FEDERAL COURT OF AUSTRALIA

Cabal v United Mexican States (No 3) [2000] FCA 340

PROCEDURE – status of “Ruling” – request to change Ruling to order.

CARLOS CABAL PENICHE & MARCO PASINI BERTRAN v UNITED MEXICAN STATES & ANOR (No 3)

V 728 of 1999

GOLDBERG J

MELBOURNE

22 MARCH 2000

RULING

HIS HONOUR:

1                     On 15 March 2000 I published reasons in respect of the conclusions I had reached in relation to matters which were argued before me on 9 March 2000.  Those reasons are headed “Ruling” because the conclusion that I had reached, albeit through the chain of reasoning referred to in the reasons, was that certain evidence which has been filed on behalf of the applicants in support of their further bail application should not be allowed into evidence and that certain issues which I identified in par 42 of that ruling were not matters which I regarded as appropriate, for the reasons given, to be dealt with on the further bail application.

2                     The matter came before me for further directions, consequent upon my ruling, on 21 March 2000, when I gave further directions for the filing of material.  This morning my associate received a communication by facsimile transmission from the solicitors for the applicants, which in substance enquired as to whether I would be disposed to make an order formally in line with my published reasons.  I had communicated to the parties, through my associate, that any consideration of such a matter should be made by way of application in open Court, in the presence of all the parties and their legal advisers, and that is how the matter has come before me, albeit unusually, this afternoon.

3                     I have been informed that an application will be heard by a Full Court of this Court tomorrow, for leave to appeal - and I am speaking loosely for the moment - for leave to appeal against the substance of my ruling and, if such leave is granted, that the appeal be heard forthwith.

4                     Mr Gilmour who appears with Mr Howard for the applicants has informed me, in general terms, this afternoon that there either is, or may be, an issue as to whether my ruling can properly be the subject of an application for leave to appeal, and if such leave were to be granted, an appeal.  Accordingly, he submits that it is appropriate that, in substance, I either convert my ruling into an order or make an order consequent upon my ruling.

5                     The manner in which the ruling came about is substantially referred to in the reasons contained in that ruling.  Although I had to consider, in the course of that ruling, issues of the proper construction of s 21(6)(f)(iv) of the Extradition Act 1988 (Cth), the substantive reason for making the ruling at the stage I did was for the purposes of delineating and defining the scope of the material which was admissible on the side of the applicants so that there could be, not only an understanding of what were the issues to be before the Court, but also so that the first respondent knew what matters had to be considered for the purposes of answering material.

6                     In the circumstances I do not consider that I should, either convert the ruling into an order or, make an order consequent upon the ruling.  Certainly no separate question for determination was identified or set aside for separate determination in the terms of O 29 r2 of the Federal Court Rules and the submissions which were made before me on 9 March 2000 were, in my view, part of the motion which was before me for bail by the two applicants; that is, the motion dated 9 February 2000. 

7                     In my view, what I was doing, albeit through the chain of reasoning referred to in the ruling, was determining what evidence was to be admissible for the purpose of determining the scope, not only of the material to which the first respondent had to respond, but also the scope of the issues to be covered in this application for bail, scheduled to commence in a few days’ time.

8                     In those circumstances it seems to me that what, in effect, is presently before me is a continuation of the hearing of the motion, filed 9 February 2000, for bail by the applicants, and that the matters which I addressed in my reasons on 15 March 2000 were matters appropriately addressed by way of a ruling.  Having regard to the manner in which the issues arose, and to the consequences and implications of not dealing with what was in effect objections to admissibility of evidence, it seems to me that my ruling as a ruling should stand and that at this stage of this part‑heard proceeding it is not appropriate for me to make any further order, decree or declaration, or give any other form of judgment at this time in relation to the part-heard proceeding.

9                     The first respondent’s costs of the hearing this afternoon should be paid by the applicants and I so order.

Associate:

Dated:              22 March 2000