United Mexican States v Cabal & Anor M74/2001 [2001] HCATrans 329 (20 July 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M74 of 2001

B e t w e e n -

UNITED MEXICAN STATES

Applicant

and

CARLOS CABAL (PENICHE)

First Respondent

LISA HANNAN M

Second Respondent

ATTORNEY-GENERAL (COMMONWEALTH)

Third Respondent

Application for a stay and expedition

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 20 JULY 2001 AT 12.00 NOON

Copyright in the High Court of Australia

MR G.T. PAGONE, QC: May it please the Court, I appear with MS K.P. HANSCOMBE for the applicant. (instructed by the Director of Public Prosecutions (Commonwealth))

MR G. GRIFFITH, QC: If your Honour pleases, I appear with MS D.S. MORTIMER for Mr Cabal. (instructed by Fernandez Canda Gerkens)

MR B.E. WALTERS: May it please your Honour, I appear for the Attorney-General for the Commonwealth. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes. Is there any appearance for the second respondent? There has not been to date, has there?

MR GRIFFITH: No, your Honour. Your Honour, I have a preliminary objection - I am unsure as to the extent to which I may maintain it - but my instructions are that the Attorney-General of the United States of Mexico has issued a press release in the last few minutes and is making a speech, your Honour, accepting the effect of a decision made by Justice Kirby yesterday and expressing his view that Mr Cabal had already been released. On that basis, your Honour, I wish to challenge whether or not those who have instructed my learned friend - he informs me he has been instructed - have, indeed, been instructed by the Attorney-General on behalf of the United States of Mexico to maintain this application.

HIS HONOUR: Yes.

MR GRIFFITH: I did previously challenge before Justice Kirby the capacity of the United States of Mexico to be a party on a bail application pursuant to the implied jurisdiction of the Court. Justice Kirby ruled against me on that. My contention is, your Honour, that this should be a matter, so far as the question of bail is concerned, involving Australia as a party to the extradition treaty with Mexico in discharging its obligations and not one where the United States of Mexico has any interest.

His Honour Justice Kirby ruled against me on that argument, but nonetheless, your Honour, I would seek to maintain the position that on the face of things, your Honour, it should be the Attorney-General who should be acting in a balanced way on issues of whether or not there should be bail, having regard to the special circumstance, and not the United States of Mexico as merely entitled, your Honour, to Australia to honour its obligations under the treaty and the Extradition Act.

So there are two elements, your Honour, one, that we would still wish to challenge the position of the United States of Mexico going this extra round, when they have already had two full hearings on the merits before Justice Kirby; but, secondly, your Honour, as we understand it, it does not appear that the United States of Mexico in its public statements in Mexico being made this hour is taking the position that my learned friend is making on his application.

HIS HONOUR: Yes. Well, if you want to challenge Mr Pagone's retainer, you can challenge it on some evidence.

MR GRIFFITH: Your Honour, we are seeking to have faxed over now the statement - - -

HIS HONOUR: No, just listen to me for a minute. These matters tend to get out of control. This matter is not going to get out of control. What I have in mind at the moment is to, on this summons, order that the stay ordered by Justice Kirby of his orders made yesterday, 19 July, be extended up to and including 4.30 pm on Wednesday next, 25 July; to stand over the further hearing of the summons to the Court at Sydney on Wednesday, 25 July, at 10.15 am, when I would apprehend it will be dealt with by the Chief Justice and myself; and to provide for costs of today to be costs of the summons. If you wish to challenge Mr Pagone's retainer to appear on the summons as representing United Mexican States, you can fold that into the submissions to be dealt with next Wednesday.

MR GRIFFITH: If your Honour pleases - - -

HIS HONOUR: And I am not acting on faxes or anything else, Dr Griffith. This is ridiculous, frankly.

MR GRIFFITH: Your Honour, the result of that order would be that Mr Cabal does remain in detention until Wednesday.

HIS HONOUR: That is right. Another four days.

MR GRIFFITH: Yes. Your Honour, each day for him, on my instructions, is unbearable.

HIS HONOUR: It may be unbearable.

MR GRIFFITH: Yes. Would your Honour hear me on whether this stay should be not applied until Wednesday?

HIS HONOUR: Yes, of course I will.

MR GRIFFITH: Has your Honour been able to read the judgment of Justice Kirby made the - - -

HIS HONOUR: It is not available yet.

MR GRIFFITH: Can I hand your Honour - - -

HIS HONOUR: I do not make that a criticism of anybody that it is not yet available.

MR GRIFFITH: No, your Honour. Your Honour, I indicated the judgment of 29 June - has your Honour had an opportunity to read that?

HIS HONOUR: Yes, I have looked at that.

MR GRIFFITH: Yes.

HIS HONOUR: I was talking of yesterday's reasons. It is no criticism of anybody. It would be surprising if they were available. In any event, they will not have been sufficiently available to be digested by counsel or myself.

MR GRIFFITH: Yes. But your Honour has read the judgment of 29 June?

HIS HONOUR: Yes.

MR GRIFFITH: Your Honour, the effect of his Honour's judgment yesterday on reviewing further affidavit material and evidence taken before him and exhaustive submissions made by the United States of Mexico and all the material they wished to bring forward, your Honour, was that there were exceptional circumstances justifying an order for release, which his Honour was prepared to stay only until 4.30 today. In my submission, your Honour, for the reasons stated by Justice Kirby after this full review, it is appropriate that the - - -

HIS HONOUR: A stay of 24 hours is far too short. This is in vacation. There are enormous exigencies pressing upon the Court in these circumstances. The only reason for the stay until next Wednesday involves no view of the merits at all. It is simply to provide a sufficient opportunity for considering the matter as far as the Court is concerned.

MR GRIFFITH: I understand that, your Honour. The difficulty is, your Honour, underlying this is - - -

HIS HONOUR: And if I proceeded today, I would grant the stay and reserve, and that is not going to help anybody.

MR GRIFFITH: If your Honour pleases.

HIS HONOUR: Yes, Mr Pagone.

MR PAGONE: Your Honour, we would be content with the orders that your Honour indicated you were minded to make, extending the stay until next Wednesday at 4.30, on the anticipation that the matter would be heard Wednesday morning in Sydney at a quarter past 10.

HIS HONOUR: Yes. There is another aspect of the matter which I want the parties to consider. I have had discussions concerning the state of the list with the Chief Justice and it would now be the position that the special leave application in this, what I might call the substantive matter - and that is a special leave application by both Pasini as well as Cabal, I think - would be taken in Canberra as the second matter in the list on Thursday, 6 September, to go over to Friday, 7 September.

MR PAGONE: That would be convenient to us, your Honour.

HIS HONOUR: Yes. Is that convenient to you, Dr Griffith? I am afraid it has to be.

MR GRIFFITH: It must be convenient to my client, your Honour, whatever my convenience is.

HIS HONOUR: Yes. I would have in mind that next Wednesday we could also give directions to make sure that application is ready for hearing, the submissions and so on in proper order, in adequate time to consider before the 6th and 7th. The question will then arise, which we will also consider next Wednesday, as to whether these two interlocutory applications for leave to appeal in the bail matters will also be dealt with on those two days.

MR GRIFFITH: That would give rise to the question of the stays, as well, your Honour.

HIS HONOUR: That is right.

MR GRIFFITH: Yes. Would your Honour order my learned friend to deliver written submissions by 12 noon on Monday, of his contentions for the stay, including, your Honour, the basis of the jurisdiction?

HIS HONOUR: Yes. Well, I will hear him on that.

MR PAGONE: Your Honour, I am perfectly happy to provide the submissions. 12 noon might be - - -

HIS HONOUR: It seems a bit early.

MR PAGONE: - - - just a bit early, but depending on how long my learned friend thinks he needs to read and respond, but I am happy enough to - - -

HIS HONOUR: Now, what is the attitude, Mr Walters, of the Attorney-General to these proposals?

MR WALTERS: I have not any instructions to oppose that proposal, your Honour.

HIS HONOUR: Very well. Would you be wishing to put on written submissions in addition to Mr Pagone?

MR WALTERS: If so, we could do it by then. At this stage - - -

HIS HONOUR: Well, I will make no order about it, but if you are going to put them on, they had better go on at the same time as his.

MR WALTERS: Yes.

HIS HONOUR: All right. Now, has there been any service on the second respondent of this summons? Something should be done about that by next Wednesday.

MR PAGONE: Your Honour, I am instructed that they have - subject, of course, to my learned friend wanting to challenge my instructions, but my instructions are that there has.

HIS HONOUR: Yes. Now, normally a challenge to retainer has to be by a specific procedure, does it not?

MR GRIFFITH: Yes, your Honour. One difficulty is because we have really had no notice until we were served an hour ago, your Honour - - -

HIS HONOUR: No, I understand that. Are you proposing to put on a cross-summons, as it were, or a cross-motion?

MR GRIFFITH: Your Honour, we will review our instructions on what are the public pronouncements by the Attorney in Mexico and we would propose that - - -

HIS HONOUR: It will be sufficient if you turn up with the relevant process, if you are going to have it, on next Wednesday.

MR GRIFFITH: If we have the summons next Wednesday.

HIS HONOUR: Provided your written submissions that will go on in the meantime really dealt with the substance, if there is to be substance.

MR GRIFFITH: Yes. Well, your Honour, I accept my learned friend's indication he has instructions, but at least they are on notice, your Honour, as to that matter.

HIS HONOUR: Yes, all right. If there is an indication of the position of the second respondent, that could be conveyed to the Registrar and she can provide a certificate for next Wednesday. So these are the orders I propose to make.

1. On the summons filed 19 July 2000 in matter No M74 of 2001, order that the stay ordered by Justice Kirby of his orders made on 19 July 2001 be extended up to and including 4.30 pm on Wednesday, 25 July 2001.

2. Stand over the further hearing of the summons to the Court at Sydney on Wednesday, 25 July 2001, at 10.15 am.

3. Outline of submissions by the applicant on the summons be filed and served on or before 4.00 pm on Monday, 23 July, and by the first respondent on or before 4.00 pm on Tuesday, 24 July. Costs of today be costs of the summons, certify for counsel.

And although it is not formally before me today, I have indicated to the parties that the leave applications in the substantive matters, if I can put it that way, are to be listed for Thursday and Friday, 6 and 7 September, commencing as the second matter in the list in Canberra on the 6th. Yes, thank you, gentlemen.

AT 12.16 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 25 JULY 2001