Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227

FEDERAL COURT OF AUSTRALIA

Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227 CARLOS CABAL PENICHE AND MARCO PASINI BERTRAN v THE SECRETARY OF THE DEPARTMENT OF JUSTICE (VICTORIA) AND LISA HANNAN M V 547 OF 2000 NORTH J 30 AUGUST 2000 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 547 OF 2000

BETWEEN: CARLOS CABAL PENICHE

FIRST APPLICANT

MARCO PASINI BERTRAN

SECOND APPLICANT

AND: THE SECRETARY OF THE DEPARTMENT OF JUSTICE (VICTORIA)

FIRST RESPONDENT

LISA HANNAN M

SECOND RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 30 AUGUST 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. Save in relation to the order for costs made by Gray J on 14 July 2000 the appeal is dismissed. 2. Paragraph 2 of the said order is set aside and in lieu thereof there be no orders as to the costs of the proceedings before Gray J. 3. The appellants pay the first respondent's costs of this appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 547 OF 2000

BETWEEN: CARLOS CABAL PENICHE

FIRST APPLICANT

MARCO PASINI BERTRAN

SECOND APPLICANT

AND: THE SECRETARY OF THE DEPARTMENT OF JUSTICE (VICTORIA)

FIRST RESPONDENT

LISA HANNAN M

SECOND RESPONDENT

JUDGE: NORTH J

DATE: 30 AUGUST 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Carlos Cabal Peniche and Marco Pasini Bertran, the appellants, are presently held in custody at Port Phillip Prison pursuant to s 19(9)(a) of the Extradition Act 1988 (Cth). Port Phillip Prison holds both convicted and unconvicted persons. It is thus both a detention and correctional facility. The primary judge held that Port Phillip Prison was a prison for the purposes of s 19(9)(a). The issue before him, and on appeal, is whether, as the appellants contend, the word prison in s 19(9)(a) is limited to a place of detention and does not refer to a place of correction. 2 "Prison" is defined in s 5 of the Act as follows: "prison includes a gaol, lock-up or other place of detention" 3 The appellants relied on two of the three arguments which they had put to the primary judge. They argued that, in the context of this definition, the words "other place of detention" showed that the word "prison" did not include correctional institution. They also contended that, in accordance with Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, the Court should read the word "prison" as restricted to a place of detention so as to conform with Australia's obligations under Article 10 of the International Covenant on Civil and Political Rights. 4 In my view his Honour was correct in rejecting each of these arguments for the reasons he stated. It would be unnecessarily repetitive to set out those reasons except by reference to his Honour's judgment. 5 The appellants also complained that his Honour ordered them to pay costs without having heard them on this question. There was no argument on the question of costs before his Honour reserved his decision. His Honour handed down judgment which included an order that the appellants pay the costs of the first respondent. The appellants did not explain why they did not immediately return to his Honour before the orders were entered. The argument which the appellants wished to put to the primary judge was accepted in Cabal v United Mexican States (No 5) [2000] FCA 651 par 22 by Goldberg J in bail proceedings brought by the appellants as follows: "Although an order for costs is made to compensate a successful party for the expenses incurred in responding to an application or proceeding, that principle of compensation should yield in favour of the principle that a person detained by authority of the State should not be deterred by a potential costs order from seeking his or her liberty. There is a public interest in ensuring that persons detained against their will should not have any impediment put in their way which will inhibit them in seeking their liberty. In my view that public interest outweighs the general rule that a successful party is to be compensated for its costs by the unsuccessful party. In particular is this so where the costs are incurred by the State under whose authority they person is detained." 6 In the circumstances it is apparent that his Honour did not have the benefit of this argument. It is appropriate that this Court therefore determine the question of costs of the first respondent in relation to the hearing before the primary judge. 7 Counsel for the first respondent contended that the principle should not apply to this application because the appellants sought not only relief in the nature of habeas corpus but also sought a declaration that the Melbourne Assessment Prison is not a prison within the meaning of the Act. The second respondent took no part in the appeal and counsel for the Attorney General for the Commonwealth put no submission on the question of costs of the proceedings before Gray J. 8 In my view the principle enunciated by Goldberg J is applicable in this case. The declaratory relief was based on the same arguments as the claim for orders in the nature of habeas corpus. No extra time or expense was incurred in agitating an aspect of the case. 9 The appellants must however pay the costs of this appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.