Director of Public Prosecutions of the Commonwealth v Republic of Austria and Kainhofer

[1994] HCATrans 41

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Brisbane         No B42 of 1994

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS OF THE COMMONWEALTH

First Applicant

REPUBLIC OF AUSTRIA

Second Applicant

and

MARIA KAINHOFER

Respondent

Application for extension of   time

BRENNAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 OCTOBER 1994, AT 4.46 PM

Copyright in the High Court of Australia

__________________

MR N.J. WILLIAMS:  May it please the Court, I appear for the applicant.  (instructed by the Commonwealth Director of Public Prosecutions)

HIS HONOUR:   Yes, Mr Williams.

MR WILLIAMS:   Your Honour, this is an application for an order for substituted service or, in the alternative, for orders for enlargement of time within which service can be effected under the Rules.  The application is an application for special leave to appeal from a judgment of the Full Court of the Federal Court of Australia given at Brisbane on 14 September 1994.  I move on a summons of today’s date, an affidavit of Francis James Walsh of today’s date - - -

HIS HONOUR:   I do not seem to have a summons here.  No summons was filed I am told.

MR WILLIAMS:   Would Your Honour excuse me a moment?

HIS HONOUR:   Yes.

MR WILLIAMS:   Your Honour, those instructing me were informed that it was filed in Brisbane.  I have an unsigned copy.  If I could have the Court’s leave to file in Court - - -

HIS HONOUR:    You undertake to file it in due form at all events?

MR WILLIAMS:   Indeed, Your Honour.

HIS HONOUR:   Very well.  Yes.

MR WILLIAMS:   I move also on the affidavit of Francis James Walsh of 4 October, Louise Wendy Morse of 4 October.  Does Your Honour have those two affidavits?

HIS HONOUR:   I have the affidavit of Francis James Walsh.  By whom was the other affidavit?

MR WILLIAMS:   Louise Wendy Morse of today’s date, Your Honour.

HIS HONOUR:   Yes, I have that affidavit now.

MR WILLIAMS:   Your Honour, I hand up a form of draft order slightly different to that referred to in the affidavits.  The form of draft order which we seek setting out the ‑ ‑ ‑

HIS HONOUR:   Before we get to that you had better tell me what it is all about.

MR WILLIAMS:   Yes, Your Honour.  On 14 September the Full Court allowed an appeal by the respondent in this Court against orders that she be committed to prison to await the Attorney-General’s determination as to surrender under the Extradition Act.  Pursuant to the Full Court’s orders she was thereupon released.  She had been on bail for several months prior to that, bail having been granted late last year. 

The Extradition Act in section 21(5), a copy of which I have brought for Your Honour’s assistance if one is not available, provides that an application for special leave to appeal to this Court must be made within 15 days of the date of the judgment from which special leave is sought.

HIS HONOUR:   Yes.

MR WILLIAMS:   Order 69A rule 3 and rule 4 provide in respect of other appeals a period of 21 days for the commencement of the special leave application, and in rule 4 that the special leave application must be served within the period specified by sub-rule 3(1).

HIS HONOUR:   Well, have you made your application within 15 days?

MR WILLIAMS:   An application was made on the 28th, Your Honour, it was filed in the Brisbane Registry of this Court on the 28th.  On the same day Mr Walsh of the Brisbane Office of the first applicant contacted the solicitors acting for the respondent and asked if they would accept service.  hey indicated they would need to take instructions.  The following morning, the 29th, they indicated that they were not instructed to accept service.  That day Mr Walsh, together with a police officer, attended at the respondent’s place of work with the documents, had a discussion with the respondent’s de facto husband and were informed that the respondent’s ‑ ‑ ‑

HIS HONOUR:   Does that appear in these affidavits?

MR WILLIAMS:  It appears in the affidavit of Mr Walsh, Your Honour.  Perhaps I should take Your Honour to that.  I read the affidavit of Francis James Walsh of today’s date.  The affidavit sets out the various attempts that have been made at service, some of which may indeed amount to service within the meaning of Order 69A rule 4(3).  Does Your Honour wish me to read the affidavit aloud?

HIS HONOUR:   I am just trying to find out what the facts are.  They went to where she worked at Bulimba and were told that she had gone away for a while.

MR WILLIAMS:  Yes, Your Honour.  They thereupon attended at her last known place of residence, and the respondent’s de facto husband arrived soon after Mr Walsh and the police officer.  A discussion then occurred with the consent of Mr Berner, the de facto husband.  They entered the premises and left a copy of the special leave application documents in the premises and said something to Mr Berner about those documents.  On the same day a copy of the special leave application documents was served upon the firm of Witheriff Nyst, Solicitors, of Southport who were the solicitors on the record on one view in the Full Federal Court, and upon the town agents, Messrs Robertson O’Gorman, who had been the town agents at an earlier stage at least in the proceedings in the Full Federal Court.

The solicitors have since written - perhaps I should take Your Honour to annexure F to that affidavit of Mr Walsh, the last document in the bundle.  Your Honour will see in the last two paragraphs in that letter that the solicitors set out that they have instructions that the respondent will make herself available by appointment to be served not earlier than Thursday of this week.  That is outside the period of 21 days prescribed under Order 69A rule 4.

HIS HONOUR:   So you want an extension of time until this day when there is an appointment made to serve her, is that right?

MR WILLIAMS:  The primary order that we seek, Your Honour, is an order for substituted service, an order that service upon the solicitors tomorrow in Southport will be effective service for the purposes of the Rules.

HIS HONOUR:   What is my jurisdiction to make that order?

MR WILLIAMS:  Your Honour, we seek the order under Order 62 rules 6 and 7 of the High Court Rules.

HIS HONOUR:   Yes.

MR WILLIAMS:   Your Honour, there are two matters that it is appropriate that I mention upon an ex parte application.  One is that I should take Your Honour to the terms of section 21(5) of the Extradition Act.  Does Your Honour have the Act?

HIS HONOUR:   I have that.

MR WILLIAMS:   Your Honour sees there a period of 15 days prescribed.  It may be arguable, Your Honour, that a period of 15 days is prescribed both for the filing and serving of an application.  I draw     Your Honour’s - - -

HIS HONOUR:   That depends on what is meant by “application” in section 21(5) and that is a question which need not be determined now if the order that you are seeking is made.

MR WILLIAMS:   Yes, Your Honour.

HIS HONOUR:   It can be left for determination by a Full Bench of the Court if objection should be taken to the sufficiency of the application for the purposes of that subsection.

MR WILLIAMS:   May it please the Court.  Your Honour, I should also mention the provisions of the Federal Court Rules dealing with service of documents upon parties to the proceedings.  Your Honour is aware of the provisions of Order 69 rule 4(3) that service of a special leave application may be effected in the manner provided by the rules:

for the service of documents, or by leaving a copy at the address for service, if any, of the party to be served in the proceedings from which the application is brought.

The respondent was represented by Witheriff Nyst throughout the hearing of the Full Court proceedings, but in August of this year a notice of ceasing to act was filed in the Federal Court.

On 20 September, subsequent to the judgment of the Full Court allowing the appeal, a notice of change of solicitors was filed by Messrs Witheriff Nyst indicating that they were resuming acting for the respondent in the matter.  There may be some argument that service in accordance with Order 69A rule 4(3) has indeed been effected by the leaving of a copy of the documents at the premises of Messrs Witheriff Nyst on 29 September.

HIS HONOUR:   Now, that may be so but I would have the gravest doubts as to whether it is so.  What troubles me at the moment is that, looking at the letter from Messrs Witheriff Nyst, it does not appear from that material that if I were to make an order for substituted of service upon them that there would be any success in getting the notice to Mrs Kainhofer before the date on which Mrs Kainhofer will be available to take personal service of the documents on Thursday next.

MR WILLIAMS:   Yes, I accept that, Your Honour.

HIS HONOUR:   Should I make an order for substituted service when the obvious purpose of substituted service is to provide a method by which a party can be notified?

MR WILLIAMS:   For Your Honour to be satisfied that an order of substituted service should be made, Your Honour need be satisfied that the order proposed would result in the documents being drawn to the attention of the party.  An order that they be served upon Messrs Witheriff Nyst will, in accordance with the letter, which is annexure F, in all probability, result in those documents being served upon the respondent by the solicitors on Thursday.

HIS HONOUR:   Yes, which is the day on which she will be available anyhow.

MR WILLIAMS:   May be available, Your Honour.  The letter is a little equivocal on that point.  It does indicate that she will not be available until Thursday of this week; that Messrs Witheriff Nyst are unable to contact her in the meantime, it does not give any firm assurance that she will be available on Thursday and by that day, of course, we will be outside the 21-day period prescribed by the Rules for service of the documents.

HIS HONOUR:   What is the order that you are seeking?

MR WILLIAMS:   The primary order that we seek, Your Honour, is an order that service upon Messrs Witheriff Nyst tomorrow be effective service as substituted service.  The primary order we seek is order (a) in the draft orders handed to Your Honour. 

HIS HONOUR:   Yes.

MR WILLIAMS:   Unless there are matters on which I can assist Your Honour, those are my submissions.

HIS HONOUR:   Yes, very well.  I shall make an order in the terms of paragraph (a), and that is that service as set out in Order 69A rule 4 be substituted by service being effected by leaving a copy of the application for special leave and supporting documents at the offices of Witheriff Nyst, Solicitors, of 56 Nerang Street, Southport, Queensland, together with a facsimile copy of this order for substituted service by 5 October 1994.

I think I should add to that draft which I have read the requirement that the service be during ordinary office hours; that is between 9 am and 5 pm.  I think that should cover the point.  Is there anything further that you require?

MR WILLIAMS:   No, Your Honour.

HIS HONOUR:   Very well, there will be an order in those terms.

MR WILLIAMS:   May it please the Court.

HIS HONOUR:   Adjourn the Court.

AT 5.05 PM THE MATTER WAS ADJOURNED SINE DIE