von Arnim v Ellison

Case [2006] FCAFC 49

FEDERAL COURT OF AUSTRALIA

Von Arnim v Honourable Christopher Martin Ellison [2006] FCAFC 49

EXTRADITION – whether extradition request valid – availability of collateral review of warrant – requirements for issue of warrants under Extradition Act 1988 (Cth) – whether warrant valid on its face – whether warrant affected by jurisdictional error – whether breach of statutory duty or duty of care

Extradition Act 1988 (Cth)

Von Arnim v Federal Republic of Germany (No 2) [2005] FCA 662 affirmed

Von Arnim v Federal Republic of Germany [1999] FCA 1159; (1999) 107 A Crim R 529 cited

Posner v Collector for Interstate Destitute Persons (Victoria) (1946) 74 CLR 461 cited

Hadkinson v Hadkinson [1952] P 285 cited

R v Oldham Justices; Ex parte Cawley [1997] QB 1 cited

City of London v Cox (1867) LR 2 HL 239 cited

Ward v Murphy (1937) 38 SR (NSW) 85 cited

Andrew v Marris (1841) 1 QB 3 cited

Ousley v The Queen (1997) 192 CLR 69 considered

Murphy v The Queen (1989) 167 CLR 94 cited

Coco v The Queen (1994) 179 CLR 427 considered

McArthur v Williams (1936) 55 CLR 324 cited

R v Nicholas [2000] 1 VR 356 cited

P v Australian Crime Commission [2005] FCA 55 cited

R v Tracey & Others (No 3) [2005] SASC 357 cited

R v Gassy (No.3) [2005] SASC 496 cited

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 cited

Harris v Attorney-General (Cth) (1994) 52 FCR 386 cited

Trimbole v Commonwealth (1984) 155 CLR 186 cited

Zoeller v Federal Republic of Germany (1988) 19 FCR 64 cited

Wiest v Director of Public Prosecutions (1988) 23 FCR 472 cited

Winkler v Director of Public Prosecutions (1990) 25 FCR 79 cited

Schlieske v Federal Republic of Germany (1987) 76 ALR 417 cited

Commonwealth v Dutton (2000) 102 FCR 168 cited

Harris v Attorney-General(Cth) (1993) 45 FCR 11 cited

E M Satow, Satow’s Guide to Diplomatic Practice, 5th edn, ed Lord Gore-Booth, Longman, 1979

ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM
v HONOURABLE CHRISTOPHER MARTIN ELLISON and COMMONWEALTH OF AUSTRALIA
VID 1034 of 2005

MADGWICK, SIOPIS and YOUNG JJ
11 APRIL 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1034 of 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM
APPELLANT

AND:

HONOURABLE CHRISTOPHER MARTIN ELLISON
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGES:  MADGWICK, SIOPIS and YOUNG JJ

DATE OF ORDER:     11 APRIL 2006

WHERE MADE:         MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The respondents’ costs of the appeal be paid by the appellant.

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

VID 1034 of 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM
APPELLANT

AND:

HONOURABLE CHRISTOPHER MARTIN ELLISON
FIRST RESPONDENT

COMMONWEALTH OF…

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AGLC
von Arnim v Ellison [2006] FCAFC 49
Case
[2006] FCAFC 49
Decision Date

CaseChat Overview and Summary

Dr von Arnim appealed against the trial judge’s dismissal of his claim for damages for false imprisonment and breach of duty. The respondents on appeal were the Commonwealth of Australia, the Minister for Justice and Customs of the Commonwealth of Australia, and the Australian Federal Police. The appeal was heard by the Full Court of the Federal Court of Australia. The central issue before the Court was whether the trial judge was correct to dismiss Dr von Arnim's claims for damages and to order him to pay the respondents' costs. Dr von Arnim argued that the trial judge erred in finding that there was sufficient evidence that the German warrant was valid and that he was an extraditable person. The Court found that the trial judge was correct in dismissing Dr von Arnim’s claims. The Court found that the evidence was sufficient to support the validity of the German warrant and that Dr von Arnim was an extraditable person. The Court also found that the trial judge was correct to order Dr von Arnim to pay the respondents' costs. The Court dismissed the appeal and ordered that Dr von Arnim pay the respondents' costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The respondents’ costs of the appeal be paid by the appellant.

Background

Background to the litigation

In this proceeding, the appellant, Dr von Arnim, claimed damages for false imprisonment and breach of duty. The trial judge dismissed the application and ordered that Dr von Arnim pay the costs of the second and third respondents (the respondents on appeal), including all reserved costs. Dr von Arnim now appeals against the trial judge’s orders. The trial judge’s decision is reported at Von Arnim v Federal Republic of Germany (No 2) [2005] FCA 662. THE FACTUAL BACKGROUND On 1 September 1994, the Local Court in Stuttgart in the Federal Republic of Germany (‘Germany’) issued a warrant for the arrest of Dr von Arnim (‘the German warrant’). The German warrant ordered that Dr von Arnim be remanded in custody pending trial, and accused Dr von Arnim of having committed 50 offences involving fraud, attempted fraud and falsification of documents. Dr von Arnim instituted court proceedings in Stuttgart to challenge the issue of the German warrant. As a result of these proceedings, the Higher Regional Court of Stuttgart on 29 December 1994 revoked one charge of falsification of a document, but otherwise confirmed that the German warrant would continue to apply in respect of the remaining 49 charges. The trial judge found that, by a diplomatic note dated 20 February 1996 (‘the diplomatic note’), the German Embassy made a request to the Australian Government for the extradition of Dr von Arnim. The diplomatic note submitted duplicate copies of the German warrant. Dr von Arnim challenges the authenticity of the diplomatic note; he contends that there was no sufficient evidence that the document tendered in evidence before the trial judge was in fact a diplomatic note from the German Embassy to the Commonwealth Department of Foreign Affairs and Trade. On 7 December 1998, an officer of the Australian Federal Police, Detective Constable Appleby (‘Appleby’), made an application on behalf of Germany for an arrest warrant under s 12(1) of the Extradition Act 1988 (Cth) (‘the Act’). The application was supported by an affidavit by which Appleby deposed that Germany intends to seek the extradition of Dr von Arnim for the offences of fraud and attempted fraud referred to in the German warrant. The affidavit annexed a translated copy of the German warrant. A warrant for the arrest of Dr von Arnim was issued under s 12(1) on 7 December 1998. The warrant recites that the Deputy Chief Magistrate issuing the warrant was satisfied, on the basis of Appleby’s affidavit, that Dr von Arnim was an extraditable person for the purposes of the Act in relation to Germany which was an extradition country. Dr von Arnim was arrested on the authority of the warrant on 21 December 1998 and remanded in custody. On 8 January 1999, the then Minister for Justice and Customs of the Commonwealth of Australia, Senator Vanstone, gave a notice under s 16(1) of the Act in relation to the receipt of an extradition request from Germany (‘the Notice’). In accordance with the provisions of s 16, the Notice recited that the Minister was of the opinion that Dr von Arnim was an extraditable person for the purposes of the Act, conduct equivalent to that alleged against Dr von Arnim would have constituted extradition offences in relation to Australia, and there was no extradition objection. On the basis of these opinions, the Minister stated that an extradition request from Germany, an extradition country, had been received in relation to Dr von Arnim.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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