United Mexican States v Cabal & Ors M74/2001 [2001] HCATrans 330 (25 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

GLEESON CJ

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 25 JULY 2001 AT 10.18 AM

(Continued from 20/7/01)

Copyright in the High Court of Australia

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

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

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: If the Court pleases, I appear with MR B.E. WALTERS for the third respondent. (instructed by the Australian Government Solicitor)

GLEESON CJ: There is a certificate from the Deputy Registrar to the effect that she has been informed by the Deputy Chief Magistrate on behalf of Magistrate Hannan, the second respondent in this matter, that the second respondent does not wish to appear and will abide by the order of the Court. Yes, Mr Pagone.

MR PAGONE: If the Court pleases. Your Honours have before the Court today a summons that was issued on 19 July 2001 issued pursuant to an application for leave to appeal also issued on that day, 19 July 2001, from an order made by Justice Kirby also on that day. The order that his Honour made was that Mr Cabal was to be granted bail pending the hearing and determination of his special leave application.

GLEESON CJ: All we have before us is an application for an extension of the stay that was granted by Justice Gummow in Melbourne last week.

MR PAGONE: Your Honour, we think that is right.

GLEESON CJ: Then it may be useful just to clear the decks in relation to the hearing of the application for leave to appeal against the judgment of Justice Kirby. I think Justice Gummow foreshadowed in Melbourne last week that the matters that were some time ago referred to the Full Court, that is the applications for special leave to appeal being applications by Mr Cabal and by Mr Pasini, will be listed for hearing in Canberra on 6 and 7 September. They will not be the first matter in the list on 6 September because it is expected that there may be a part-heard matter going over from 5 September. But, subject to that part-heard matter, those cases will be listed for hearing on 6 and 7 September.

Subject to anything that anybody wants to say to the contrary, we will also list for hearing on those days before a Full Court the applications for leave to appeal against the decisions of Justice Kirby. As I understand it, as well as your application for leave to appeal against Justice Kirby's decision in relation to Mr Cabal, you also have an application for leave to appeal against a decision of Justice Kirby in relation to Mr Pasini.

MR PAGONE: That is correct, your Honour.

GLEESON CJ: So that what will be heard in Canberra on 6 and 7 September before a Full Court will be Mr Cabal's application for special leave to appeal against a decision of the Full Court of the Federal Court, Mr Pasini's application for special leave to appeal against a decision of the Full Court of the Federal Court, your application for leave to appeal against a decision of Justice Kirby in the matter of Mr Pasini and your application for leave to appeal against a decision of Justice Kirby in the case of Mr Cabal. As I understand it, Mr Pasini is not in custody at the moment.

MR PAGONE: That is correct, your Honour.

GLEESON CJ: What we are here to decide today is your application which relates to the custodial position of Mr Cabal for a stay of the order of Justice Kirby granting him bail between now and either the hearing or the resolution of your application for leave to appeal against Justice Kirby's decision. Which is it?

MR PAGONE: Our application for the stay would be - - -

GLEESON CJ: It says "pending the hearing" actually in the summons.

MR PAGONE: Yes, your Honour. It would be until the hearing of the leave to appeal, although it is possible that if special leave were granted to Mr Cabal, that would then create the statutory jurisdiction in the Extradition Act so that there would be a moot question so far as his Honour's order was concerned, although it is perfectly possible, as the Court has done in the past, that after hearing argument on a special leave application, which has been heard at the same time as the substantive issue, the Court does not announce whether leave is granted or not, so that one might have a hiatus, as it were, between the hearing of the case on 7 September and whenever the Court decided if leave should be granted.

GLEESON CJ: One possibility - and I just want to get clear which it is - is that Justice Gummow and I are today concerned with the position of Mr Cabal between now and 6 September. Another possibility is that Justice Gummow and I are today concerned with the position of Mr Cabal between now and the decision of the Full Court on the application or applications that are before it on 6 September. Which is it?

MR PAGONE: Your Honour, it is because of that question that we have prepared our written submissions on the basis that in fact your Honour might have both the application for a stay as well as a substantive hearing of the leave to appeal, because the latter possibility would - - -

GLEESON CJ: We are not going to deal with the application for leave to appeal against Justice Kirby. We are sitting in chambers to deal with an application for a stay of proceedings.

MR PAGONE: We understand that, your Honour, and indeed that was his Honour's order when we actually looked at it in printed form. We could see quite clearly that was so.

GLEESON CJ: The Full Court will deal with the application for leave to appeal against Justice Kirby's decision and, as I said, I expect that it will deal with that or, more accurately, that we will hear that on 6 and 7 September.

MR PAGONE: Yes, your Honour.

GLEESON CJ: Perhaps we will just leave open for the time being the question of whether we are dealing with the position between now and 6 September or now and some later time. We can return to that.

MR PAGONE: On the summary of events as your Honour put them it would really be between now and 6 September.

GLEESON CJ: All right. I think that clears that up.

MR PAGONE: As I hear, probably the 7th rather than the 6th.

GLEESON CJ: Yes, all right.

MR PAGONE: My learned friend has asked whether he could say something. I am always reluctant to agree to that because one is never quite sure what he is going to say.

GLEESON CJ: No, he will get an opportunity in due course.

MR PAGONE: I am indebted for that, your Honour. In that event, the issue before the Court is essentially whether the stay, having been extended to today, should be extended until 6 or 7 September. His Honour Justice Kirby granted bail pursuant to the inherent jurisdiction of the Court. We say that his Honour erred in that conclusion as a matter of law.

GLEESON CJ: What is the error? I presume you are not simply going to invite the Full Court to re-exercise a discretion on the matter, are you?

MR PAGONE: That is not our first point, your Honour, but yes, we do. The first point is that the inherent jurisdiction of the Court has been held in a number of cases to be a jurisdiction to be exercised for a very limited purpose. That very limited purpose is, if I may use these words, as an adjunct to the subject matter of the proceeding before the Court. It is not a general bail jurisdiction. That has been said in a number of cases by a number of different Justices of the Court.

GLEESON CJ: The relevant proceeding being Mr Cabal's application for special leave to appeal against the decision of the Full Court of the Federal Court?

MR PAGONE: That is correct, your Honour, yes, and that what must be special is not that there be circumstances such as those that his Honour considered, namely his Honour's view that detention for 30 months in the conditions that Mr Cabal finds himself are, in his Honour's view, special and exceptional and unacceptable, for the purpose of the argument that that be accepted. The point that is agitated at first instance, your Honours, is that such matters are not relevant to the exercise of the Court's inherent jurisdiction because they do not go to matters about typically the preservation of the subject matter of the appeal or as an adjunct to the exercise of that subsequent jurisdiction. They are not facultative of the Court's ability to deal with the issue when the special leave application comes on for hearing.

To that extent we say that his Honour plainly erred as a matter of law - not that the jurisdiction is not large; the jurisdiction may be accepted as being large. The question is: by what legal principles is that jurisdiction to be exercised? All the cases hitherto have said that in that hiatus period where there is no appeal instituted in this Court, there being no statutory jurisdiction in this Court to grant bail, the jurisdiction being limited to the rather special jurisdiction that flows from the need of this Court to preserve its subject matter, its processes and proceedings, what must be shown by way of special circumstances is that there is something particular about the man's condition that will impinge upon that jurisdiction.

That is the critical question. Is there anything about Mr Cabal's circumstances that impinges upon the ability of this Court to deal with the questions when it comes on for hearing? We say that when one looks at the material, his Honour did not proceed upon that basis at all. We say that what his Honour did was to look at the circumstances of Mr Cabal and to say that he adjudged that those circumstances, having gone on for 30 months, were in his view unacceptable. Putting to one side whether that is or is not the correct conclusion for the moment on the merits, as it were, we say that as a matter of law his Honour simply erred in that issue.

We do, however, say that even if one jumps the first hurdle that there are special circumstances to justify the invoking of the Court's jurisdiction, that his Honour erred by not taking into account fundamental matters such as the fact that in extradition cases there is a presumption against bail. The presumption against bail, your Honours, is expressed in the Act by reference to words that might create ambiguity and uncertainty when this jurisdiction is concerned. The presumption against bail can be seen by the fact that you only get bail in extradition cases if there are special circumstances shown. That is to say, ordinarily there is no bail.

That is a different question, special circumstances, from whether the Court's jurisdiction ought to be invoked. If there are special circumstances in the way that we have identified that would justify the Court invoking the jurisdiction to grant bail, one must then ask a separate question: what the special circumstances that would mitigate against the presumption against bail? That is clearly in the Act in terms, clearly seen by the decisions of this Court in other cases and by other courts, in the Federal Court, for example, and what we would say there is that his Honour simply placed no weight at all upon the fact that there is a presumption against bail. There is a presumption that the decisions below are correct. His Honour makes no reference to the latter at all and he ought to have done so. So that the position that Mr Cabal finds himself in, we would say, is the position that he quite properly finds himself in, quite lawfully finds himself in, and he ought to be there.

We also do say, your Honours, that so far as the special circumstances are concerned that his Honour referred to, they are, with respect, not circumstances that would justify that conclusion. The evidence is that Mr Cabal finds himself in circumstances that are undoubtedly unpleasant, but there is nothing about him that we would say justifies a conclusion that there is anything out of the ordinary. It is not as though he is being singled out in any particular way. Those issues were looked at on an evidentiary basis quite fully in a number of instances in the Federal Court and each justice to have considered that, applying the standard that is acceptable to Australian general conditions, led them to conclude that there was nothing about the circumstances as a matter of fact when looked at singly or in combination that would justify the rather unusual conclusion.

GLEESON CJ: You may be assuming I know more about this case than I do, Mr Pagone. What was the issue that arose in the Full Court to which you were just referring?

MR PAGONE: The same issue as the one that was considered by his Honour Justice Kirby.

GLEESON CJ: I see. I had understood that the Magistrate refused bail.

MR PAGONE: And there were then applications to the Federal Court and the justices of the Federal Court refused bail.

GUMMOW J: There was a proceeding that came here, was there not, for special leave?

MR PAGONE: There was indeed, your Honour, yes.

GUMMOW J: On 28 November last year.

MR PAGONE: I think that is right, your Honour, yes.

GLEESON CJ: That was the one that was heard in Melbourne.

MR PAGONE: I think that is right.

GLEESON CJ: And that was one, as I recollect it, that turned upon some legal question about the significance of the unavailability of separate facilities to deal with people the subject of extradition proceedings.

MR PAGONE: That is right, your Honour, but there certainly have been - I am reminded there was also an application for habeas corpus in the Supreme Court of Victoria which also failed. But bail was sought from the Magistrate on more than one occasion. Bail was sought from the - - -

MR GRIFFITH: That is untrue.

MR PAGONE: I am terribly sorry, I withdraw that. Mr Pasini - - -

GLEESON CJ: Just tell me, however, the history, including habeas corpus for this purpose as bail, of previous applications for bail or habeas corpus. One went to the Magistrate at some stage.

MR PAGONE: Your Honour, I thought it had gone to the Magistrate at one stage, but I hear - - -

GUMMOW J: There is an affidavit of Mr Caporale, is there not, under tab 1? Page 10, I think.

MR PAGONE: That deals with habeas corpus.

GUMMOW J: But not with bail. I could not find a separate heading for bail. Page 9.

MR PAGONE: That is one instance, your Honour.

GLEESON CJ: That seems to say that a magistrate decided on 5 March 1999 not to grant bail.

MR PAGONE: That is Pasini, I think.

GUMMOW J: Is that Pasini?

MR PAGONE: I think so, your Honour.

GUMMOW J: Yes.

MR PAGONE: I am not sure that I have a convenient place where the proceedings for bail are summarised. Whilst that is being looked for, I can tell your Honours that there are a number of applications that were made.

GLEESON CJ: Maybe Dr Griffith will be able to tell us in due course how many applications his client had made to be released before the matter came before Justice Kirby. Is it summarised in Justice Kirby's reasons for judgment?

MR PAGONE: I do not think it is, your Honour, no. In that affidavit that your Honour has, there is reference at page 6 at paragraph 29, "On 4 January 2000". That was considered by Justice Goldberg and Justice Goldberg decided against the grant of bail. I can tell your Honours - - -

GLEESON CJ: May I ask was Justice Goldberg the first person to whom a bail application had been made?

MR PAGONE: I believe so, your Honour. His Honour's decision in the copy of the decision I have is [2000] FCA 7.

GLEESON CJ: That application was refused by Justice Goldberg in December 1999?

MR PAGONE: 4 January 2000, your Honour.

GLEESON CJ: Right.

GUMMOW J: Then there was a second application, paragraph 30.

MR PAGONE: Then there was a second application in paragraph 30, yes.

GUMMOW J: It seems to have gone for some days.

GLEESON CJ: And that application was dismissed by Justice Goldberg on 20 April 2000?

MR PAGONE: That is right, your Honour, and the reference for that is [2000] FCA 525.

GLEESON CJ: Then there was an appeal against Justice Goldberg's refusal to grant bail and that appeal was discontinued in May 2000?

MR PAGONE: That is correct, your Honour. Then a request for bail was considered by Justice Gray on 20 December 2000.

GLEESON CJ: What about the proceedings before Justice French in April 2000? What were they?

GUMMOW J: They are the proceedings that are the root of the substantive matters.

MR PAGONE: They are the statutory matters, yes, that is correct. That is my understanding. It is statutory proceedings. It was an appeal under section 21 of the - - -

GLEESON CJ: So the next bail application came before Justice Gray in November 2000?

MR PAGONE: And was decided by his Honour on 20 December 2000.

GLEESON CJ: And he found in favour of Mr Pasini but against Mr Cabal.

MR PAGONE: That is correct. I have a reference to that, if your Honours please: [2000] FCA 1892.

GLEESON CJ: Then in February 2001 the Full Court of the Federal Court dismissed an application for leave to appeal against the decision of Justice Gray?

MR PAGONE: That is right, yes. That was a decision of Justices Heerey, Marshall and Merkel. That was a decision made on 21 February 2001 and the reference is [2001] FCA 97. Then there was an application, I think, before her Honour Justice Gaudron.

GUMMOW J: Yes, which her Honour stood over.

MR PAGONE: Yes, 31 May, your Honour.

GUMMOW J: This year?

MR PAGONE: Yes, this year.

GUMMOW J: And her Honour expressed the view that there was no statutory jurisdiction because there was as yet no grant of special leave.

MR PAGONE: That is correct, and her Honour also decided that there were no special circumstances shown.

GUMMOW J: She stood the matter over, did she not, in the event of a grant of special leave?

MR PAGONE: Yes, your Honour.

GUMMOW J: But there has been no grant of special leave.

MR PAGONE: What she said at page 52 of the transcript is:

However, it is common ground that that is not the question now to be answered.

This is in relation to the statutory issues.

That question -

that is the question before her Honour -

is whether there are special or exceptional circumstances which would warrant the exercise of this Court's inherent jurisdiction to grant bail pending the determination of an application for special leave to appeal. In general terms that jurisdiction exists to protect the judicial process and to serve the ends of justice.

GLEESON CJ: What did she decide about that?

MR PAGONE: I suppose, strictly, possibly very little but she did go on to say this, which suggests that she was not minded to adopt the same construction as his Honour Justice Kirby:

The special leave application brought by Mr Pasini and by Mr Cabal is to be heard in Melbourne on 22 June next, a little over three weeks from today. Having regard to that fact, and to the nature of the questions raised by the special leave application, I am not persuaded that it would be a proper exercise of this Court's inherent power to grant bail pending the determination of the special leave application.

In the course of argument - my learned friend asks me to note that on page 3 what her Honour said in relation to Mr Cabal was that the application of Mr Cabal:

will be stood over to be relisted on 48 hours notice, no relisting to occur prior to the determination of the special leave application to be heard on 22 June, 2001.

My point was not that. My point was the basis upon which she sought to be exercising jurisdiction which, with respect, is consistent with what she had said in earlier cases, namely that it is a jurisdiction to be exercised as an ancillary to, facultative of, the Court's process, that is to say, to ensure that the Court's processes are effective. So that the question is there needs to be found special circumstances that relate to the processes of the Court. Is there something about the circumstances that would in some way or other impede the Court's ability to deal with the matter when it comes on?

May I take the Court to a number of statements in which the courts have - - -

GUMMOW J: Perhaps before you do that, perhaps a question would arise then as to what was different in the circumstances as between the last round in the Federal Court earlier this year and now as to bail, so many courts having said so much on the subject over such a long period.

MR PAGONE: If you get to the question, your Honour, of special circumstances, that is to say the exercise of discretion, that is exactly right. One of the submissions that I had made before Justice Kirby was that the issue has been considered by the other justices exercising general community standards - indeed, general judicial community standards - and they were not persuaded that the circumstances were special. His Honour at the end of the day seemed to be persuaded by the significance of the fact of time. If I can take your Honours to what he said on the first occasion on 28 June. It is relevant to do this because the second time round last week, his Honour said, "I'm not going to repeat what I said before. I think that what I said before was correct". What he had said about special circumstances at page 179 of the transcript - - -

GUMMOW J: What paragraph?

MR PAGONE: I was just going to take - - -

GUMMOW J: It is in a pamphlet now.

MR PAGONE: I am sorry, at paragraph 7840, immediately above that. Does your Honour have that?

GUMMOW J: It is under a heading.

MR PAGONE: There is a heading.

GUMMOW J: What is the heading?

MR PAGONE: The heading is "The exceptional circumstances propounded by the applicants". That lists what the applicant was urging the Court to be special circumstances. All of these related to the conditions that Mr Cabal found himself in. Then there is another heading. "Conclusion: exceptional circumstances are demonstrated" is the heading that his Honour has, and there is a paragraph beginning:

I am not concerned about wider questions related to the suggested breach involved in these circumstances of Australia's obligations under the international human rights law. However, I am concerned with the consequences of such conditions upon the applicants. Such conditions might be endured with fortitude for a time. For a time, the courts might conclude that there was nothing special or exceptional in them. However, to subject the applicants for so many months to such conditions is undoubtedly exceptional. It is so by ordinary Australian custodial standards and by the standards which the Parliament clearly contemplated when it enacted the ameliorating instruction of section 53 of the Act.

At the end of the day, what was - - -

GLEESON CJ: But we are not sitting here this morning for the purpose of deciding whether we agree or disagree with Justice Kirby.

MR PAGONE: No, your Honour, but unfortunately in order for the stay to be granted or extended I may need to say something about the strength of the proposition for which leave is going to be sought and that is the only reason I traverse this territory, apart from the fact that his Honour Justice Gummow did ask a question.

Your Honour, there is a fact that has changed that is significant and that is that since the Full Court dismissed bail the Full Court has also dismissed the substantive application in relation to the appeal under the extradition process, so that the right of appeal from - as your Honour will be aware, the magistrate must first make a determination that the person is eligible for extradition. There is then a right of appeal to the Full Court. That appeal was exercised. Justice French decided in favour of the respondent, that is to say against the appeal.

GUMMOW J: Now, your point is the application for leave to appeal on the bail matter was dismissed by the Full Court on 21 February and on 18 April this year it then decided the substantive appeals which found the present special leave application?

MR PAGONE: That is right, your Honour. So that one of the circumstances that leads to the conclusion that being in custody is the correct thing, as it were, custody in part because that is the process that is involved and partly because there is a presumption against bail, that became complete after the last time the Federal Court considered the question of bail, so that we would say that, in so far as there is anything different between last time the courts considered them and the time that Justice Kirby considered them, apart from the passage of time nothing has happened. Apart from the passage of time nothing has happened that would justify the grant of bail. What has happened is that an appeal right that Mr Cabal had has been exercised and lost, hence, as it were, perfecting the entitlement to keep him in custody.

Your Honours, Justice Gummow would undoubtedly recall our learned friend specifically wanted us to say something about the jurisdiction of this Court to consider the present application and in our submissions we did - - -

GLEESON CJ: What do you mean by "the present application"?

MR PAGONE: The ability for this Court to consider the question of whether a stay should be granted, extended beyond the time granted by his Honour. All I was going to say, your Honours, is that in so far as there is an issue about jurisdiction - and we are not sure whether there is or there is not now - we have dealt with it in paragraphs 1 and 2 of our submissions. The leading case on the question generally, of course, is Burgundy Royale and the principal questions so far as the exercise of this Court's jurisdiction would seem to be for us to traverse something about the prospects of success on our special leave application to appeal the decision of Justice Kirby.

GLEESON CJ: Your leave application.

GUMMOW J: Leave application.

MR PAGONE: I am sorry, our leave application, I apologise - and the other matters to which his Honour referred. May I say something about each of those issues, hopefully briefly, but the one that I do want to say something about in a little, but not very much more, detail is the first one, the substantial prospects that special leave to appeal will be granted.

GUMMOW J: Is there a particular page in Burgundy Royale?

MR PAGONE: Yes, your Honours. Justice Brennan - if I can take - - -

GUMMOW J: Page 684, is it?

MR PAGONE: Pages 684 and 685. At 684 your Honour will see the paragraph:

A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.

And then at the top of 685:

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

If I can deal then with the first issue. This Court has had to consider the nature of its jurisdiction that his Honour Justice Kirby sought to exercise in a number of cases and the first thing that is relevant about that, your Honour, is that there is no statutory jurisdiction to grant bail pending a successful application for special leave to appeal. That was considered by his Honour Chief Justice Mason in Zoeller v Federal Republic of Germany [1989] HCA 67; (1989) 90 ALR 161.

GUMMOW J: We have 64 ALJ 137.

MR PAGONE: That always happens, your Honour. I was confident that it was not the Commonwealth Law Reports. In any event, your Honours will see that his Honour sets out the text of section 21(6) in his judgment. There is then a paragraph that begins with:

The applicant contends -

about six or eight lines into that:

That being so, I can see no justification for reading the words in sub-s(6)(c) otherwise than in accordance with their ordinary meaning. So read, the provision proceeds according to the rational view that the court is empowered to order the release of an applicant on bail only if it concludes that the case has that special character that justifies the grant of special leave and the applicant appeals pursuant to that grant. Unless the court makes such a grant, the appeal process is exhausted with the result that, in cases such as the present, there is a final order committing the applicant to prison.

And so on his Honour goes. That, your Honour, was accepted by Justice Kirby, as it were, as the starting point, although he did express himself as having some doubt about whether that is the correct view unaided by authority.

So that what one needs to find is whether there is a reason to exercise the inherent jurisdiction and the first point, your Honour, is this, that a number of Justices have said that it is not a general jurisdiction to grant bail. That has been said in a number of cases. One of them is a case that is referred to by our learned friends, the Commonwealth, a decision of Justice Dawson in Peters v The Queen (1996) 71 ALJR 309 where his Honour says at 310, towards the top of the page in the left-hand column:

As I recently had occasion to point out in Kostikidis v The Queen, this Court does not enjoy any general jurisdiction to grant bail. The power to grant bail is to be found only in this Court's inherent power to preserve from futility the exercise of its jurisdiction by preserving the subject matter of a prospective appeal or application for special leave - - -

GUMMOW J: Now, it will be put against you that there are other judgments of single Justices which put it more broadly.

MR PAGONE: Not much more broadly, your Honour.

GUMMOW J: Yes.

MR PAGONE: Not much more broadly, your Honour.

GUMMOW J: Well, there are criminal cases in which bail has been granted which you could not say otherwise there would have been a futility in the exercise of the special leave application. A view has been taken that there is a specially strong case for the grant of special leave that is likely to succeed and the bail is then granted in some of these cases.

MR PAGONE: That is true, your Honour. There have certainly been some cases where - - -

GUMMOW J: And Sir Anthony Mason talks about that in Zoeller to some extent.

MR PAGONE: Indeed, your Honour, he does.

GUMMOW J: So I cannot see how we can pursue all these hares down their holes this morning.

MR PAGONE: That is partly true, your Honour.

GUMMOW J: What you have to demonstrate is that there is a question about all this, perhaps, a real question if you like.

MR PAGONE: Well, if that is all I need to demonstrate, your Honour, then - - -

GUMMOW J: Is not that what Justice Brennan is talking about? I may be wrong.

MR PAGONE: No, your Honour. Your Honour is not wrong. Your Honour is right about that.

GLEESON CJ: The way Justice Brennan put it in the case he was dealing with, as I recollect it, was to say that the prospects of success of an application for leave are not insubstantial.

MR PAGONE: Leave being granted - that is right, your Honour. He says "there is a substantial prospect that special leave to appeal will be granted" as well.

GUMMOW J: Yes, but in that particular case he granted a stay, did he not?

MR PAGONE: He did, your Honour.

GUMMOW J: And he did so on the footing that the prospect of a grant is not insubstantial.

MR PAGONE: Yes, your Honour.

GUMMOW J: That is what actually moved him.

MR PAGONE: Indeed, your Honour. Perhaps I am trying to prove too watertight a case.

GUMMOW J: Yes.

MR PAGONE: We would say, your Honour, that although it is true, as your Honour says, there are some cases, there are similarly lots of other cases, particularly in the extradition context, which have said that the jurisdiction is more narrow. It was the view that seemed to have moved her Honour Justice Gaudron.

Perhaps it is sufficient if I simply give your Honours a list of the cases that we were going to rely upon for that proposition. They are Narain v DPP (1987) 71 ALR 248 at 250, a decision of Justice Brennan; Robinson v The Queen (1991) 61 ALJR 519, a decision of Justice Gaudron; Parsons v The Queen (1998) 72 ALJR 1325, a decision of Justice Hayne and I have mentioned the decision of Justice Gaudron in the Cabal matter earlier.

Your Honour, in relation then to what his Honour Justice Kirby did, I think I have probably said enough about that, namely that his Honour was moved to say that the special circumstances could be found not in anything particular about the jurisdiction of the Court but in the circumstances of Mr Cabal. It is that that his Honour thought was sufficient to justify the grant of bail and we would say that is a very substantial departure from what had been said by the courts.

In relation to the other matters, your Honours, we say that, as it happens, we asked for a stay and, as it happens, we got it. His Honour Justice Kirby in what was made available subsequently to his Honour's decision in relation to this question of the Court's exercise of its jurisdiction appears to reject what he described as the narrower view that we were putting forward. If I can just find the passage. Yes, on page 4 of the corrected - - -

GLEESON CJ: May I interrupt you to say, Mr Pagone, that when the parties are preparing their arguments for the proceedings on 6 and 7 September they ought to do so on the basis that the merits of the proposed appeals will be considered and that argument will not be limited to the applications for special leave or leave, as the case may be.

MR PAGONE: If the Court please. In relation to what Justice Brennan had said in Narain, what his Honour Justice Kirby said in the text as corrected by his Honour on page 4, his Honour said:

Mexico next submitted that, in some way, my opinion on the last-mentioned issue -

the exercise of jurisdiction -

had led me away from the purposes for which the exceptional jurisdiction and power is engaged in this Court in a case such as the present, namely to make good the exercise of its powers and to ensure that the exercise is not rendered futile: see Narain . . . Whilst I accept so far as it goes what Brennan J there said, I do not accept the submission of Mexico or that what Brennan J said represents a complete statement of the applicable jurisdiction and powers of this Court.

And, indeed, his Honour then purported to base his decision upon a broader view than that. So that the first point, as it were, is we say there is a live issue, it is a significant issue and, what is more, it is an issue that is enlivened by what his Honour did, because his Honour not only on what his Honour did was clearly not confining himself to what had been said in the cases put to his Honour but, secondly, consciously did so, as that passage that I have just read out shows.

In relation to the second matter that Justice Brennan considered in the Burgundy Royale Case, we did ask for a stay and, as it happened, we got it, at least until the day after, and his Honour was of the view that in any event it is a matter that had to be agitated here.

Then there is a question of whether there was loss to the respondent, to which we say, contrary to what our learned friends say, that it is by far too simplistic to say that what Mr Cabal loses is loss of liberty. That, of course, goes without saying. The question is: has he lost a right? At the moment there is no right. Mr Cabal is in prison pursuant to the lawful processes that have been undertaken and that unless there is the exercise of a discretion he has no right.

What is more, the question so far as the process has gone thus far has been considered by the courts and the courts have thus far considered that what has taken place so far is correct, so that the decisions below so far stand. What is more, it is plain from the Extradition Act that there is a presumption against the bail, so that far from there being a right, there is a positive presumption that he ought not to get it, all things being equal.

GLEESON CJ: I just want to understand your submission as to where the position stands at the moment in that respect. You say subject to the possibility that special leave to appeal against the decision of the Full Court of the Federal Court in relation to the extradition matter is granted, Mr Cabal's current position is that under the statute he ought to be in custody unless what?

MR PAGONE: Unless special circumstances are shown, your Honour, under the statute and special leave must be granted. If the Court grants special leave and an appeal is instituted, the Court will then have the statutory jurisdiction to grant bail and it will have a jurisdiction to grant bail provided that special circumstances be shown within the meaning of the provision under the Act. That matter, as it happens, had been adjudicated during the process of appeals pending in the Federal Court and adjudicated against Mr Cabal.

GLEESON CJ: You mean on several occasions judges of the Federal Court have decided that those special circumstances do not exist.

MR PAGONE: Do not exist under the Act, your Honour, yes. The jurisdiction which this Court will get, if leave is granted and an appeal is instituted.

GLEESON CJ: Yes.

MR PAGONE: Your Honours, that then leads us to the fourth of the matters, the balance of convenience, which was a process of weighing up competing matters and what must be weighed up is what we say is an inherent risk of flight, which we say is present, and which his Honour dealt with - - -

GLEESON CJ: Well, presumably, the balance of convenience is affected by the possibility, which is now a reality, of giving an expedited hearing to the leave application.

MR PAGONE: Yes, your Honour. We say, in that respect, the fact of the matter is that he has received expedition. The matter is set to be heard on 6 and 7 September. That is six weeks away. That is, in the scheme of things, a relatively short time and that is a matter that should weigh in our favour because it means that the Court could then exercise its statutory jurisdiction if leave is granted and all things considered it is relatively short. On the other hand, there is, we would say, the risk of flight that continues to be a real risk.

GUMMOW J: Was there any finding about that, about risk of flight?

MR PAGONE: What his Honour said - - -

GUMMOW J: I think at about line 360, perhaps.

MR PAGONE: Your Honour, does your Honour have the first instance decision there, or the second?

GUMMOW J: I was looking at the second, yes.

MR PAGONE: He said something about it at both his decisions. If your Honour has a second one that I had it is under the heading "Four considerations relevant to the bail discretion".

GUMMOW J: Yes, that is right. It is the third.

MR PAGONE: The third matter. Yes, your Honour. But his Honour said something about it also at the first time round and I do not think it was quite so favourable. He deals with it in part, your Honour, under the heading "Exercise of discretion: application of Mr Cabal". What he says there is:

In the case of Mr Cabal the position is more complicated. Like Gray J, I would conclude that the evidence in these applications indicates that Mr Pasini was a follower; Mr Cabal took the leading role in their relationship and activities; and Mr Pasini followed Mr Cabal, in part, because of the family relationship. Obviously, the admission of each applicant to bail, at the same time and in the same city, would, without more, increase the risks of absconding by each, which the separate admission to bail of Mr Pasini avoids, or at least minimises.

I would not be prepared to admit Mr Cabal to bail upon precisely the same terms and conditions . . . Their circumstances are distinct. I judge Mr Cabal to be much more resourceful. It is he who is visited by advisers from overseas. It is he who, I would infer, would have much wider contacts, experience and opportunities for absconding, if that were his intention, than Mr Pasini. Through his counsel Mr Cabal offered to submit to any conditions that the Court, save for a condition forbidding him from contact with his extended family.

And so on. Then, of course, your Honour has what his Honour said last week. In relation to the third matter that his Honour deals with where he says:

However, such documents relate to a time when Mr Cabal was an undoubted fugitive.

That is in response to a submission that there was quite extensive evidence, it was alleged by us, of flight, over a number of years the use of false names, that is to say names that are not his own, and an ability to do so relatively easily.

What was said in the second affidavit of Mr Caporale, which is before your Honours - the affidavit of Mr Caporale that your Honour referred to - was that there was evidence of an Italian passport which had come to light after incarceration and in respect of which it was said nothing has been said. Our learned friends now wish to say he does not have it, he does not know anything about it. One response to that is that it compounds the problem, that it would seem as though this man is able to have effected requests for passports in countries all over the world without him knowing it, an extraordinary thing to occur.

In any event, what they do is they tender an affidavit by Mr Cabal for the purposes of traversing some of his issues where paragraph 92 of something annexed to Mr Cabal's most recent affidavits he says:

In day to day life in France, however, so as not to draw attention to myself as Carlos Cabal and therefore to my family as the family of Carlos Cabal, the people working for us at the house in France knew me as Mr Pierre. Also, when I was booking a table at a restaurant, I would use that name. It is not illegal to do that in France and I never tried to hide my identity nor that of my family from any French authority. The house in France was rented under our own names.

Then at paragraph 111 of that same document Mr Cabal says:

Given the events of the previous months -

this is in 1996 -

we were scared for our physical safety. I began to feel that the Mexican Government might prefer that I not return to Mexico, and that if I were captured, I would be harmed under cover of my `arrest'. It was then that we decided that our best protection would be to obtain, if possible, a different identity.

This is their material, your Honours. So that what one says about the evidence prior to arrest is it shows propensity, ability and state of mind to flee. With respect, the answer that is given in respect of the Italian passport we say is no answer at all. On the contrary, it compounds the problem if Mr Cabal's most recent affidavit be accepted on its face, namely that here is this unexplained passport in this name, and that in these circumstances it is not good enough to say things have changed, because the problem with things changing is that they change all the time. If they change back again, we have evidence of a man who, when circumstances change that way, had fled.

Your Honours, in so far as questions of finding are concerned, that issue, whether there has been a risk of flight, has been considered by the Federal Court and every time it has been considered, they have said it is too great. So that in so far as the issue has been considered, it is been considered against him.

May I now simply say one or two matters about some statements that appear in our learned friend's submissions. What they say in paragraph 10 - I am sorry, your Honours - - -

GLEESON CJ: Is this the one that begins, "Mexico argues that if granted bail"?

MR PAGONE: No, I am sorry, your Honour. Perhaps I will just skip over that one. I cannot find the note that I have made here and it does not correspond. At paragraph 12 they say:

His Honour was also plainly impressed by the evidence of those four individuals prepared to stand as sureties for Mr Cabal. Mexico had full opportunity to cross-examine all witnesses, except Mr Leue. It chose to cross-examine only two.

That is partly, with respect, perhaps unintentionally, misleading. We did wish to cross-examine Mr Leue. We were told he was not available. Mr Leue was quite critical to a number of the propositions that were being put because he was the man who seemed to be the person controlling the company offering the security.

GUMMOW J: What is the name of that company again?

MR PAGONE: Dosca. What I said at the beginning of the submissions - - -

GUMMOW J: It holds the mortgage, does it, over this residential property?

MR PAGONE: Yes, your Honour, and is a party to the loan agreement. What was said in relation to his absence was that adverse inferences should be drawn. That was said at the very beginning of submissions. I do not know whether your Honours have the transcript of the argument before - - -

GLEESON CJ: Yes.

MR PAGONE: What was also said about that evidence is that the Court could not be satisfied that those individuals who were offered as sureties could discharge those offers of sureties as sureties. That was said first of all at page 52 of the transcript where I said to his Honour:

I do not think from our part that affects matters. I should only say in relation to the general group of people who are put forward as sureties, the fact that we do not seek to cross-examine them is not to say that we regard that what they have said in their affidavits as being sufficient to satisfy the Court that the surety is sufficient. There will be argument about that in due course.

GLEESON CJ: Mr Pagone, where do I find the actual order of Justice Kirby in these Court books?

MR PAGONE: I do not think they are in the Court book, your Honour. At the end of the judgment though I think you should find them. On my copy of the judgment, it begins at page 13 and goes over to page 14. I am told that there was a tab prepared for that in the Court book, tab 26, but I do not think it has been inserted behind the tab.

GUMMOW J: That is right, it has not.

MR PAGONE: Do your Honours have a copy of his Honour's decision?

GLEESON CJ: I have seen it but I just want to - - -

MR PAGONE: Your Honours, we are able to hand up one unmarked copy.

GLEESON CJ: Would you mind doing that? Thank you.

MR PAGONE: When I say "unmarked", there is a notation at the top that says "Final version" but, apart from that, it is unmarked.

GLEESON CJ: Thank you.

MR PAGONE: It is pages 13 to 14 of that decision.

GLEESON CJ: I am terribly sorry, but could you just direct me to the grant of bail. I see the conditions on which it is granted here. Where is the grant?

MR PAGONE: I think it should be on page 14, your Honour.

GLEESON CJ: I will tell you why I am asking the question. I want to know how long it lasts. Where do I find that?

MR GRIFFITH: Condition (i) on page 14, your Honour.

MR PAGONE: Yes, page 14.

GLEESON CJ: Thank you. I have the order now. Do you have the order?

MR PAGONE: I do not, your Honour, no. Counsel have never seen the order.

GLEESON CJ: Since that is what this is all about, it might be a good idea to just - - -

MR PAGONE: We thought it had not been taken out yet, your Honour.

GLEESON CJ: I will hand you down what I am told is the copy of the order. Would you just direct my attention to that part of the order that says when the bail expires.

MR PAGONE: We apprehend that it is only in paragraph (i) which says:

That he report at the Registry . . . on the occasion of the return before the Full Court of the High Court of Australia of his application for special leave to abide the order of the Full Court on that occasion or any other further or other order of the High Court or of a Justice thereof as to his custody.

GLEESON CJ: So the bail expires on 6 September; is that right?

MR PAGONE: That is our understanding, unless the case does not come on for hearing on 6 September.

GLEESON CJ: Thank you.

MR PAGONE: We had understood his Honour's intention to be that bail should extend until the special leave application came back on for hearing.

GLEESON CJ: So when the matter comes on for hearing in Canberra on 6 September, he is going to turn up at the Registry in Melbourne; is that right?

MR PAGONE: That seems to be the effect of the order, your Honour, yes.

GLEESON CJ: And what, is he going to sit at the Registry in Melbourne until the High Court in Canberra decides what should happen to him?

MR PAGONE: That seems to be the position, your Honour, yes.

GLEESON CJ: Assuming you are right about that, the only order for bail that Justice Kirby has made is an order that he be granted bail until whenever it is on 6 September that the High Court commences to deal with his application for special leave?

MR PAGONE: Yes, your Honour.

GLEESON CJ: If that is the only order for bail that Justice Kirby has made, leaving it to the Full Court then to decide his future in relation to the subject of bail or custody, what you describe as a stay of Justice Kirby's order is in practical terms a complete setting aside of his order and would render the application for leave to appeal against his decision nugatory, would it not?

MR PAGONE: Your Honours, that is the point, yes, unless our application for leave happened to come on before 6 September and was decided in our favour, in which case we would be entitled to have the man in custody or, if decided against us, he would be entitled to bail. The effect - - -

GLEESON CJ: I am sorry, but if you got tomorrow an order for leave to appeal against the decision of Justice Kirby, that would not alter the fact that the only decision he has made is to grant bail until the hearing of the application for special leave to appeal against the decision of the Full Court of the Federal Court.

MR PAGONE: That is technically right, your Honour, and it is for that reason that our submissions - - -

GLEESON CJ: When you say it is technically right, is there any sense in which it is wrong?

MR PAGONE: No, your Honour. That explains why our submissions proceed on the assumption that what his Honour Justice Gummow said last Friday, that all that the Court was going to consider today was the summons for extension of the stay, might in the circumstances not be the most appropriate way of dealing with the issue and that what should perhaps occur today is that everything should be considered, both stay and our appeal.

GUMMOW J: Of course, last Friday we did not have the text of the orders.

MR PAGONE: That is exactly right, your Honour. I did not mean that as a criticism.

GUMMOW J: No, I understand that. We were all in the dark really.

MR PAGONE: We were, your Honour, yes. We did not have the orders. It is true that one had a general idea of the way in which the orders were going to be couched because they were to follow the model of Mr Pasini. In any event, we have proceeded on the basis that it seemed sensible that the stay application be extended until today and that that be considered. On reflection, it does produce the problem that your Honour the Chief Justice identifies.

GLEESON CJ: The application for leave to appeal against Justice Kirby's decision will lose its subject matter on 6 September.

MR PAGONE: But the actual grant in terms of coming to an end then, that it so, your Honour, but in terms of the substantive question about whether bail should or should not continue in the inherent jurisdiction, no, it does not come to an end then. Assuming the Full Court considers the special - - -

GLEESON CJ: But whether bail is to continue is a matter that has been left by Justice Kirby to be decided by the Full Court on 6 September. On 6 September, if what you say is correct, the Registry in Melbourne is going to have the benefit of a visit by Mr Cabal. The Full Court is going to be sitting in Canberra to deal with an application by Mr Cabal for special leave to appeal against a decision of the Full Court of the Federal Court and Justice Kirby's order is going to expire.

MR PAGONE: That is correct, your Honour.

GLEESON CJ: I am bound to say I did not understand that when I said that the application for leave to appeal against Justice Kirby's order will be listed for hearing on 6 September. The order ceases to have effect on 6 September.

MR PAGONE: That is technically correct, yes.

GLEESON CJ: Is this a usual form of order for bail, that it is only in the condition of bail that you find out when the bail expires?

MR PAGONE: I would need to get instructions on that. I am told by everybody around me there is no usual order.

GLEESON CJ: The expiry of the bail the subject of this order will evidently result, it seems to be common ground, from an implication to be taken from condition (i).

MR PAGONE: That is right, your Honour.

GLEESON CJ: And it is common ground that the bail granted by Justice Kirby will expire on 6 September.

MR PAGONE: Or further order.

GLEESON CJ: No, the bail granted by Justice Kirby is not going to be the subject of any further order. As I understand the way this order operates - correct me if I am wrong - it contemplates that the Full Court itself will decide on 6 September the further custodial situation of Mr Cabal.

MR PAGONE: It will, your Honour, but it might - - -

GLEESON CJ: Pursuant to what application?

MR PAGONE: Pursuant, as I apprehended it, by variation of his Honour's order.

GUMMOW J: Yes, but in the meantime there might have been a breach of a bail condition, so there would be a further or other order.

MR PAGONE: That is true.

GUMMOW J: Those concluding words may be getting at that.

MR PAGONE: It might.

GLEESON CJ: As you understand it, when Mr Cabal turns up at the Registry at Melbourne at 10 am on 6 September, will he be in custody between 10 am and 10.15 am?

MR PAGONE: It would seem as though he would.

GLEESON CJ: So that the first thing that the Full Court will have to deal with on 6 September is what, an application that Mr Cabal's counsel will then make for a continuation of his bail, otherwise he will not be able to go away and have lunch?

MR PAGONE: I am sure lunch could be provided, your Honour, but yes.

GLEESON CJ: He may not be entirely happy with that.

MR PAGONE: Your Honour, that is the best we can take it on the question of when the bail comes to an end. There is no other part of his Honour's order that I can point to that says that bail will come to an end on such-and-such a day. It is only that.

GUMMOW J: These orders before - maybe it is what one had in mind - would be "until the determination of the proceeding or earlier further order", but "hearing" seems to be - it says "the return". That suggests commencement rather than - - -

MR PAGONE: Yes, "on the occasion of the return".

GUMMOW J: Yes, rather than an event that might be some months later, namely the determination of it.

MR PAGONE: And it specifically says "10.00 am", so it is not any time of the day but 10 o'clock in the morning that day. It is true what your Honour puts to me about the effect of the stay that we seek, but in a sense there is not much one can do about that. The object that we are concerned about is to upset the order of his Honour Justice Kirby that bail be granted. We wish to do that as quickly and as expeditiously as possible. If the Court were able to hear us on that matter now, we would deal with it now. Indeed, our submissions are largely predicated on the basis that we can do so now. If we could do it at some other time, we also will do so some other time. In the meantime we need to stay the order so as to ensure that the subject matter of our appeal is not lost. Furthermore, we say the balance of convenience would favour us, that is to say that the stay should be granted.

GLEESON CJ: What is going through my mind at the moment, Mr Pagone, is this possibility, that one way of resolving the difficulty might be for us early next week to constitute a Court of three and actually deal with the application for leave to appeal against Justice Kirby's decision and, if necessary, the substantive appeal then and there.

MR PAGONE: That would certainly suit us.

GLEESON CJ: I will see what other people have to say about that. Is there anything else you want to say?

MR PAGONE: There were a couple of other matters that I needed to deal with. There are lots of things I would like to say, but if I can confine myself to the absolute bare essentials - - -

GLEESON CJ: Do not be self-indulgent about it.

MR PAGONE: There is some technical difficulty, as we apprehend it, with the form of the security that is offered. What was said by me was that we could see no mechanism by which the Commonwealth - - -

GUMMOW J: The Solicitor-General has submissions about this, I think, does he not?

MR PAGONE: He does, your Honour. I am delighted to leave it to the Solicitor-General.

GLEESON CJ: Thank you, Mr Pagone. We had better hear the Solicitor because he is supporting Mr Pagone, had we not, Dr Griffith?

MR GRIFFITH: Would your Honour hear me about hearing the Solicitor-General?

GLEESON CJ: How long would you expect to be, Mr Solicitor?

MR BENNETT: I would have thought about 15 minutes, your Honour.

MR GRIFFITH: I would just like to make one remark to cut him down to three if your Honours would accept it.

GLEESON CJ: Yes.

MR GRIFFITH: On the two return dates before Justice Kirby on 29 June and on 19 July, the appearance on behalf of the Attorney has been a formal one. Mr Walters, for example, on 19 July said:

The only interest would be in relation to the issue of the Human Rights and Equal Opportunity Commission, and we do not anticipate that being a live issue in these proceedings.

I did take before Justice Kirby the point on 29 June that it was appropriate just to have one contradictor and my submission, which he rejected, was that that contradictor should be the Commonwealth and the Attorney rather than the requesting State. In our submission, your Honours, my learned friend's appearance has been confined on this issue with respect to which leave has been applied to Human Rights and Equal Opportunity Commission issues. He has served a section 78B and of course I accept he is able to make what submissions that may now be relevant on a constitutional issue that he may discern but, in our submission, it is entirely inappropriate for my learned friend, for example, to raise this issue of lease, which was not one which was raised before Justice Kirby in any form or made a subject matter of a submission or reason as to why the security should not be regarded as complete.

GLEESON CJ: You can make those submissions. I think we will probably save time by hearing what the Solicitor has to say now.

MR GRIFFITH: If your Honour pleases.

GLEESON CJ: Yes, Mr Solicitor.

MR BENNETT: Your Honours, the first matter is, it seems to us, contrary to what my learned friend has said, that the bail is indefinite and that there is merely a condition of bail that Mr Cabal report at 10 am on the morning of the hearing.

GLEESON CJ: We had better get that straight because unless and until we get that clear, we are thrashing around in the dark, I should have thought.

MR GRIFFITH: Your Honour, may I clear that up if my learned friend does not mind me being - - -

GLEESON CJ: Well, let us just hear what the Solicitor has to say about it. First of all, where did this form of order come from? Who drafted it?

MR BENNETT: I do not know, your Honour.

MR GRIFFITH: Your Honour, I am able to assist if your Honour wishes.

GLEESON CJ: The Solicitor wants to make a submission about the effect of the form of order. There is, I take it, no doubt about what the form of order is.

MR GRIFFITH: Yes.

GLEESON CJ: Is that right?

MR GRIFFITH: Your Honour, there is no doubt but if I could indicate to your Honour that our unequivocal, unconditional position is that the order of Justice Kirby entirely expires at 10 am on 6 September - - -

GLEESON CJ: Now, you may be right about that.

MR GRIFFITH: Yes.

GLEESON CJ: But we know what the form of order is and so we will hear submissions from counsel as to what it means.

MR GRIFFITH: Yes, if your Honour pleases.

MR BENNETT: Your Honour, my submission is it is very simple. It admits him to bail indefinitely. One of the conditions is that he report at 10 o'clock and clearly the intention of the order is that during the hearing before the Full Court that morning the question of bail will be reagitated in the light of what occurs and various other matters.

GLEESON CJ: Now, sometimes one sees orders for bail, particularly orders for bail that are made in the context of pending proceedings or a pending appeal, an order that bail be granted to somebody pending the hearing of an appeal or pending the determination of appeal. That might make an important difference where there is going to be a reserved judgment, and it was really that that led me to look at the form of order in the first place.

MR BENNETT: One could test it this way, your Honour. If Mr Cabal were to report at 10 o'clock and then leave at five past 10, what could he be charged with? How could he be rearrested unless there were some further order? In our respectful submission the form of order is clearly indefinite bail with a condition and with an assumption and the assumption is that the matter would be reconsidered that morning.

GLEESON CJ: Even if you are right about that, Mr Solicitor, there is this additional problem. Regardless of the precise effect in that regard of this order, the practical consequence of this condition is likely to be that when the Full Court assembles on 6 September the first thing it is going to be dealing with is a question about the future custodial position of Mr Cabal.

Whoever is the moving party in that respect might be another question, and the answer to that question might depend upon whether the submission you have just made is correct, but I am a little concerned about the fact that one way or the other, whoever be the moving party, when we get together on 6 September to deal with the constitutional and other issues raised by the application for special leave to appeal from the decision of the Full Court of the Federal Court, the first thing we are going to be confronted with is the urgent necessity to deal with the further custodial situation of Mr Cabal who will have been from 10 o'clock in the morning sitting down at the Registry in Melbourne.

MR BENNETT: Your Honour, we had intended to come this morning and submit that your Honours should hear the leave application today. That seemed to be foreclosed by the discussion at the beginning of the morning and I did not jump to my feet to suggest to the contrary. But we certainly would support either that course or, if your Honours feel it is more appropriate to do it before a Bench of three, the course your Honour suggested a few moments ago.

GLEESON CJ: But what would we achieve by hearing a leave application unless we went on and heard the appeal at the same time?

MR BENNETT: Your Honours, in my respectful submission, your Honours would adopt the course of listing the leave application and the appeal at the same time and proceeding with the - - -

GLEESON CJ: I would have thought we would have to do that because otherwise we are confronted with the very problem we have just been talking about.

MR BENNETT: Precisely, your Honours, and we would submit it is appropriate to deal with both the leave application and, if necessary, the appeal on the one day as early as possible. We invite your Honours to do it today if your Honours regard that as an appropriate - - -

GLEESON CJ: But even if Justice Gummow and I were to, today, grant leave to appeal from the decision of Justice Kirby, we would still be confronted with the situation that on at least one possible construction of the order, that is to say the construction for which Dr Griffith contends, Justice Kirby's order will cease to have effect on 6 September.

MR BENNETT: There is no doubt that your Honours, in our respectful submission, would need to deal with both the leave application and, if necessary, the appeal and that that should be done today or, as your Honour suggests, at the earliest possible date and we certainly support that course. If your Honours are minded to take that course, I would not need to make any further submissions this morning.

GLEESON CJ: Well, let us hear what Dr Griffith has to say.

MR BENNETT: Assuming there is stay until then, but I would, of course, if your Honours are not proposing to take that course, need to make my 20 minutes worth of submissions. If the Court pleases.

GLEESON CJ: Let us deal first with the meaning of the order, Dr Griffith.

MR GRIFFITH: Yes, your Honour. I should indicate, your Honour, that in respect of Mr Pasini there was an order in similar form and could I hand your Honour the notice of undertaking of bail and recognisance there entered for Mr Pasini with respect to - it is in the Court book, your Honours.

GLEESON CJ: Thank you.

MR GRIFFITH: It there indicates, your Honour, in its chapeaux that the bail is to terminate at the time of commencement of the hearing.

GLEESON CJ: I am sorry. Could you repeat what you just said?

MR GRIFFITH: It there indicates, your Honour, in the chapeaux before the conditions are listed that the bail is to terminate.

GLEESON CJ: Where do we see that?

MR GRIFFITH: Before the conditions are recited.

GLEESON CJ: Yes, what line?

MR GRIFFITH: Immediately before the conditions are recited it recites that that is the period of bail. Your Honours have my copy. It is exhibit to tab 11 in volume 1.

GLEESON CJ: That recites that he "was granted bail . . . until the occasion of the return".

MR GRIFFITH: Yes, your Honour.

GLEESON CJ: I see the recital. Where do I see that which is recited?

MR GRIFFITH: Your Honour, that would have been the order taken out for Mr Pasini after 29 June.

GLEESON CJ: That is right. So instead of concerning ourselves about the accuracy of a recital, could we look at that order?

GUMMOW J: It is probably in the same form.

MR GRIFFITH: It is the same form, your Honour. I can hand it to your Honours.

GLEESON CJ: Right. That then it begs the question.

MR GRIFFITH: Could I indicate to your Honour that Mr Pasini previously had bail on these similar terms from Justice Gray for the hearing of the Full Court appeal and, your Honour, the course that was adopted, I am instructed, is that he just appeared and surrendered himself into custody.

GLEESON CJ: It may very well be the case that if everybody behaves sensibly no practical problem will arise, but people do not always necessarily behave in that fashion so we had better be sure what the position is and a question I would ask you is, at five minutes past 10 on the morning of 6 September, what will be Mr Cabal's position? Will he be in custody or will he be on bail?

MR GRIFFITH: Your Honour, we would accept the position that he is in custody until the Court makes an order and my position before the Full Court would be I would not seek any continuing order for the bail until the end of the day's hearing. If there is a practical uncertainty about that we would be willing either to indicate to your Honour that Mr Cabal will so surrender actually into custody at 10 am.

GLEESON CJ: Now, into whose custody? Not the Registrar of the Court?

MR GRIFFITH: No, it would be the continuing custody that exists, your Honour, to be kept in the holding cells in the court.

GLEESON CJ: It certainly follows from that, I would have thought, that at some stage on 6 September there is going to be an argument in Canberra before the Full Court about what is to be the continuing position with respect to the custody of Mr Cabal and, I gather from what you have just said, also Mr Pasini.

MR GRIFFITH: Your Honour, only for a minute. At the end of the day we would see how we are going and we would say, "Would the Court extend the bail overnight or not?". That is all we would say, your Honour.

GLEESON CJ: Overnight?

MR GRIFFITH: Yes.

GLEESON CJ: All right. Then the next day the argument will happen and we will have to hear what people want to say.

MR GRIFFITH: Your Honour, there is very little argument we can make. The Court may, for example, hear argument and refuse special leave after hearing full argument.

GLEESON CJ: So, on your construction of these orders, Mr Cabal and Mr Pasini will go back into custody at 10 o'clock on the morning of 6 September.

MR GRIFFITH: And we have lost all benefit of Justice Kirby's order as it has then expired. That is our construction.

GLEESON CJ: And it will then be up to the Full Court on either 6 or 7 September to make a decision about bail for Mr Pasini and bail for Mr Cabal pending the decision of the Full Court on their applications for special leave to appeal against the decisions of the Federal Court?

MR GRIFFITH: If it is reserved, your Honour. It might be that a decision is given without reasons, for example.

GLEESON CJ: Quite. But if there is a reserved - - -

MR GRIFFITH: We would then apply for the Court to make a positive original order for bail adopting the same conditions which Justice Kirby found sufficient until 6 September. We would not argue that there was a continuing bail.

GLEESON CJ: Well, if that is right, there would be no point on listing for 6 and 7 September Mexico's application for leave to appeal against Justice Kirby's decision.

MR GRIFFITH: Your Honour has recited the point we sought to make in paragraph 10 of our submissions but we were not apprised that the Court did not have advantage of the terms of the transcript which contained the order that made that clear. That is our point today, your Honour, that there is no content in this application for leave because it would be to allow the appeal by default and without consideration for the stay to be granted.

GLEESON CJ: Now, why should we not take the course of listing for hearing early next week, assuming it can be arranged - and I am not certain it can be arranged but I think it may be able to be arranged - a hearing of the application for leave to appeal against Justice Kirby's order on the basis that the parties will be expected to argue the merits of any appeal at the same time.

MR GRIFFITH: Your Honour, we would say, firstly, that would be a waste of the resources of this Court to have a special sitting of a Full Court to consider merely the issue of whether, for a period of, if we say from today, five weeks - - -

GLEESON CJ: Well, you might have to leave it up to us to decide that.

MR GRIFFITH: That is my first submission.

GLEESON CJ: Yes.

MR GRIFFITH: That is my submission about it. My second submission, your Honour, it is necessary to go to the reasons of Justice Kirby on 29 June and 19 July to say why he found there were new circumstances. It was not just the effluxion of time. It was not just the period of confinement. He lists in his decision some five new circumstances, including the evidence of a psychologist saying that, as at the time of hearing before Justice Kirby on 29 June, Mr Cabal's psychological state deteriorated to the point of Mr Pasini at the time that he was granted bail, firstly, by Justice Gray and, secondly, by Justice Kirby on that date.

He lists these matters as new considerations and our submission is that for the Court to consider this issue it is necessary to read the two decisions of Justice Kirby on 29 June and 19 July, which I understand your Honours have only just, as it were, been given a copy of the second decision, to see how his Honour after full argument over two days, after consideration of the evidence which is in the two volumes your Honours have, after giving my learned friends opportunity to cross-examine witnesses, including by video link, his Honour made positive and detailed findings dealing with the issues of jurisdiction, having regard to the authority of this Court as to the nature of the inherent jurisdiction, having regard to all matters of discretion.

His Honour sat for five hours on 28 June considering these matters. He gave it a full day's attention on the second application on 19 July and has given full and complete and, we say, on their face, unassailable decisions which are incapable of being regarded as seriously in doubt for the point of view of the merits of an appeal, based either on error of law in his approach or the miscarrying of discretion capable of being reviewed by the Full Court on appeal.

GUMMOW J: Yes. Why do you say your opponent should be shut out of the opportunity to test that on an appeal?

MR GRIFFITH: Your Honour, because what we say is that the - - -

GUMMOW J: Because the practical effect of your submission is that they would be shut out and that the order would be left to expire.

MR GRIFFITH: No, your Honour. Your Honour, if there is an underlying constitutional issue, then they can run that as a constitutional case to determine the point of the nature of the inherent jurisdiction. We dispute that that is so, but what we say, your Honour, is that the issue of the exceptional jurisdiction of this Court to order a stay is one which should be enlivened by a full consideration of a primary judge and not something that should be made the subject matter of a separate matter of appeal in itself. His Honour considered the risk of flight, your Honour, and found it very low for the reasons stated in his judgment. We say it is not appropriate for this Court to constitute a Full Court to review that, given the situation that there has been a thorough examination of the situation and Justice Kirby has - - -

GUMMOW J: That is an elaborate way of saying that the appeal application is futile.

MR GRIFFITH: Your Honour, we have just got to the point where we see the application for - - -

GLEESON CJ: Dr Griffith, let me be explicit about what is concerning me and it is what is going to happen in Canberra, and Melbourne for that matter, on 6 and 7 September.

MR GRIFFITH: Yes.

GLEESON CJ: Let it be assumed - and I have no view one way or the other about this - that after argument on 6 and 7 September in Canberra it appears that there is a substantial constitutional question to be argued relating to the extradition aspect, what I might call the merits of this case, and the Court then reserves its decision. I would have thought that if this order has the meaning that you say it has, that will produce the result that there will be a substantial and potentially lengthy argument before the Full Court on that occasion about the custodial future of Mr Cabal pending the resolution of the constitutional issue.

MR GRIFFITH: We would submit not, your Honour. We would regard Justice Kirby's order as spent.

GLEESON CJ: I understand that.

MR GRIFFITH: If we raise the issue, then your Honours say at the point on the second day when that is reached where it looks like there will be a reserved judgment on the merit and that the special leave decision will not be made in the contemplation that either when judgment is given special leave is refused on the merit or special leave granted and the appeal either allowed or disallowed, we would then, your Honour, seek bail and we would be quite content - - -

GLEESON CJ: Of course you would seek bail.

MR GRIFFITH: We would be quite content, your Honour, for that to be referred to a single Justice for consideration on the basis that our client had no bail entitlement until the Justice considered it.

GLEESON CJ: If it was then referred to a single Justice for consideration, your opponents would then seek to persuade the single Justice to depart from the decision of Justice Kirby and you would, no doubt, seek to persuade the single Justice, at least as a matter of comity, to follow the decision of Justice Kirby and there would never be any determination of what your opponent says are the questions of appeal thrown up by the decision of Justice Kirby.

MR GRIFFITH: Your Honour, can I deal with the underlying issue of appeal. When I appeared on the application for special leave, there was, in fact, a division in the course of representation and I was unaware of the terms of Justice Gaudron's adjournment of the existing application for bail. Indeed, I was unaware that there was an application for bail. That, of course, is expressed by reference to adjourn until after the hearing of the special leave application on 22 June.

Your Honours, our submission is that if on the hearing of 22 June an application had been made based on the reason that the issue of grant of special leave was in the circumstances material, as compared to a reference in, which to our understanding was made in that form because it was necessary for us to amend our second ground of appeal to embrace the constitutional argument put on the day. Whether that is the complete explanation or not we, of course, may merely surmise but we submit, your Honour, that if there had been a reasoned application based on the issue that that does undoubtedly enliven the Extradition Act jurisdiction, we would have had at least a reasonable prospect of the three Justices on that date considering that application and quite possibly granting it in the context the Court has full control because on 6 September, whether it be referred in or special leave granted, for example, on the first ground, that can be revoked at any time.

GLEESON CJ: It is a very invidious prospect, Dr Griffith, that when the constitutional case comes before the Full Court on 6 and 7 September we should find ourselves dealing with a contentious issue as to the future custodial situation of Mr Cabal.

MR GRIFFITH: Your Honour, could I indicate that my application would be limited to applying for a single Justice to determine that having regard to the course of the proceedings, whether it looks like there is going to be a reservation of the issues for judgment or not.

GLEESON CJ: But a decision of a single Justice on this point would be substantially pre-empted by the decision of Justice Kirby, would it not? Not technically, not formally, but for practical purposes.

MR GRIFFITH: We would say rightly so, your Honour. It is an exhaustive consideration by a Justice over two full days with full reasons. Why should that not be so? Why should not a judge, whether it is Justice Kirby or another Justice, have the advantage - - -

GUMMOW J: Yes, but the point is your opponent will not be so minded, you see, and then it will be back in the Full Court.

MR GRIFFITH: Your Honour, our opponent's position is predicated upon this technical difference, that we had what we regarded as a satisfactory special leave by reference in rather than adopting a form of order which would have enlivened the extradition jurisdiction. That issue is one which cuts away half the points that are made against us. If it is under the Act, your Honour, then the issue is clear. One must show truly exceptional circumstances with a reverse onus, but Justice Kirby accepted exactly the same tests for the purpose of his reference by reference to the implied jurisdiction.

GLEESON CJ: He may have been perfectly correct, but if your construction of this order is right, all Justice Kirby was dealing with, and I presume all he was intending to deal with, was the custodial position of your client between now and early September.

MR GRIFFITH: Of course, your Honour, that is accepted.

GLEESON CJ: Now, somebody is going to have to deal with the custodial position of your client between early September and the time the Court decides the constitutional question, assuming it reserves its decision on that question.

MR GRIFFITH: If that situation arises, yes, your Honour, but that can be done by reference to the circumstances at the time. What Justice Kirby regarded as particularly relevant was the reference in to the Full Court regarding that, one would suppose, a rough or ready way in indication that there is a prospect of the special leave application. We say we would be in a stronger position if at the end of the Full Court hearing there is a sufficient constitutional argument which enables the Court not to give immediately judgment revoking special leave or dismissing the appeal but reserving it. That would be a matter for bail to be considered by reference to that strengthened position.

GLEESON CJ: Assuming we were of the view that the best course for us to take is to list Mr Pagone's application for leave to appeal against the decision of Justice Kirby for hearing one day next week, because that application is not before us today - it is a listing question - assuming we were take the view that that was the best course to pursue, what would your submissions be on the question of extending Justice Gummow's stay pending the hearing and determination of the application for leave to appeal against Justice Kirby's decision.

MR GRIFFITH: Your Honour, what we say is that is to deny the applicant of what to him is an extraordinarily significant right which he has under the terms of Justice Kirby's order, to be released into the bosom of his family for five weeks in the circumstances that Justice Kirby has found truly exceptional circumstances by reference to the terms of his incarceration, his psychological state, the support by reference to - - -

GLEESON CJ: No, it is to deny him that right until a Full Court of this Court gets an opportunity to look at and hear argument upon the merits of Justice Kirby's decision.

MR GRIFFITH: With respect, your Honour, we are then bridging the six-week period. I know it can be put, "It is only a six-week period". Justice Kirby's - - -

GLEESON CJ: It is not six weeks at all. I am talking about next week.

MR GRIFFITH: Your Honour, the period embraced by Justice Kirby is six weeks. Now, Justice Kirby made his decision on the apprehension, your Honours, as he stated during argument, the hearing would come on 6 September. He regarded the arguments for bail for that period as so compelling as to be truly exceptional for the reasons he stated. Your Honour, already one has almost a week expired of that period. If the effect of an order for hearing next week is another week, the Court may well reserve.

My learned friend, the Solicitor-General, has put in a section 78B issue and elevated it to a constitutional issue. As we understand it, , constitutional issues require normally a Court of at least five Justices to sit rather than merely three and it seems this technical point, we say, your Honour, which - for example, your Honours now being apprised of it, if we deal with in the face of the Court what is an issue, half the case would be removed, as this Court today elevated our first ground of appeal to one where special leave is granted rather than merely reserving the two issues in. That is the underlying issue which is really the supporting structure for this appeal.

Were special leave granted, the only issue to be agitated would be the reagitation of the exercise by Justice Kirby of a plain statutory jurisdiction - - -

GLEESON CJ: You mean leave?

MR GRIFFITH: Yes, your Honour.

GLEESON CJ: You said "special leave". Did you mean leave?

MR GRIFFITH: Special leave.

GLEESON CJ: I just want to know which proceeding you are talking about.

MR GRIFFITH: Your Honour, in the substantive proceedings to be listed on 6 September - - -

GLEESON CJ: That is your client's application for special leave to appeal against a decision of the Full Court of the Federal Court?

MR GRIFFITH: Yes. If for the reasons, your Honour, that the three Justices referring the matter in has resulted in this purely technical difference as to jurisdiction, so my learned friends agitate whether or not the implied jurisdiction of the Court is so circumscribed that bail in these circumstances cannot be granted, that argument is predicated upon the full acceptance that there is a statutory right under section 19(6) to grant bail with reverse onus in exceptional circumstances.

Justice Kirby's examination of the facts applies exactly that same test by reference to his exercise of the implied jurisdiction of the Court. We submit the practical way to resolve these difficulties is for your Honours today, sitting as a Full Court, to refer our first ground of appeal into the High Court which means, your Honour, that there is no issue that there is a statutory jurisdiction. We say when one looks at Justice Kirby's judgment, it is quite plain that it is something which is not amenable to being overturned by a House v The King approach on any view.

It is a very technical argument based on the fact that the form of the Court's order was, for reasons known to the Court, a reference in. That was satisfactory for the purpose of maintaining the position in the Court for running the issue but, as it turns out, it gives rise to this basis of an argument that you are not within the Extradition Act. That was a point I put to Justice Kirby in argument last Thursday. That is the essence of this issue and, in our submission, it is a storm in a teacup but it is one that denies our client something to which he desperately wishes, namely, to be enveloped within the bosom of his family for a period of merely days pending a position which he accepts quite unconditionally, namely, on 6 September he is to be surrendered into custody with no continuing entitlement at all, with respect to Justice Kirby.

I should indicate on page 9 of the decision of 19 July, which, in our submission, your Honours should read in its entirety whilst considering my submissions, he held that "the risk will be tolerably small", that was having examined in full - - -

GUMMOW J: What does "tolerably" mean?

MR GRIFFITH: Your Honour, it could be tolerated because his Honour's view, for the reasons he stated - he dealt with all my learned friends' arguments and, at the end of the day, he assessed that having regard to the circumstances which he found on examination of the entire matters were new, were severe and his Honour regarded there is sufficient balance with sureties of impeccable character and a security which his Honour accepted was the highest bail ever offered, as far as he understood it, in any Australian jurisdiction. He accepted the evidence of the person who offered that bail and we submit that it is not possible to assess this tactical position without surveying the decisions of Justice Kirby.

Your Honours, I could indicate on this issue of the nature of the termination of the bail that we would be content to approach by consent Justice Kirby to obtain an order that it be expressed as surrendering into custody on 6 September.

GLEESON CJ: Really, that is a matter for the parties, but if I may say so, it is not a bad idea anyway.

MR GRIFFITH: Your Honour, it removes the ambiguity.

GLEESON CJ: Yes.

MR GRIFFITH: That is exactly what happened to Mr Pasini in the Full Court and that is what we intended, your Honour.

GLEESON CJ: I think it is very important that there be no ambiguity about the form of an order like this.

MR GRIFFITH: To us there is none, your Honour. It is surrender into custody and that is the end of our entitlement from Justice Kirby's order. As we see it, Justice Kirby said the significant thing was the reference in and we say quite appropriately regarded that in substance, not in form, is equivalent to getting through the special leave - - -

GUMMOW J: It is not.

MR GRIFFITH: I know, your Honour, but - - -

GUMMOW J: Not in substance at all - at all.

MR GRIFFITH: Your Honour, it keeps you alive when otherwise a refusal would remove it. So one cannot predict, but we say the position for bail as at 6, 7 September will be predicated entirely upon the circumstances as to whether the merits of the appeal seem to have legs or not. We must accept that, your Honour, and we would not have a basis for any bail application if the Court was minded to refuse special leave without reasons or to give a judgment on the merits with the result without giving reasons or adjourning - - -

GLEESON CJ: If the parties are contemplating by consent approaching Justice Kirby for some form of amendment of this order, could I indicate that what would be a matter of concern is, first, to clarify the custodial position of your client as from 10 o'clock on the morning of 6 September and, secondly, to avoid the consequence that the first thing the Full Court is going to be confronted with when the matter comes on for hearing on 6 September is an argument about bail.

MR GRIFFITH: I am sure, your Honour, I will not raise that issue first thing. It will be something to be considered perhaps at the end of the first day or at the end of the hearing on the second day. We must abide then the direction of the Court. There is from Justice Kirby's exhaustive consideration of these issues, your Honour, information to inform the Full Court by reference to an exhaustive consideration by one of their members of the issues which go into the balancing of whether they are truly exceptional circumstances.

GLEESON CJ: But I gather from what you say that it is your understanding of the effect of this order that the bail granted by Justice Kirby will cease at 10 o'clock on 6 September.

MR GRIFFITH: Yes. We accept that unconditionally.

GLEESON CJ: And that your client will not thereafter be entitled to bail unless the Full Court or a single Justice of the Court makes a fresh grant of bail.

MR GRIFFITH: That is our position, your Honour, that Justice Kirby order has expired, hence our submissions and our contentions which, of course, did not carry meaning to the Court because they are unaware of this limitation, that the effect of the grant of a stay is to mean the appeal will never be heard. But we do submit, your Honour, that a relevant matter to consider whether there should be the expense and the diversion into appeal next week is a matter which is inappropriate to be imposed on my client as a matter of further costs and proceeding in the context that the real underlying issue is whether he has a good point on the Extradition Act. If he does not, that is the end of it.

GLEESON CJ: Let it be supposed that he has a point on that that will require substantial argument and a reserve decision of the Court. What in practice do you envisage is going to happen about the question of his bail and his future custodial position on 6 and 7 September?

MR GRIFFITH: Your Honour, in Pelachowski there were similar sorts of orders, one made before special leave - it is referred to in Justice Kirby's judgment - one made, your Honour, I think on the hearing of the special leave, one made on the hearing of the matter itself. So the Full Court has shown a capacity to deal with that and here, informed by Justice Kirby's exhaustive consideration of the matter, assessment of the weight of sureties, securities, character evidence, psychological evidence, circumstances of confinement, that there has been a finding of exceptional circumstances, we would suppose it could well be that the Full Court would be in a position to say, "We feel during the uncertain period of consideration that bail should be granted on similar terms to those which Justice Kirby found appropriate to 6 September". That would be a convenient way of dealing with it.

We would be completely in the hands of the Court, your Honour, but we certainly would not wish to have, in effect, a two-day contested hearing given that a Justice of this Court had already used two valuable days of that Justice's working year to give the parties a complete and full opportunity to agitate those issues. But there is the basic issue of my client's interests in having gone through that process for Justice Kirby on two occasions, having that consideration, that he needs as a matter of desperation the advantage of that order intended to operate over a five-week period.

What we submit is by this successive erosion, just another few days, we will be in the position quite possibly that after a hearing, say, next Wednesday, there could be a reserve judgment on those issues, including the constitutional point, the Court might feel that that point should be referred to five Justices, that my client will by just accretion of movement and effluxion of time lose this benefit. What is plain from the decision of Justice Kirby, your Honour, that he accepted in the exceptional circumstances that it was not an answer to say, "Only five more weeks. You have been there 30 months", because of this issue of risk of flight.

What we have is a rational assessment to say, "Looking at all the risks, looking at the terms, looking at those who not only speak of your character but come as sureties, looking at the sum of security - that is not surety, that is security - in $2 million, I find the risk - - -

GUMMOW J: What is this security of $2 million? How is it provided?

MR GRIFFITH: Your Honour, it is provided by lodging three documents. The first is certificates of title; the second is the registered mortgage and the third is a registrable instrument of transferring "blank" of that mortgage to the Commonwealth of Australia. The evidence of Mr Frenkel, which Justice Kirby accepted after giving my friends - - -

GUMMOW J: That is just a transfer of the mortgage, so that puts the Commonwealth in the position of the assignor, does it? It is assignment of the debt owed to this foreign company.

MR GRIFFITH: Yes, and under the mortgage the debt is at call.

GUMMOW J: Subject to whatever equities there are between the mortgagor and mortgagee.

MR GRIFFITH: There was evidence there were no equities. This issue of the lease raised by my learned friend - - -

GUMMOW J: And the mortgagor and mortgagee are both strangers, are they not?

MR GRIFFITH: Your Honour, this issue of the lease was not raised before Justice Kirby.

GUMMOW J: It might not be. I am just wondering about - you keep saying 2 million as if it is some cash bond, but it is not a cash bond. It is not the case of the Commonwealth turning up to a bank and saying, "Here is the bond. Give me $2 million".

MR GRIFFITH: Your Honour, Mr Cabal does not have cash to lodge as a bond. He has a friend, your Honour, who is obviously wealthy and offshore.

GUMMOW J: Not that wealthy though.

MR GRIFFITH: Apparently he is, your Honour. Justice Kirby thought he was.

GUMMOW J: What I am saying is he is offering this mortgage arrangement, that is all.

MR GRIFFITH: Your Honour, he is offering a house that is worth two point four - - -

GUMMOW J: Yes, I realise that, but he is not putting up cash.

MR GRIFFITH: No, but he has already put the cash into the house, your Honour. He is prepared to lose it.

GUMMOW J: All right.

MR GRIFFITH: But Justice Kirby accepted the evidence of Mr Frenkel as an experienced solicitor that these three documents constituted complete - - -

GUMMOW J: It is a question of law; not an opinion of any solicitor.

MR GRIFFITH: No, but Justice Kirby found that. He found it was security sufficient to be in excess of $2 million. That is the finding he has made and, with respect, your Honour - - -

GUMMOW J: Is there a valuation of this land?

MR GRIFFITH: $2.4 million.

GUMMOW J: Is there any valuation of this land?

MR GRIFFITH: Yes, your Honour. Yes, it was all proven, your Honour. It is $2.4 million and there is a mortgage of $2.4 million which is immediately called because of the expiration of the 12-month term of the mortgage. The explanation for this sort of transaction was that it was done on advice of Messrs Mallesons to comply with foreign exchange provisions. That was done on legal advice. There is nothing obscure about it. It is a form adopted on legal advice to enable a friend of the Cabals to provide over the head of the family during this period of uncertainty and it was proven, your Honour, that some $2.4 million was transferred in as cash for the purpose of settling that purchase and the mortgage, your Honour - - -

GUMMOW J: By loan.

MR GRIFFITH: By a mortgage loan, yes, your Honour. So it is the mortgage loan which is the asset which is offered. In effect there was no equity with the registered proprietor. It was entirely funded by the loan, your Honour, to comply with necessary forms, on the term of a loan which was for 12 months which was to be on call after 12 months. The 12 months expired on 14 March this year.

So Justice Kirby accepted that as the equivalent of $2.4 million security. That was a matter exhaustively considered on evidence, your Honour. The underlying circumstances were proved by affidavit as to why the transaction was in that form and his Honour accepted evidence that this money was in no way Mr Cabal's money or tainted by any allegation as to its source. He accepted that the person making it, Mr Perry, was a person of great means and made available $2.4 million to help a family friend, also someone with whom he had business dealings, including complicated business dealings.

GUMMOW J: Yes.

MR GRIFFITH: So we say the Full Court must be in the position of accepting that there was a requirement for in excess of 2 million to be lodged - - -

GUMMOW J: Anyhow, the question is when we have this debate in the Full Court and if we have it. Your submission is we never have it.

MR GRIFFITH: My submission is the Court should not have it, your Honour. It is not a matter of substance. The underlying issue is this technical one that I did not obtain from the Court at the time of the special leave application for a particular reason what would have been a form of order that would have avoided this whole issue. That is not a matter of great substance for this Court. We would submit, your Honours, the issue of whether or not in particular circumstances an order for bail in the inherent jurisdiction, when there has been a reference in of a special leave application, is not a matter of great importance that this Court should, we say, sit a Court of at least five Justices, it being a constitutional issue, now to determine.

Whilst this is happening, your Honour, in effect our client, who should be entitled to a presumption of innocence, who has not been under the terms of the Extradition Act been able to test the merits of the - - -

GUMMOW J: Innocence of what?

MR GRIFFITH: That he has committed no offence, your Honour. Nothing is proven. He is not able under the Extradition Act to prove that these offences have not been committed by him. He has made substantial progress, as the evidence showed, in having many of them dismissed. He proved before Justice Kirby that on lodging $US500,000 equivalent bail, he is entitled to return to Mexico and not be liable to arrest. That is his perception of his position and he has produced the relevant bail documents.

The evidence before Justice Kirby is that there has been many changes in circumstances to indicate there is no real risk of flight, but the underlying issue is Justice Kirby regarded it as exceptional after an exhaustive consideration of the facts - - -

GUMMOW J: You have said that several times.

MR GRIFFITH: No, but he should be given five weeks. What I say, your Honour, that to have a process of this Court sitting a special court with a stay on the order is to negate that fully reasoned order of Justice Kirby whilst not having any regard to its merits. So, your Honours, if this Court is minded to provide a special court next week - and our submission is for those reasons there should be no continuation of the stay. It is the stay that - we do not mind arguing at any time the issue of the appeal but it is the stay which is breaking our client's spirit. One could say, "Well, isn't this inappropriate resources over a few days?". That is the underlying issue that is driving my client to pursue this issue of bail, which he accepts is limited to no more than 10 am on 6 September.

GLEESON CJ: Yes, thank you, Dr Griffith. Mr Pagone, in his submissions Dr Griffith put to us that there is some constitutional point you wish to raise that affects the way the Court ought to be constituted.

MR PAGONE: Your Honour, I am not aware of a constitutional point being raised.

GUMMOW J: That might be the Solicitor's - - -

MR PAGONE: It may be, your Honour. I am not raising a constitutional point.

GLEESON CJ: The Solicitor may be able to enlighten us about that.

MR BENNETT: The point is that the nature of the inherent jurisdiction which arises from the constitutional power of the Court to grant special leave, which we say is limited to an inherent power under section 51(xxxix) of the Constitution to preserve the subject matter of the appeal. It is a short argument in support of - - -

GLEESON CJ: I am sorry, I do not quite understand that. You are not suggesting, are you, that the outcome of any possible appeal against Justice Kirby's decision might turn upon the fact that the Court that dealt with Mr Cabal's application for special leave to appeal against the decision of the Full Court of the Federal Court decided to refer that application into a Full Court rather than to grant special leave?

MR BENNETT: No.

GLEESON CJ: It has nothing to do with that?

MR BENNETT: Nothing to do with that, your Honour, no. The principal argument is not constitutional. On one view of it and for more abundant caution, it might be constitutional and we have served a 78B notice. That arises simply because the inherent jurisdiction arises under section 51(xxxix) of the Constitution and its scope is in issue.

GLEESON CJ: Could you state the point in a summary form?

MR BENNETT: The constitutional point?

GLEESON CJ: Yes.

MR BENNETT: Whether the inherent power to grant a stay or bail pending a hearing of a special leave application, which arises where it is necessary to preserve the subject matter of the appeal, is limited to such circumstances.

GLEESON CJ: Is this a point that was taken before Justice Kirby?

MR BENNETT: No, your Honour. Well, it arises from the reasons. The argument before Justice Kirby which was put by the United Mexican States was that the inherent power is limited to circumstances - - -

GLEESON CJ: Your client was represented before Justice Kirby?

MR BENNETT: Yes, your Honour.

GLEESON CJ: Did your client put this before Justice Kirby?

MR BENNETT: No, your Honour.

GLEESON CJ: Why should your client be entitled to put the point on an appeal from Justice Kirby?

MR BENNETT: Your Honour, the point was raised by the United Mexican States and argued. It was not described as a constitutional point. The section 78B notice, as I have indicated, is for more abundant caution because the nature of the inherent power is a power which arises under section 51(xxxix). That is the only connection with the Constitution. The point which was argued fully by the United Mexican States - - -

GUMMOW J: Is it 51(xxxix)? That is about the power of the Commonwealth to make laws. If this comes from anywhere, it comes out of Chapter III.

MR BENNETT: I am sorry, your Honour, I have put that badly. The High Court's appellate jurisdiction arises under sections 71 and 73 of the Constitution. There is an implication in the Constitution that one has whatever powers are necessarily incidental to judicial powers as well as to legislative powers by analogy with section 51(xxxix). It is because the inherent power arises in that way that an argument over the scope of the inherent power - - -

GUMMOW J: Anyhow, you want to say at the end of the day, do you not, that Justice Kirby did not have jurisdiction? Is that not what it would come to?

MR BENNETT: No, your Honour. He only had jurisdiction - - -

GUMMOW J: Because he went beyond what you say are the limits of this implication.

MR BENNETT: In that sense, yes, your Honour. His power was limited to the situation where it would render the appeal futile or substantially futile.

GUMMOW J: I do not see at the moment why you should be allowed to turn up and take some point that the litigants do not take.

GLEESON CJ: And that your client did not take at first instance.

MR BENNETT: Well, I am sorry, that point was taken. The point that was taken - - -

GUMMOW J: I seem just to have elicited it from you.

GLEESON CJ: Exactly.

MR BENNETT: No, I am sorry, your Honour. The point taken by the United Mexican States at the hearing was that the inherent power was limited in that way. That was argued, as I understand it, by reference to the authorities and that is their main point on this appeal. We simply wish to support that but, because it might be suggested that as the power arises by implication under the Constitution it is a constitutional issue, we have served a notice under section 78B. But that is a fairly limited aspect of the point and does not substantially affect the argument. The argument we would wish to put would be substantially similar to that put by the United Mexican States at the hearing and Crampton's Case shows - - -

GLEESON CJ: Yes. We will adjourn for a short time to consider the course we will take in this matter.

MR GRIFFITH: Your Honour, may I make a short submission?

GLEESON CJ: Yes.

MR GRIFFITH: Your Honour, we say the point identified for the leave application is a trifling point of form. Having regard to the interests of my client, I would submit that it is appropriate to sidestep all this as an issue. If your Honours sitting as a Full Court would entertain a renewed application for special leave, that special leave be granted on ground 1 in the substantive matter, so that we sidestep entirely this issue of whether exactly the same test applied by Justice Kirby by reference to the implied jurisdiction, as is required by the Extradition Act, were it to attach, was that which he applied throughout his consideration of the matter.

That is the real issue and that is the issue determined after full consideration in my client's favour to entitle him to this short period after 30 months of strict confinement, where evidence is that he has been broken psychologically, to be with his family for five weeks and no more after the hearing of his special leave application. In our submission, your Honour, it is appropriate for this Court to act in a flexible way and enable the substance of the issue to be determined without affecting at all constitutional issues that parties may wish to run in an abstract way.

That is not my client's concern. His concern is to have liberty for a few days. Our submission to your Honours is that the issue can be covered by this Court to grant special leave on ground 1 on the basis, of course, it can be revoked in a summary way on 6 or 7 September.

GLEESON CJ: We will adjourn for a short time to consider the course we will take in this matter.

AT 12.36 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.53 PM:

GLEESON CJ: The order that we will make is this. On the summons filed on 19 July 2001 in matter No M74 of 2001:

1. Order that the hearing of the application for leave to appeal against the order of Kirby J made on 19 July 2001 in the matter of Carlos Cabal Peniche v United Mexican States and Others be expedited and be listed for hearing before a Bench of three Justices of the Court on Tuesday, 31 July 2001 in Sydney at 10.15 am.

2. Order that the stay of the orders of Kirby J that was granted by Gummow J on 20 July 2001 be extended until 4.30 pm on Tuesday, 31 July 2001.

3. Order that costs of the summons be costs in the application for leave to appeal.

4. Certify for counsel.

I will indicate that it is expected that the application for leave to appeal in the matter of Pasini will be listed also at 10.15 am on Tuesday, 31 July 2001 to be heard together with the application in this matter. I will also indicate to the parties that they should be ready to argue the substance of the appeal as well as the application for leave to appeal.

I would not expect that the hearing of the matter on that basis would take more than a day and the parties are to have the opportunity to agree between themselves upon a division of the available time for their submissions. If they are unable to make such an agreement, we will make one for them.

MR GRIFFITH: Would your Honours grant leave for Mr Cabal to renew an application for special leave to be granted rather than to lie as being referred in for 6 September?

GLEESON CJ: I am sorry, I have not followed.

MR GRIFFITH: Leave in the substantive matter, your Honour, to renew an application for special leave to be granted rather than to be left as referred in for 6 September.

GLEESON CJ: To do that on 31 July?

MR GRIFFITH: Yes, your Honour.

GLEESON CJ: Why do you not just intimate to us that you might renew that application on 31 July?

MR GRIFFITH: Yes. May I do that without a document, your Honour?

GLEESON CJ: Yes.

MR GRIFFITH: If your Honours please. I so indicate.

GLEESON CJ: Yes.

MR GRIFFITH: So I will make it plain, your Honour, we would seek to avoid the underlying issue.

GLEESON CJ: I understand. Amongst other things, you do not want the outcome of this to turn upon the fact that a decision was made to refer it into the Full Court rather than to grant special leave.

MR GRIFFITH: Yes. The logic of my application would be to consider that first so that we resolve half of the issues of the appeal.

GLEESON CJ: Well, the parties have been given an opportunity to agree between themselves upon a division of time and how they use their agreed allotted time will be a matter for them.

MR GRIFFITH: Yes. My point is, your Honour, if such leave were granted for ground 1, then the issue would be entirely on the discretionary issues of applying the Extradition Act test and not on issues of inherent power, which seems to be two-thirds of the case put against us.

GLEESON CJ: We will adjourn now. I do not think there is anything we need to say further about the actual form of the order that was made. What was troubling us about that has already been indicated and you have - - -

MR GRIFFITH: Your Honours, if we are minded to make application, should we arrange for the files to be brought to Sydney? It was a Melbourne hearing and that - - -

GLEESON CJ: Yes, that is a good idea. We will adjourn.

AT 12.57 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 31 JULY 2001