Giorgi, Antonio v The Queen

[1983] FCA 319

I N THE FEDERAL COURT OF AUSTRALIA )

)

AUSTRALIAN CAPITAL	TERRlTORY	)
) No. ACT G65 of 1 9 8 3

REGlSTRY	DISTRICT	)
GENEPAL DTVISION

ON APPEAL FROM THE SUPREYS COURT OF

TFE AUSTRALIAN CAPITAJA TERRITORY

RETIEEN: ANTONIO GIORGZ

A p p e l l a n t

- AND : QUEEN THE

Respondent

O R D E R

JUDGE MAKING ORDER: Neavcs J .

DATE OF ORDER:	1 4 November 1983
WJXRE >IADE :	Canberra

T I E COURT	ORDERS:
T h a t the motion n o t i c e of w h i c h >7as f i l c d on

25 October 1983 be dismissed.

- A U S T M L I M CAPITAL TERL1ITORY

) No. ACT G75 o f 1983

RIGISTRY	DISTRICT	)
)
GENERAL DIVISION	j

ON APPEAL FROM THE SUPREME COURT OF

THI;. AUSTPALIAN CAPITAL TERRITORY

BETl\EEN : THE QUEEN

A p p e l l a n t

M D :

__ m r o m o CIORGI

R e s p o n d e n t

O R D E R

JUDGE YAKING ORDER:	Neaves J .
DATE OF ORDER:	14 November 1 9 8 3
WHERE NADE:	Canberra

,. '

THE C O W 1 ORDERS:

T h a t the not ice oE appeal f i l e d herein on

behalf of the a p p e l l a n t on 16 S e p t e m b e r 1 9 8 3 be taken

to have been served o n the r e s p o n d e n t on t ha t da te .

' I N THE FFJlEML COURT OF AUSTRALIA )

1

AUSTiGlLLLI CAP TAL TERRITORY 1

No. ACT G65 of 1953

DISTRICT REGISTXY -

GENEIUTd D I V I S I O N

BETWEEN : ANTOKIO GIORGI

A p p e l l a n r :

__ AND : T I E QUEEN

R e s p o n d e n t

I N THE FEDEFLV. COUPIT OF AUSTRALIA - )

AUSTRALIAE CAPITAL - TEIVSTORY ) ) No. ACT G75 of 1983

DISTRICT REGISTRY	)
1

__ GENEnnAL D I V L S I O N )

RET1JEEU : THE QUEEN

A p p e l l a n t

- & i l l : ANTONIO GIORGI

R e s p o n d e n t

CORAM : Neaves J .

- DATE : 1 4 N o v e m b e r 1983

1.

- REASONS FOR JUDGPIENT

On 25 October 1983 the Crown gave n o t i c e o f

two motions t o t h i s Court i n r e l a t i o n to matters No. ACT

G65 of 1963 and Xo. ACT G75 of 1983 pending i n t h e a p p e l l a t e

j u r i s d i c t i o n o f this Court, both matters being appeals from

the Supreme Court of the Austral ian Capi ta l Terr i tory.

Flatter No. ACT G65 of 1953 was commenced by a

no t i ce o f appea l f i l cd on behalf of Antonio Giorgi on

1 2 August 1933 appealing against his conviction by a j u r y

on 22 Ju ly 1983 f o r an offence under paragraph 8 6 ( 1 ) (a)

of the Crimes Act 1914 (Cwlth) o € conspi r ing wi th cer ta in

named persons and with persons unknor-m t o comvit an offence

aga ins t a of the Commonwealth, namely sub-section 4(3)

of the Poisons and Narcotic Drugs Ordinance 1978 of the

Aus t ra l ian Capi ta l Ter r i to ry . In tha t mat te r 2 supple-

mentary notice of appeal was f i l e d on behalf of Giorgi on

5 September 1953 following the imposition upon him on

26 August 1963 of a sentence of imprisonment for 15 months,

such sentence being suspended upon Ciorgi enter ing i r l to a

recognizance to be of good hehavlour for two years . Giorgi

was also f ined $500. A nc t i ce of cross-appeal was f i l e d

on behalf of the Crown on 20 September 1983.

On the hear ing of the motion on 28 October 1983

t h e Crown sought no order in mat te r No. G65 of 1983. That

motion i s , thereEore, dismissed.

2 .

?Iattcr No. ACT C 7 5 c€ 1983 was cormrenced by

a not lce of appea l f l l ed on behalf of the Crom-L OP 1 6 S e p t -

ember 1983. The ground of the appeal i s tha t t he sen tence

imposed on Giorgi i s inadequate.

The no t i ce o f motlon as f i led sought the following

o rders -

1. That the not ice of appeal f i led on 16 September

1983 be taken to have been served on Giorgi on

1 6 September 1983;

2 . That instead of personal service on G i o r s i , t h e

Cr0t.m have l e m e to se rve the not ice o f appeal on

Giorgi by serving a copy thereof on P i r .	W.G.	P i e rce ,
G i o r g i ' s s o l i c i t o r ;

3. That the t ime f ixed for service of the Notice

of Appeal on Giorgi be extended t o 31 December

1983 o r s u c h e a r l i e r t i r e a s t o the Court seeas f i t ;

4 . Any fu r the r o rde r t he C o u r t t h i n k s f l t .

On the hearing of the motion the Crown was

represented by Mr. Lalor. Giorgi was represented by

Hr. Pierce who had been h i s s o l i c i t o r i n t h e p r o c e e d i n g s

i n t h e Supreme Court of t he Aus t r a l i an Cap i t a l Te r r i t o ry

and had the conduct of G i o r g i ' s eppeal in mat ter No. ACT

G65 of 1983.

The Crown su?mit tcd that an order should be

made i n terms o f the f i r s t o rder sought in t he no t i ce oE

3

motion, relying €or this purpose upon the provis ions

o f Order 7 , r u l e 10 of the Federal Court 1Zules. That

rule provides -

"kJhere f o r any reason it i s imprac t i ca l t o

scrve a document i n t h e manner s e t o u t i n t h e

Rules, but s teps have been taken to bring thc

document t o t h e n o t i c e o f t h e p e r s o n t o be

served, the Court may o rde r t ha t t he document

be taken t o have been served on that person

on a date spec i f ied in the order ."

I n t h e a l t c r n a t i v e t h e Crown sought an order

under Order 3, r u l e 3 of the Federal Court Rules extending

the time within which to serve the not ice of appeal f i led

on 20 September 1983 t o 29 November 1983, that being, the

da te on which the hear ing of Giorg i ' s appea l in mat te r

No. ACT G65 oE 1983 i s expected to commence beEore a Full

Court	o f	th l s Cour t .
Mr. Pierce nei ther consented to nor opposed

t h e Crown's appl ica t ion .

I am s a t i s f i e d on the mater ia l . before me t h a t

Giorgi departed Austral ia f o r overseas on or about: 6 Sept-

ember 1983 and had not re turned to Australia when the

motion came on for hear ing on 28 October 1983. There i s

evidence before me t h a t Mr. Pierce informed an off icer of

the Deputy Crown S o l i c i t o r ' s O f f i c c on 2 4 October 1983 t h a t

Ciorgi was i n Italy but was expected t o r e t u r n t o A u s t r a l i a

soon. M r . Pierce informed me t h a t G i o r g i was expected t o

re turn for thc hear ing of his appeal to this Court which

4 .

has been fixed t o commence beforc a Full Court o n

29 N0vei;lbc.r i 9 5 3 .

The evidence beforc me es tab l i shes tha t personal

se rv ice of the notice of appeal was unsuccessfully attempted

on Giorgi on 16 September 1983 a t h i s r e s idence . A copy of

t h e n o t i c e of appeal was then del ivered t o P I r . Picrce a t h i s

o f f i ce a t Canber ra l a t e r on thz t da t e . By l e t t e r da ted

12 September 1983 addressed t o Mr. Pierce , the Deputy Crown

S o l i c i t o r had asked t o be advised whether, m the event of

an appeal by the CroTn, Nr. Pierce was prepared to accept

se rv ice oE a not ice of appeal and, i f not , 17ould 11s seek

i n s t r u c t i o n s t o do so as a matter of urgency. M r . P ie rce

by leizter dated 15 September 1983 (vhich vas apparcntly

not received by the Deputy Crown S o l i c l t o r u n t i l 1 9 S e p t -

ember 1953) confirmed that "I have in s t ruc t ions on behalf

of A . C i o r g i to accept service of a no t ice o f appeal by

t h e Crovm" .

Order 5 2 , r u l e 12 provides that an appeal. i s

i n s t i t u t e d by t h e f i l i n g o f a not ice 01 appeal. The n o t i c e

of appeal i s , by v i r t u e oE Order 5 2 , rule 1 5 , t o be f i l e d

and served within the time there prescribed. Order 52,

r u l e 2 r equ i r e s t ha t s e rv i ce 01 a not ice o f appeal be

e f fec ted by serving a signed and scaled copy o f t h e document:

personzl ly on thc par ty t o bc scrvcl.d o r by de l ivcr ing a

signed and sealed copy of	the dacurent	t o	t h a t p a r t y ' s
S .

address for service in the proceeding i n the cour t

appcaled from. There i s nothmg bcEore me t o i n d l c a t e

tha t Glorg i had an address for service i r t the proceeding

i n t h e Supreme Court o€ t he Aus t r a l i an Cap l t a l Te r r i t o ry

o r , i f he d i d , what that address was I

During the hearing I expressed some doubt whether

the power conferred by Order 7 , r u l e 10 w a s a v a i l a b l e i n

thc case of the service of a not ice of appeal in view oE t h e

express provis ion for service contained in Order 5 2 , r u l e 2 .

The general provis ion in Order 7 sub-rule l(1) r equ i r ing

or iginat ing process t o be served personzlly i s express ly

s a i d t o be sub jec t t o the p rov i s lons o f t ha t o rde r but

no s imi l a r words are used in Order 52 , r u l e 2 . However,

having given the matter further consideration I am 01 the

opinion that Order 7 , r u l e 1 0 i s a provis ion of general

a p p l i c a t i o n j u s t as Order 3 , ru l e 3 v a s h e l d t o be by Fox J .

!

i n The Queen v. Bishop (unreported - 3 February 1 9 8 2 ) , a view i

with which Deane J . was inclined to agree (Eishop v. - R.

(1952) 40 A.L.R. 40 a t p . 41). It i s , t he re fo re , open t o

I

the Court to make the order sought by the Crown i f the

meri ts of the appl lcat ion warrant that course.

I am s a t i s f i e d t h a t it was imprac t icable to

serve the not ice of appeal within the t i m e p rescr ibed by

del iver ing s lgned and sealed copy to Giorgi personal ly

by reason o€ the ci rcumstancc that a t a l l relevant t imes

Giorgi was overseas. There was then , as t h e r e was a t t h e

6 .

* time tbe motion was h e n d , no speciEic incormation as to

his precise vhereabouts	or	as	t o	the date of hi5 proposed
r e t u r n .

In those circunstances the Crown de l ivered to

Mr. Pierce within the t ime prcscr ibcd by Order 52, rule 15

a copy o f the not ice o f appeal. Mr. Picrce was t h e s o l i c i t o r

who had acted for Giorgi in the proceedings i n the Supreme

CourL of the Aus t ra l ian Capi ta l Ter r i to ry and had on Giorgi ' s

beha l f f i l ed a not ice of appea l t o th i s Cour t i n ma t t e r

No. ACT G65 of 1983 giving on tha t no t ice of appea l h i s

address as being Giorgi ' s address for service. Further ,

hc had before the copy o f the notice of appeal was

del ivered t o him rece ived ins t ruc t ions Erorn Giorgi to

zccept service of the not ice of appeal on Glorgl 's behalf .

It i s a l s o c l ea r t ha t Mr. Pierce has brieEed counsel to

appear before the F u l l Court on Giorgi ' s behalf on the

bas i s t:hat the Crown's appeal i s on foo t .

I n t h e l i g h t of t h i s m a t e r i a l I am s a t i s f i e d

tha t s t eps have been taken by the Crown wi th in the meaning

of Order	7 ,	r u l e	1 0	t o br ing the not ice	o f	appeal	to Giorgi ' s
no t i ce .

,,,,I, t he re fo re , o rde r t ha t t he no t i ce oE appeal

f i l e d on behalf oE the Crown on 1 6 September 1982 be taken

t o have been served on Giorgi on tha t da t e . I t i s unnec-

e s sa ry to cons ide r t he a l t e rna t ive form o f order sought.

7 .

I c e r t i f y that the preceding seven

( 7 ) pages a r e a t r u e copy of t h e

Reasons f o r Judgment here in o f t h e

Honourable Nr . J u s t i c e Neaves.

DATED: 14 November 1983

.

8 .