The United States of America v Holt, H.P

[1993] FCA 986

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JUDGMENT No.

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) NO. QG194 of 1993 i
GENERAL DIVISION	1 i

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BETWEEN:  THE UNITED STATES OF AMERICA and THE DIRECTOR OF
PUBLIC PROSECUTIONS

Applicants	t
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AND: HENRY PETER HOLT	!-
t

Respondent 1 ~-

MINUTES OF ORDER

CO-:  SPENDER, DRUMMOND and COOPER JJ

DATE OF ORDER: 3 DECEMBER 1993

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The application is refused.

2.   There be no order as to costs.

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

REGLST''

- 5 1 A N 1994

AUSTRALIA

PRINCIPA'

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY	1	No. 46194 of 1993
GENERAL DIVISION	1

BETWEEN: THE UNITED STATES OF AMERICA and THE DIRECTOR

OF PUBLIC PROSECUTIONS

Applicants

AND: HENRY PETER HOLT

Respondent

CORAM :	SPENDER, DRUMMOND, COOPER JJ
PLACE :	BRISBANE
DATE:	3 DECEMBER 1993

EX TEMPORE REASONS FOR JUDGMENT

SPENDER J: By an application dated 26 November 1993, the applicants seek orders that service of a notice of motion be dispensed with and that a warrant be issued for the arrest of Henry Peter Holt pursuant to S. 21(6) of the Extradition Act 1988, which relevantly provides that where an extradition country appeals under subsection (3) of section 21 against an order made on a review of a Magistrate's decision in relation to an extradition request, and because the order made on that review

may order the arrest of the person.	a person has been released, the court to which the appeal is made
Henry Peter Holt was such a person, and by the order of Lee J on 12 November 1993, the order of filr Hogan, Stipendiary Magistrate, committing Mr Holt to prison to await surrender to the United States of America was quashed, and it was ordered that a Magistrate be directed to order the release of Mr Holt.
The affidavit material shows that on that day, M r Holt was released from custody. At the time of the pronouncement of the judgment of Lee J, no application was made to stay the judgment. In particular, no application was made to the court which would have the consequence that Mr Holt would remain in custody.
This notice of motion has been listed without being publicly advertised in the law list of this morning, and has been heard ex parte. The power to proceed ex parte on a notice of motion is referred to in 0. 19 r. 2(2) (d) , which permits a person to move the court or a judge without previously filing or serving a notice of motion, where the court or a judge dispenses with the requirements of service required by 0. 19 r. 2(1).
The applicant on the motion seeks that the court dispense with the requirements of 0. 19 r. 2(1), and also submits that on the material on which it relies, the court will, pursuant to S. 21(6)(e) order the arrest of Mr Holt. The basis for each application is in the material contained in the affidavit of Wendy Anne Barber, filed on 26 November 1993, and in particular
para. 20 of that affidavit.
That paragraph recites that on 24 November 1993, MS Barber received instructions from a lawyer in the International Branch of the Attorney-General's Department in Canberra, seeking an order pursuant to S. 21(6) (e) of the Extradition Act for the arrest of M r Holt. MS Barber says that she was informed by that lawyer, and verily believes, that the order for the arrest of M r Holt is sought because fears are held that he will leave the

jurisdiction once an appeal against the decision of Lee J is filed. Those fears are held because Henry Peter Holt is a New Zealand citizen and has neither assets nor family ties in Australia. That is the full extent of the evidentiary material on which the ex parte application is made, and on which the order for arrest is sought to be made.

In my opinion the material is quite insufficient to justify a court proceeding to entertain an application for the arrest of a person ex parte pursuant to 0. 19 r. 2(2)(d), and I would not myself proceed ex parte on the application for the arrest of Mr Holt.

As to whether there might be some purpose in adjourning the notice of motion so as to permit b l r Holt to be heard in relation to it, the evidentiary basis for the application is so sparse that, in my opinion, no useful purpose will be served in adjourning the notice of motion so as to proceed on a contested basis.

In the light of the circumstances that have occurred, it seems to me that the discretion conferred by S . 21(6)(e) of the Extradition Act would not, on the material available to the court, be such as to require or indicate that the discretion conferred by that section should be exercised in favour of the applicant in the present case. In my view, the court should not dispense with the requirements of 0. 19 r. 2(1), but that in any event, the notice of motion seeking the arrest of Holt pursuant to S. 21(6) (e) of the Extradition Act 1988 should be refused. DRUMMOND J: I agree with the orders proposed by Spender J, and with his reasons.

COOPER J: I also agree with the orders proposed by the presiding judge for the reasons he has given.

SPENDER J:  The notice of motion is refused. There will be no

orders as to costs.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Court.

Associate

Date: 3 December 1993

Counsel for the applicant	:	Mr D. J. S. Jackson QC
instructed by	:	Commonwealth Director of Public Prosecutions

Date of Hearing : 3 December 1993