Schoenmakers, N.M. v Department of Public Prosecutions

[1991] FCA 512

Re: NEVILLE MARTIN SCHOENMAKERS
And: DEPARTMENT OF PUBLIC PROSECUTIONS
Nos. W G53 and 54 of 1991
FED No. 512
Practice
30 FCR 488

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Pincus(1), Foster(1) and French(1) JJ.

CATCHWORDS

Practice - appellant in contempt of Court - breach of order of Court - failure to appear in person - whether appeal can be pursued - Court's inherent jurisdiction to dismiss appeal.

Extradition Act 1988

Federal Court Rules, O.20, r.2

HEARING

PERTH

#DATE 2:8:1991

Counsel for the appellant: Mr C.M. Ellison

Solicitors for the appellant: Williams Ellison

Counsel for the respondent: Mr M.S. Weinberg QC

with Mr D.R. Alexander

Solicitors for the respondent: Director of Public Prosecutions

ORDER

The appeal stand dismissed unless on or before 9 August 1991 the appellant appears personally before a Judge of the Federal Court of Australia at Perth to pursue the matter.

The costs of and incidental to today's hearing be the costs of the respondent in any event.

The costs of and incidental to the proceedings generally be taxed and paid by the appellant to the respondent, if and when the order for dismissal takes effect.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The appellant, Mr Schoenmakers, has purported to appear by counsel today, but is not present in person; he brings this appeal in an endeavour to challenge a decision of Walsh J. given in the Supreme Court of Western Australia on 22 May 1991. In that decision, the Supreme Court dealt with a determination made by a Stipendiary Magistrate in the Perth Court of Petty Sessions in November last year relating to extradition proceedings brought against the appellant.

1. The decision of Walsh J. gave the appellant success in part, but substantially dismissed the proceedings which he brought in the Supreme Court and confirmed the decision of the Magistrate. We say "substantially" in deference to the fact that, as to one count, the appellant succeeded before Walsh J. While the appeal in this Court was pending, an order was made for bail under the provisions of the Extradition Act 1988 on 21 June 1991. The order released the appellant from custody on bail upon entering into a recognisance in the sum of $100,000 with sureties, subject to his surrendering his passport or passports, not applying for the issue of an Australian passport, residing at a certain designated address and reporting twice daily.

2. The appeal was set down for hearing today in the ordinary course and Mr Ellison, who has purported to appear for the appellant today, has conceded that the whereabouts of the appellant are unknown. The appellant has not appeared before the Court and on Wednesday last, Mr Ellison was informed that he had disappeared from the address at which the order of 21 June required him to reside. In these circumstances senior counsel for the respondent has urged upon the Court that the proper course is to dismiss the appeal.

3. The argument which has been advanced is based upon the provisions of Order 20 rule 2(1) of the Rules of this Court which reads as follows:
   

"Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding -

(a) no reasonable cause of action is disclosed;

(b) the proceeding is frivolous or vexatious; or

(c) the proceeding is an abuse of the process of the Court,

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding".

1. A question arises as to whether or not the evidence discloses that the proceeding is an abuse of the process of the Court; counsel for the respondent did not contend that in its inception the appeal was an abuse of process, nor that it was then frivolous or vexatious. His argument was that, because of the breach of the order made on 21 June 1991, namely the residence and reporting conditions, the proceeding had become an abuse of process; he said it was demonstrated that the appellant was flouting the order of the Court and did not seriously wish to pursue the appeal.

2. The view of the Court is that the breach of the order of 21 June 1991 is a serious matter indeed and it should be visited with a penalty in relation to these proceedings. The unusual step which was taken, of allowing bail pending the appeal, was based upon evidence and assurances which satisfied the Court at that stage that the appellant was genuine in his desire to pursue the appeal and to submit himself to the jurisdiction of the Court, and that, indeed, then appeared to be so.

3. His subsequent apparent change of mind, in the view of the Court, should produce the result that the appeal can no longer be pursued. The view we take, however, is that the dismissal of the appeal should, first of all, be conditional, in a way which we will mention shortly and, secondly, should be based, not upon Order 20 rule 2, but upon the inherent jurisdiction of the Court. It is the opinion of the Court that a sufficiently serious breach of an interlocutory order may enliven the Court's jurisdiction, as a matter of implied incidental power, to dismiss the principal proceedings.

4. For example, it sometimes happens in ordinary civil proceedings that serious breaches of interlocutory orders or, indeed, one very serious breach of an order enlivens that jurisdiction. Here the breach which has apparently occurred seems to us to be of sufficient seriousness to give rise to ground for exercise of the jurisdiction, sometimes in other contexts called an inherent jurisdiction. The basis upon which the order for bail was made was partly that the appellant had been in custody for some considerable time while the extradition proceedings wended their way through the Magistrates Court, the Supreme Court and this Court. The conduct of the appellant is certainly such as not to encourage the Court to take a similar step in other cases, which may indeed be more deserving cases. However that may be, we are all of the opinion that the appeal should, subject to a condition, be dismissed. The condition we propose to impose is one which allows the appellant a short period in which to change his mind, although none of us is confident that this will have any practical beneficial result. That is, we propose to order that the appeal stand dismissed unless, on or before 9 August, which is one week from today, the appellant appears before a Judge of the Court to pursue the matter and so appears in this city.

5. The expectation is that if, during that week, the appellant either surrenders or is found by the police and arrested, those who have charge of him will ensure that he has an opportunity to appear in this Court, if time permits, on or before 9 August.

6. We would add that we have taken into account the remarks which have been made by counsel for the respondent, pressing upon us the desirability of ensuring that extradition proceedings are expeditiously disposed of and the importance of fulfilling Australia's treaty obligations in that regard. We think that these matters are relevant in the exercise of the Court's discretion, and in particular are relevant in determining whether or not to order dismissal, as contended for by the respondent, or merely a stay, which was the suggestion which Mr Ellison made to fit the circumstances.

7. We should also mention that we have given consideration to the submission of counsel for the respondent to the effect that counsel for the appellant has at present no proper instructions. We think it unnecessary to make any final determination on that point.

8. The orders will therefore be as follows: that the appeal stand dismissed unless on or before the ninth day of August 1991 the appellant appears personally before a Judge of this Court at Perth to pursue the matter. As to costs, the order of the Court will be that the costs of today's hearing will be the costs of the respondent in any event. As to costs generally, the order will be that the costs of and incidental to the proceedings will be taxed and paid by the appellant to respondent, if and when the order for dismissal takes effect.