Pty Ltd at 438.  The Court has accepted, at least as a general principle, that a fishing objection should not be permitted to succeed to the extent that it prevents a party from obtaining the material that is necessary for a fair trial.  As Burchett J (with whom Lockhart and Gummow JJ agreed) said in Caltex:

This [fishing] objection to applications for discovery of documents does not now have the weight it was once thought to have.  Perhaps it should be seen as a metaphor with more colour than substance.  Modern procedures actually provide as something desirable for what might once have been criticised as fishing – see Order 15A of the Rules of this Court, particularly Rule 6.  It would be ironic if the Court refused an applicant, on this basis, discovery after action, when discovery could have been obtained (at the expense of incurring extra costs) by an application before action.

Discovery should be controlled, and may be limited to documents relevant to particular issues, but it is a valuable weapon in the armoury of justice.  The real objection which, in some cases, justifies discovery being limited to particular issues is the objection of oppression. 

The Full Court in CanWest approved those observations.  Of a fishing objection, the Full Court in CanWest said:

[I]t was contended in these matters, for the applicant, that the discovery ordered in favour of the respondents enabled them to engage in a mere “fishing exercise” in pursuit of a case unsupported by anything other than bare assertion. 

The objection encapsulated in a metaphorical expression “fishing” has been understood as a good ground to deny an order for discovery for a very long time.  It was stated in Bray on Discovery (1885) at 16:

“Discovery is given in courts of equity to assist a plaintiff in proving a known case, and not to assist him in a mere roving speculation, the object of which is to see whether he can fish out a case”.

What this means was explained, and the metaphor was elaborated, by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250 at 254:

“A ‘fishing expedition’, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.” 

But by the late twentieth century, the law has undergone some change in favour of the doubtful plaintiff wishing to penetrate the obscurities of a dark pool.  He may, in a range of cases, utilize the provisions of Order 15A rule 6 of the Rules of Court of this Court, or similar rules in other courts, which are expressly framed to enable him to investigate a possible claim by means of the process of discovery of documents.  Rule 6 takes, as a sufficient starting point for an order of discovery before action, a situation where “there is reasonable cause to believe that the applicant has or may have the right to obtain relief”.  (Emphasis added.)  The power to order discovery in a case actually pending in the Court can hardly be less extensive than the power which may be used to gain discovery for the benefit of a person who is without evidence even to mount a case, and so resorts to Order 15A.  

23                  Whilst the legitimate scope of a fishing objection has been narrowed, a fishing objection may still be properly made.  An application for discovery will be regarded as “fishing” when its purpose, properly characterised, is to ascertain whether a case exists, and not to compel the production of documents for a case known to exist, in the sense that the applicant for discovery already has some evidence for it:  cf CC (NSW) Pty Ltd at 438. 

is discovery appropriate?

24                  Is it appropriate, in the circumstances of the case, to make an order for discovery? 

25                  In the Revised Schedule for Discovery, the applicants have sought to categorise and limit the documents to which they seek access.  The validity of those categorisations and limitations is not as readily apparent as it might otherwise be, because there are no pleadings in these applications.  That has proved unsatisfactory in a number of respects.  In the end, however, I do not think that anything turns upon the absence of pleadings so far as the discovery application is concerned.  There is by now a good deal of affidavit material filed by the applicants and the first respondent bearing on the applicants’ claims.  Further, as already noted, the first respondent has produced the Departmental memoranda and attachments provided to her for the purpose of assisting her in determining whether or not the s 16 notices were to be issued.  Having regard to the affidavit material, the memoranda and the submissions of counsel, the nature of the relevant disputed or non-admitted facts is, I think, tolerably clear. 

26                  It is to be borne in mind that these proceedings have reached a stage where the applicants, by their amended applications, have set out their cases in some detail.  Moreover, at an earlier stage, I concluded that, for the purposes of an application for an interlocutory injunction, there were serious issues to be tried in relation to some of the claims made by the applicants. 

27                  Before proceeding further, it is also relevant to note that the applicants’ submission on the discovery applications depends to some extent on what is sometimes called the “Carltona principle”:  see Carltona Ltd v Commissioners of Works [1943] 2 All ER 560.  For present purposes, it suffices to say, as did the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24, especially at 45 per Mason J and 66 per Brennan J, that a Minister may retain power to make a decision while relying on relevant Departmental officers to draw the Minister’s attention to the pertinent facts.  If the Departmental officers fail to do so, the Minister’s ignorance does not preserve the decision from successful challenge.  At least for the purposes of the discovery application, the first respondent conceded that if she accepted the advice tendered to her by Departmental officers, then she must be taken to have taken into account, in a constructive sense, the matters which they took into account.  For present purposes, I also accept that if the Departmental officers failed to take a matter into account, then, absent contrary indication, so too did the first respondent.

28                  As already noted, Category (I)(1) of par 1 of the Revised Schedule for Discovery seeks production of documents in the possession, custody or power of named Departmental officers relevant to the recommendation made to the first respondent and concerning “any disclosure or communication by Mexico of any Amparo Stays” in respect of the relevant warrants.  Documents of the same description are sought in par 2, Category (1), and in par 3, Category (1), of the Revised Schedule.  None of the recommendation memoranda prepared by the Departmental officers for the first respondent’s assistance contains any reference to the Amparo stays.  It follows that either Mexico did not disclose to Australia the existence of the stays prior to the preparation of the relevant memorandum, or the relevant Departmental officers were told of the grant of the stays but did not include in that document a reference to them.  Those issues of fact are relevant to a number of the grounds relied upon by the applicants, including non-disclosure, relevant consideration, and unreasonableness.  In the circumstances, the applicants are entitled, in my opinion, to discovery of documents within Category (I)(1) of par 1, and Category (1) of pars 2 and 3 of the Revised Schedule for Discovery. 

29                  For much the same reason, I am of the view that the applicants are entitled to discovery of the documents sought in Category (I)(2) of par 1 and Category (2) of par 2 of the Revised Schedule for Discovery.  The relevant Departmental memoranda contain no reference to the possibility that the prosecutions may have become time-barred.  Discovery may assist in determining whether or not Mexico disclosed that possibility to Australia and whether, in consequence, the relevant Departmental officers knew of it, even though they did not include reference to the possibility in the relevant memoranda provided to the first respondent.

30                  I am also of the view that the applicants are entitled to discovery of the documents sought in Category (I)(4)(A) and (B) of par 1 and Category (4)(A) and (B) of par 2 of the Revised Schedule for Discovery.  The documents sought are documents in the possession, custody or power of named officers relevant to the recommendation made to the first respondent and concerning any consideration by her or on her behalf of the relevant Amparo stays and their effect on matters falling for consideration by reason of s 16 (and s 6) of the Act.  As already noted, I accept, for present purposes, that if the Departmental officers failed to consider a requisite matter, the first respondent’s ignorance would not protect her decision.  Discovery of the documents referred to may assist in determining some of the basal factual issues upon which the relevant consideration and unreasonableness grounds may depend.  For substantially the same reason, the applicants are, in my opinion, also entitled to discovery of the documents described in Category (I)(5) of par 1 and Category (5) of par 2 of the Revised Schedule for Discovery. 

31                  I am not disposed, however, to order discovery of the documents sought in Category (I)(3) of par 1 and Category (3) of par 2 of the Revised Schedule for Discovery.  These categories relate to the natural justice and unreasonableness grounds.  Each applicant seeks documents within the possession, custody or power of named Departmental officers relevant to the recommendation made to the Minister and concerning

any allegations made by Mexico or information provided by Mexico concerning the applicant’s “flight” from Mexico, his association with [the other applicant], his history, character or conduct.

32                  In invoking the principles of natural justice, the applicants have alleged that:

The first respondent was required to afford to the applicant an opportunity to make submissions and to be heard before the issuing of the notice, which obligation required the first respondent to provide the applicant with copies of the relevant supporting documents, which she failed to do despite express requests by the applicant.

By way of particulars, it is alleged, amongst other things, that the first respondent breached her duty by reason of the fact that she received “a large body of information and documentary material from Mexico which included a large number of highly prejudicial allegations made by Mexico about the applicant concerning his ‘flight’ from Mexico, his association with [the other applicant], his history and character” etcetera.  Whilst I have some doubts as to whether these particulars are, in truth, particulars of the principal allegation, nothing may turn on this.

33                  As it has been outlined to me, each applicant’s case at this point is that, despite his repeated requests, he received none of the “supporting” documents (i.e., the relevant extradition request and attachments, as well as, perhaps, the Departmental recommendation) prior to the giving of the relevant s 16 notices and was, therefore, afforded no opportunity to contest the contents of the “supporting” documents.  As to this ground, there is really no dispute as to the facts:  the first respondent does not allege that she gave copies of such documents to the applicants prior to giving the relevant s16 notices.  In consequence of the proceedings, however, each applicant now has copies of the relevant recommendation memoranda, extradition requests and attachments, and, in consequence, the material on which he necessarily relies to make out his natural justice ground. 

34                  The applicants do not claim that any other specific allegation or piece of information was made or given by Mexico adverse to their interests.  The requested discovery is, at this point, general and non-specific.  There is nothing to indicate that Mexico made any allegations concerning the applicants’ flight from Mexico, etcetera, that are not contained in the relevant memoranda.  Counsel who appeared on the applicants’ behalf submitted:

[W]e believe our case, as to the natural justice point, would be significantly enhanced by being able to say that there was this body of material which was highly prejudicial which was taken into account [by a Departmental officer], in his capacity as making a recommendation to the Minister, and we weren’t told about it.

There was no indication of precisely what those matters of “high prejudice” were and, as I have said, there was no basis to suggest that there were additional matters, not contained in the recommendation memoranda to the first respondent and adverse to the applicants, that were conveyed by Mexico to the relevant Departmental officers.  It seems to me that what the applicants are seeking to do at this point is to “fish” for possible additional breaches of the rules of natural justice, in order to make out a further case which does not presently exist. 

35                  As already noted, the focus of the unreasonableness grounds is on the grant and effect of the Amparo stays, and the existence and effect of statutory bars to prosecution.  There are also references to the applicants’ claims of political persecution, as well as to the allegations made by Mexico concerning the applicants’ flight from Mexico, their association with each other, their history, character and conduct.  In support of discovery directed to this latter aspect of the unreasonableness grounds, the applicants’ counsel submitted:

We would say in substance that these cases are really quite remarkable unprecedented, probably in Australian terms.  Requests being made, charges statute-barred, serious questions about limitations, strong allegations of political persecutions substantiated, not just in the air, and yet against all that one sees a decision-making process that was rushing towards what was apparently an inevitable conclusion. 

In written submissions, the applicants’ counsel also called in aid the observations of Hill J in CanWest at first instance to the effect that an unreasonableness ground can only be made out when all the material before the decision-maker is available to the Court. 

36                  As I have already indicated, there is nothing to indicate that Mexico made any allegations (or provided any information) about the applicants’ “flight” from Mexico, etcetera, that are (or is) not contained in the recommendation memoranda, and the applicants allege no specific additional matter was disclosed to Australia.  Of this ground, in connection with a contested subpoena, Finn J said in Pasini v Vanstone [1999] FCA 1271 at par 38 as follows:

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 decisions.  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’s case above. 

I do not think that the position is any different with respect to this aspect of the applicants’ discovery application.  For much the same reasons as I have given with respect to the natural justice ground discussed above, it appears to me that the applicants seek discovery of documents about Mexico’s allegations about the applicants’ “flight” from Mexico, etcetera, in order to see whether they have some additional case to put under the unreasonableness grounds.  I do not think that Hill J in CanWest at first instance intended to countenance such a result.  No basis is shown to support the proposition that Mexico made any statements to the relevant Departmental officers, which were prejudicial to the applicants, beyond those appearing in the extradition request (including its attachments) and the relevant recommendation memoranda.  In any event, it seems to me likely that, in the circumstances of the case, if the applicants’ principal submissions concerning the effect of the Amparo stays and the statutory bars on prosecution were accepted, then the applicants would not necessarily be defeated by reason of the fact that the Court did not have all the other material before the relevant Departmental officers at the time the relevant recommendations were made, even though the ground relied on was that of unreasonableness.

37                  For much the same reasons, I do not think that the applicants are entitled to discovery in the terms of Category (I)(6) of par 1, Category (6) of par 2, and Category (3) of par 3 of the Revised Schedule for Discovery.  When regard is had to the relevant terms of the s39B applications, the requests are general and non-specific.  They suffer from the same defects as the requests discussed above in connection with Category (I)(3) of par 1 and Category (3) of par 2 of the Revised Schedule for Discovery.

38                  Further, in relation to Category (I)(3) and (6) of par 1, Category (3) and (6) of par 2, and Category (3) of par 3 of the Revised Schedule, it may also be relevant to consider the character of the s16 decisions under challenge: cf Pasini v Vanstone [1999] FCA 1271 at par 35 per Finn J.  Finn J drew attention to the fact that the extradition procedure established under the Act consists of a number of separate but interrelated stages;  and that each s 16 decision is but one amongst a number of administrative decisions which eventually lead to the making of a final decision under s 22 of the Act.  The time for making that final decision has not yet come and, in any event, it is not under challenge in these proceedings.  In that circumstance, the applicants’ entitlement to discovery should not be extended beyond that which is ordinarily appropriate.

39                  There remain to be considered two further categories.  In the proceeding in V 120, Mr Pasini seeks access to documents in the possession, custody or power of named officers relevant to the recommendation and concerning “the query appearing on the last page of the memorandum … to the effect of the following terms:  ‘Would there have been a problem in giving him the [doc’s] this morning first thing?  Can someone please give me an outline?”:  see Category II.  If such a document exists and is produced, it may throw light on the decision-making process the subject of the proceeding and, in particular, it may qualify some aspect of the relevant recommendation memorandum.  It seems to me that, the first respondent having disclosed that memorandum, Mr Pasini is entitled to discovery of any document within Category II.

40                  In the proceeding in V 222, Mr Cabal seeks discovery of documents in the possession, custody or power of named officers relevant to the recommendation and concerning

the matters addressed in the submissions made in the memorandum from Mexico dated 10 March 1999 referred to in paragraph (1)(g) of the Particulars to paragraph (1)(i) of the Further Amended Application in V 222 of 1999.  (Category (2) of par 3 of the Revised Schedule for Discovery)

Paragraph (1)(i) of the V 222 application alleges that the first respondent breached her obligation to afford Mr Cabal an opportunity to reply to the submissions of Mexico dated 10 March 1999, answering the reasons proffered by Mr Cabal’s solicitors as to why a s 16 notice should not be given.  Paragraph (1)(g) of the particulars alleges that she failed in her duty to accord natural justice in that she

received in response to the submissions made to her by the applicant (dated 24 February 1999) a memorandum from Mexico (dated 10 March 1999) (“the Mexican memorandum”) which contained highly prejudicial allegations against the applicant and his solicitors: 

(i)                 without informing the applicant that she had so received the Mexican memorandum;

(ii)               without informing the applicant of the nature of the prejudicial allegations contained within the Mexican memorandum;

(iii)             without providing the applicant with any opportunity to reply to the prejudicial allegations within the Mexican memorandum;

(iv)             the applicant being in custody and therefore his whereabouts and movements were subject to legal control.

41                  In the course of the proceedings, Mr Cabal has received a copy of Mexico’s submissions of 10 March 1999.  He is, therefore, now aware of what was then said by Mexico concerning him.  It is the failure of the first respondent to make the contents of that document available to him before giving the relevant s 16 notice which founds his natural justice claim in proceeding V 222.  That claim does not depend upon the existence or production of the documents referred to in category (2) of par 3 of the Revised Schedule for Discovery.  In seeking discovery of those documents, Mr Cabal is, it seems to me, seeking to find additional material to support an additional (and at present unknown) case against the first respondent.  He is not, in my opinion, entitled to discovery of those documents. 

42                  For the reasons given, the first respondent will be required to give discovery of the following categories of documents set out in the Revised Schedule for Discovery prepared by the applicants: 

Revised Schedule for Discovery, par 1(I)(1), (2), (4), (5); (II)

Revised Schedule for Discovery, par 2(1), (2), (4), (5)

Revised List of Documents, par 3(1).

I invite the parties to prepare a minute of orders in conformity with these reasons for judgment.

Associate:

Dated:              15 December 1999

V 120 of 1999:

V 121 of 1999:

V 222 of 1999: