is discovery appropriate?
24 Is it appropriate, in the circumstances of the case, to make an order for discovery?
25 In the Revised Schedule for Discovery, the applicants have sought to categorise and limit the documents to which they seek access. The validity of those categorisations and limitations is not as readily apparent as it might otherwise be, because there are no pleadings in these applications. That has proved unsatisfactory in a number of respects. In the end, however, I do not think that anything turns upon the absence of pleadings so far as the discovery application is concerned. There is by now a good deal of affidavit material filed by the applicants and the first respondent bearing on the applicants' claims. Further, as already noted, the first respondent has produced the Departmental memoranda and attachments provided to her for the purpose of assisting her in determining whether or not the s 16 notices were to be issued. Having regard to the affidavit material, the memoranda and the submissions of counsel, the nature of the relevant disputed or non-admitted facts is, I think, tolerably clear.
26 It is to be borne in mind that these proceedings have reached a stage where the applicants, by their amended applications, have set out their cases in some detail. Moreover, at an earlier stage, I concluded that, for the purposes of an application for an interlocutory injunction, there were serious issues to be tried in relation to some of the claims made by the applicants.
27 Before proceeding further, it is also relevant to note that the applicants' submission on the discovery applications depends to some extent on what is sometimes called the "Carltona principle": see Carltona Ltd v Commissioners of Works [1943] 2 All ER 560. For present purposes, it suffices to say, as did the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24, especially at 45 per Mason J and 66 per Brennan J, that a Minister may retain power to make a decision while relying on relevant Departmental officers to draw the Minister's attention to the pertinent facts. If the Departmental officers fail to do so, the Minister's ignorance does not preserve the decision from successful challenge. At least for the purposes of the discovery application, the first respondent conceded that if she accepted the advice tendered to her by Departmental officers, then she must be taken to have taken into account, in a constructive sense, the matters which they took into account. For present purposes, I also accept that if the Departmental officers failed to take a matter into account, then, absent contrary indication, so too did the first respondent.
28 As already noted, Category (I)(1) of par 1 of the Revised Schedule for Discovery seeks production of documents in the possession, custody or power of named Departmental officers relevant to the recommendation made to the first respondent and concerning "any disclosure or communication by Mexico of any Amparo Stays" in respect of the relevant warrants. Documents of the same description are sought in par 2, Category (1), and in par 3, Category (1), of the Revised Schedule. None of the recommendation memoranda prepared by the Departmental officers for the first respondent's assistance contains any reference to the Amparo stays. It follows that either Mexico did not disclose to Australia the existence of the stays prior to the preparation of the relevant memorandum, or the relevant Departmental officers were told of the grant of the stays but did not include in that document a reference to them. Those issues of fact are relevant to a number of the grounds relied upon by the applicants, including non-disclosure, relevant consideration, and unreasonableness. In the circumstances, the applicants are entitled, in my opinion, to discovery of documents within Category (I)(1) of par 1, and Category (1) of pars 2 and 3 of the Revised Schedule for Discovery.
29 For much the same reason, I am of the view that the applicants are entitled to discovery of the documents sought in Category (I)(2) of par 1 and Category (2) of par 2 of the Revised Schedule for Discovery. The relevant Departmental memoranda contain no reference to the possibility that the prosecutions may have become time-barred. Discovery may assist in determining whether or not Mexico disclosed that possibility to Australia and whether, in consequence, the relevant Departmental officers knew of it, even though they did not include reference to the possibility in the relevant memoranda provided to the first respondent.
30 I am also of the view that the applicants are entitled to discovery of the documents sought in Category (I)(4)(A) and (B) of par 1 and Category (4)(A) and (B) of par 2 of the Revised Schedule for Discovery. The documents sought are documents in the possession, custody or power of named officers relevant to the recommendation made to the first respondent and concerning any consideration by her or on her behalf of the relevant Amparo stays and their effect on matters falling for consideration by reason of s 16 (and s 6) of the Act. As already noted, I accept, for present purposes, that if the Departmental officers failed to consider a requisite matter, the first respondent's ignorance would not protect her decision. Discovery of the documents referred to may assist in determining some of the basal factual issues upon which the relevant consideration and unreasonableness grounds may depend. For substantially the same reason, the applicants are, in my opinion, also entitled to discovery of the documents described in Category (I)(5) of par 1 and Category (5) of par 2 of the Revised Schedule for Discovery.
31 I am not disposed, however, to order discovery of the documents sought in Category (I)(3) of par 1 and Category (3) of par 2 of the Revised Schedule for Discovery. These categories relate to the natural justice and unreasonableness grounds. Each applicant seeks documents within the possession, custody or power of named Departmental officers relevant to the recommendation made to the Minister and concerning
any allegations made by Mexico or information provided by Mexico concerning the applicant's "flight" from Mexico, his association with [the other applicant], his history, character or conduct.
32 In invoking the principles of natural justice, the applicants have alleged that:
The first respondent was required to afford to the applicant an opportunity to make submissions and to be heard before the issuing of the notice, which obligation required the first respondent to provide the applicant with copies of the relevant supporting documents, which she failed to do despite express requests by the applicant.
By way of particulars, it is alleged, amongst other things, that the first respondent breached her duty by reason of the fact that she received "a large body of information and documentary material from Mexico which included a large number of highly prejudicial allegations made by Mexico about the applicant concerning his 'flight' from Mexico, his association with [the other applicant], his history and character" etcetera. Whilst I have some doubts as to whether these particulars are, in truth, particulars of the principal allegation, nothing may turn on this.
33 As it has been outlined to me, each applicant's case at this point is that, despite his repeated requests, he received none of the "supporting" documents (i.e., the relevant extradition request and attachments, as well as, perhaps, the Departmental recommendation) prior to the giving of the relevant s 16 notices and was, therefore, afforded no opportunity to contest the contents of the "supporting" documents. As to this ground, there is really no dispute as to the facts: the first respondent does not allege that she gave copies of such documents to the applicants prior to giving the relevant s16 notices. In consequence of the proceedings, however, each applicant now has copies of the relevant recommendation memoranda, extradition requests and attachments, and, in consequence, the material on which he necessarily relies to make out his natural justice ground.
34 The applicants do not claim that any other specific allegation or piece of information was made or given by Mexico adverse to their interests. The requested discovery is, at this point, general and non-specific. There is nothing to indicate that Mexico made any allegations concerning the applicants' flight from Mexico, etcetera, that are not contained in the relevant memoranda. Counsel who appeared on the applicants' behalf submitted:
[W]e believe our case, as to the natural justice point, would be significantly enhanced by being able to say that there was this body of material which was highly prejudicial which was taken into account [by a Departmental officer], in his capacity as making a recommendation to the Minister, and we weren't told about it.
There was no indication of precisely what those matters of "high prejudice" were and, as I have said, there was no basis to suggest that there were additional matters, not contained in the recommendation memoranda to the first respondent and adverse to the applicants, that were conveyed by Mexico to the relevant Departmental officers. It seems to me that what the applicants are seeking to do at this point is to "fish" for possible additional breaches of the rules of natural justice, in order to make out a further case which does not presently exist.
35 As already noted, the focus of the unreasonableness grounds is on the grant and effect of the Amparo stays, and the existence and effect of statutory bars to prosecution. There are also references to the applicants' claims of political persecution, as well as to the allegations made by Mexico concerning the applicants' flight from Mexico, their association with each other, their history, character and conduct. In support of discovery directed to this latter aspect of the unreasonableness grounds, the applicants' counsel submitted:
We would say in substance that these cases are really quite remarkable unprecedented, probably in Australian terms. Requests being made, charges statute-barred, serious questions about limitations, strong allegations of political persecutions substantiated, not just in the air, and yet against all that one sees a decision-making process that was rushing towards what was apparently an inevitable conclusion.
In written submissions, the applicants' counsel also called in aid the observations of Hill J in CanWest at first instance to the effect that an unreasonableness ground can only be made out when all the material before the decision-maker is available to the Court.
36 As I have already indicated, there is nothing to indicate that Mexico made any allegations (or provided any information) about the applicants' "flight" from Mexico, etcetera, that are (or is) not contained in the recommendation memoranda, and the applicants allege no specific additional matter was disclosed to Australia. Of this ground, in connection with a contested subpoena, Finn J said in Pasini v Vanstone [1999] FCA 1271 at par 38 as follows:
Notwithstanding the "particulars" given for the unreasonableness ground, for example, it is difficult to resist the conclusion on the material before me that the subpoenae in the terms in which they are cast are being used merely for the purpose of finding out whether or not there is evidence upon which to base their unreasonableness challenge to both the Minister's opinions and her decisions. It is not apparent to me that the applicants have any knowledge or reason to believe or to suspect at all that any such information existed in the hands of the Minister and her departmental officers other than as a matter of speculation from what may be suggested from the language of the departmental memoranda that were actually before the Minister and were provided to the applicants respectively. I am far from satisfied that the subpoenae in the main involve other than fishing: see Australian Securities Commission v Dalleagles Pty Ltd (French J, 27 February 1992, unreported); and see Somerville's case above.
I do not think that the position is any different with respect to this aspect of the applicants' discovery application. For much the same reasons as I have given with respect to the natural justice ground discussed above, it appears to me that the applicants seek discovery of documents about Mexico's allegations about the applicants' "flight" from Mexico, etcetera, in order to see whether they have some additional case to put under the unreasonableness grounds. I do not think that Hill J in CanWest at first instance intended to countenance such a result. No basis is shown to support the proposition that Mexico made any statements to the relevant Departmental officers, which were prejudicial to the applicants, beyond those appearing in the extradition request (including its attachments) and the relevant recommendation memoranda. In any event, it seems to me likely that, in the circumstances of the case, if the applicants' principal submissions concerning the effect of the Amparo stays and the statutory bars on prosecution were accepted, then the applicants would not necessarily be defeated by reason of the fact that the Court did not have all the other material before the relevant Departmental officers at the time the relevant recommendations were made, even though the ground relied on was that of unreasonableness.
37 For much the same reasons, I do not think that the applicants are entitled to discovery in the terms of Category (I)(6) of par 1, Category (6) of par 2, and Category (3) of par 3 of the Revised Schedule for Discovery. When regard is had to the relevant terms of the s39B applications, the requests are general and non-specific. They suffer from the same defects as the requests discussed above in connection with Category (I)(3) of par 1 and Category (3) of par 2 of the Revised Schedule for Discovery.
38 Further, in relation to Category (I)(3) and (6) of par 1, Category (3) and (6) of par 2, and Category (3) of par 3 of the Revised Schedule, it may also be relevant to consider the character of the s16 decisions under challenge: cf Pasini v Vanstone [1999] FCA 1271 at par 35 per Finn J. Finn J drew attention to the fact that the extradition procedure established under the Act consists of a number of separate but interrelated stages; and that each s 16 decision is but one amongst a number of administrative decisions which eventually lead to the making of a final decision under s 22 of the Act. The time for making that final decision has not yet come and, in any event, it is not under challenge in these proceedings. In that circumstance, the applicants' entitlement to discovery should not be extended beyond that which is ordinarily appropriate.
39 There remain to be considered two further categories. In the proceeding in V 120, Mr Pasini seeks access to documents in the possession, custody or power of named officers relevant to the recommendation and concerning "the query appearing on the last page of the memorandum … to the effect of the following terms: 'Would there have been a problem in giving him the [doc's] this morning first thing? Can someone please give me an outline?": see Category II. If such a document exists and is produced, it may throw light on the decision-making process the subject of the proceeding and, in particular, it may qualify some aspect of the relevant recommendation memorandum. It seems to me that, the first respondent having disclosed that memorandum, Mr Pasini is entitled to discovery of any document within Category II.
40 In the proceeding in V 222, Mr Cabal seeks discovery of documents in the possession, custody or power of named officers relevant to the recommendation and concerning
the matters addressed in the submissions made in the memorandum from Mexico dated 10 March 1999 referred to in paragraph (1)(g) of the Particulars to paragraph (1)(i) of the Further Amended Application in V 222 of 1999. (Category (2) of par 3 of the Revised Schedule for Discovery)
Paragraph (1)(i) of the V 222 application alleges that the first respondent breached her obligation to afford Mr Cabal an opportunity to reply to the submissions of Mexico dated 10 March 1999, answering the reasons proffered by Mr Cabal's solicitors as to why a s 16 notice should not be given. Paragraph (1)(g) of the particulars alleges that she failed in her duty to accord natural justice in that she
received in response to the submissions made to her by the applicant (dated 24 February 1999) a memorandum from Mexico (dated 10 March 1999) ("the Mexican memorandum") which contained highly prejudicial allegations against the applicant and his solicitors:
(i) without informing the applicant that she had so received the Mexican memorandum;
(ii) without informing the applicant of the nature of the prejudicial allegations contained within the Mexican memorandum;
(iii) without providing the applicant with any opportunity to reply to the prejudicial allegations within the Mexican memorandum;
(iv) the applicant being in custody and therefore his whereabouts and movements were subject to legal control.
41 In the course of the proceedings, Mr Cabal has received a copy of Mexico's submissions of 10 March 1999. He is, therefore, now aware of what was then said by Mexico concerning him. It is the failure of the first respondent to make the contents of that document available to him before giving the relevant s 16 notice which founds his natural justice claim in proceeding V 222. That claim does not depend upon the existence or production of the documents referred to in category (2) of par 3 of the Revised Schedule for Discovery. In seeking discovery of those documents, Mr Cabal is, it seems to me, seeking to find additional material to support an additional (and at present unknown) case against the first respondent. He is not, in my opinion, entitled to discovery of those documents.
42 For the reasons given, the first respondent will be required to give discovery of the following categories of documents set out in the Revised Schedule for Discovery prepared by the applicants:
Revised Schedule for Discovery, par 1(I)(1), (2), (4), (5); (II)
Revised Schedule for Discovery, par 2(1), (2), (4), (5)
Revised List of Documents, par 3(1).
I invite the parties to prepare a minute of orders in conformity with these reasons for judgment.
I certify that the preceding (42) forty-two numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.