von Arnim v Federal Republic of Germany
[2002] FCA 1386
•8 NOVEMBER 2002
FEDERAL COURT OF AUSTRALIA
von Arnim v Federal Republic of Germany [2002] FCA 1386
PRACTICE AND PROCEDURE – extradition – local proceeding – foreign state joined as respondent – appearance – authority of solicitor to enter appearance – implied authority
Director of Public Prosecutions Act 1983 (Cth) ss 6(1)(k), 15(1)
Extradition Act 1988 (Cth) ss 5, 11(1)(b), 55
Federal Court Rules O 9 r 6
Foreign State Immunities Act 1985 (Cth), ss 23, 24, 25
Treaty between Australia and the Federal Republic of Germany Concerning Extradition, 14 April 1987, 1990 ATS 21, (entered into force 1 August 1990), Arts 23, 24
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), Art 31Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 referred to
Gray re; Gray v Coles (1891) 65 LT (NS) 743 applied
Grofam Pty Ltd v Australian and New Zealand Banking Group Ltd (1993) 45 FCR 445 referred to
Health Insurance Commission v Freeman (1998) 88 FCR 544 referred to
Hempel and Etheredge v Moore (1987) 13 FCR 480 referred to
Neptune, The [1918] P 17 applied
Porter v Fraser (1912) 29 TLR 91 applied
Yonge v Toynbee [1910] 1 KB 215 appliedBrownlie Principles of Public International Law, 5th ed (1998)
Cordery’s Law Relating to Solicitors, 8th ed (1988); 10th ed (2002)
Moore on Extradition, (1891), vol 1
Opheimer’s International Law, 9th ed (1992), vol 1DR URLICH CHRISTOPH EBERHARD FREIHERR VON ARNIM v FEDERAL REPUBLIC OF GERMANY, THE HONOURABLE CHRISTOPHER MARTIN ELLISON (as the Commonwealth Minister for Justice and Customs), COMMONWEALTH OF AUSTRALIA and GROUP 4 CORRECTION SERVICES PTY LTD (ACN 050 069 255)
V 316 of 2001
FINKELSTEIN J
8 NOVEMBER 2002
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 316 of 2001
BETWEEN:
DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM
ApplicantAND:
FEDERAL REPUBLIC OF GERMANY,THE HONOURABLE CHRISTOPHER MARTIN ELLISON (as the Commonwealth Minister for Justice and Customs), COMMONWEALTH OF AUSTRALIA and GROUP 4 CORRECTION SERVICES PTY LTD (ACN 050 069 255)
RespondentsJUDGE:
FINKELSTEIN J
DATE OF ORDER:
8 NOVEMBER 2002
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The conditional appearance filed by the Director of Public Prosecutions on behalf of the First Respondent be set aside.
2.The Third Respondent pay the Applicant’s costs of the motion on notice filed on 27 May 2002 and any costs thrown away by reason of this order, such costs to be taxed in default of agreement.
3.The Third Respondent pay the First Respondent’s costs of the motion, such costs to be taxed on an indemnity basis.
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
V 316 of 2001
BETWEEN:
DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM
ApplicantAND:
FEDERAL REPUBLIC OF GERMANY, THE HONOURABLE CHRISTOPHER MARTIN ELLISON (as the Commonwealth Minister for Justice and Customs), COMMONWEALTH OF AUSTRALIA and GROUP 4 CORRECTION SERVICES PTY LTD (ACN 050 069 255)
Respondents
JUDGE:
FINKELSTEIN J
DATE:
8 NOVEMBER 2002
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This action is the latest, and subject to appeal probably the last, in a series of actions that have arisen following the request by the Federal Republic of Germany that the applicant, Dr Von Arnim, be detained and surrendered to Germany to be tried for offences of dishonesty. Dr Von Arnim was remanded into custody and in due course a magistrate determined that he was eligible for extradition under the Extradition Act 1988 (Cth). The magistrate signed a warrant committing Dr Von Arnim to the Melbourne Assessment Prison to await surrender. Dr Von Arnim brought a number of proceedings seeking to overturn the magistrate’s decision and secure his release from detention. These proceedings were unsuccessful, as were the many appeals. The present action began as yet another attempt by Dr Von Arnim to be set free.
The original statement of claim, a confusing document, raised a number of causes of action, some based on private rights and others founded in public law. Dr von Arnim alleged that Germany, one of the respondents, owed him a duty to ensure that (1) the warrant related to an offence against the laws of Germany; (2) Germany provided accurate information to the Commonwealth in support of its request for extradition; (3) Dr von Arnim was an extraditable person under the provisions of the Extradition Act; and (4) Germany kept the Commonwealth fully and accurately informed as to any matter that might render the request for extradition invalid. The duty was said to have been breached. He also alleged that Germany acted in breach of the speciality rule provided for in article 18(1) of the Extradition Treaty between Australia and Germany which was done in Bonn on 14 April 1987 and entered into force on 1 August 1990, so that Germany was not able to give the speciality assurance required to empower the Minister to make a determination that he be surrendered under s 22 of the Extradition Act. Another allegation was that Germany caused him to be wrongfully imprisoned. Finally, Dr von Arnim made a claim in negligence, the details of which need not be mentioned save to indicate that it also gave rise to a claim in damages.
After the commencement of the action Germany withdrew its request for Dr Von Arnim’s extradition and in due course he was released from custody. That did not, however, bring the proceeding to an end. With leave, Dr Von Arnim delivered an amended statement of claim by which he introduced additional causes of action. One is a claim under the German Penalty Pursuit Compensation Law (the source of this law is not set out) that Germany is liable to pay him compensation for loss and damage suffered as a result of the (now aborted) extradition request. Another is that Germany was under a duty (alleged to have been breached) to ensure that, during his imprisonment, Dr von Arnim was accorded prisoners’ rights under international law, was not detained or imprisoned in the company of convicted criminals, was not physically or mentally harmed and that the interests of his family were not adversely affected by the circumstances of his detention.
I now come to the problem at hand. Although the papers were not properly served on Germany (as to the service of process on a foreign state see the Foreign State Immunities Act 1985 (Cth), ss 23-25) the Director of Public Prosecutions entered a conditional appearance on its behalf. Under the Federal Court Rules (O 9 r 6) a conditional appearance operates as an unconditional appearance unless the court otherwise orders or, on an application made by the appearing party, the originating process or service of the originating process is set aside. There was no contrary order made. Nor was there an application to set aside the originating process or the service of the process. So the appearance became unconditional. Thereafter the Director retained counsel who appeared on Germany’s behalf at a number of interlocutory hearings. It therefore seemed that Germany had waived its sovereign immunity and submitted itself to the jurisdiction of the Court, a jurisdiction which the Court would not otherwise have. But Germany disputes this. It contends that the Court lacks jurisdiction because the Director acted without authority when he filed the conditional appearance. Accordingly it moves to have the appearance set aside.
It is accepted that if Germany did not authorise the Director to enter an appearance on its behalf the appearance should be vacated. The cases are to this effect. See for example Re Gray; Gray v Coles (1891) 65 LT (NS) 743; Yonge v Toynbee [1910] 1 KB 215; Porter v Fraser (1912) 29 TLR 91; The Neptune [1918] P 17. The question for me to decide is whether the Director lacked authority as alleged.
It is convenient to begin this task by describing how the Director came to enter the conditional appearance. The Attorney-General’s Department has an Extradition Unit which is staffed by lawyers. The unit provides legal assistance to foreign states that make extradition requests. According to Mr Cockayne, a Senior Legal Officer, the assistance includes “bringing and progressing administrative and judicial proceedings which will advance the extradition request, and where appropriate defending those which may defeat or delay an extradition request.” Mr Cockayne explained that, commonly, this assistance is provided without reference to the requesting state. By this he meant that, if necessary, an action may be begun or defended in the name of the requesting state without specific instructions. He also said that the requesting state is not always informed of every step taken “to protect that state’s extradition interests”.
Dr Von Arnim’s proceeding came to the attention of the Extradition Unit. Mr Monzo, Mr Cockayne’s predecessor, decided that “since the application primarily challenged the extradition proceedings [he would arrange] in accordance with usual practice, for the Commonwealth Director of Public Prosecutions to represent Germany in the case”. Acting on the instruction of Mr Monzo, the Director entered the conditional appearance. He did so without any reference to Germany. This was in accordance with the Director’s “usual practice”. One of the Senior Assistant Directors told me that “[t]he usual practice in extradition cases was for the [Director] to represent the foreign state in court proceedings under the [Extradition] Act. It is also part of the usual practice that the [Director] will represent the foreign state in any collateral proceedings which are brought in Australia which may have the effect of preventing or delaying extradition.”
A number of witnesses from the Attorney-General’s Department and the Director’s Office were called to give evidence. None of them could explain how the “usual practice” to which they referred had come about. Mr Cockayne went so far as to assert that “ ‘the usual practice’ is not written down and is not the subject of any agreement or written communication with any foreign states.”
This extraordinary situation was cleared up during the course of the hearing. Under the Extradition Act, Australia will extradite fugitives to an “extradition country”, being a country so declared by regulation: see the definition in s 5. Speaking generally an “extradition country” is one which has an extradition treaty with Australia, although ss 11(1)(b) and 55 allow the Extradition Act to be extended to a country with which there is no treaty. As I have mentioned, there is an extradition treaty between Australia and Germany. The treaty has an article relevant to the point at issue, being Art 23, which provides:
“Expenses arising from the transportation of a person claimed to the Requesting State shall be borne by that State. No other pecuniary claim arising from an extradition or a transit request shall be made by the Requested State against the Requesting State. The appropriate legal officers of the State in which the extradition proceedings take place shall, by all legal means within their power, assist the Requesting State before the competent judges and officers.”
An article to this, or a similar, effect is commonly found in extradition treaties to which Australia is a party.
There is a dispute about the meaning of Art 23. Germany said that the generality of the third sentence may be cut down by the first two. I will resolve this dispute by reference to the applicable principle of customary international law regarding the interpretation of treaties (as to which see Opheimer’s International Law, 9th ed (1992), vol 1, 1271; Brownlie Principles of Public International Law, 5th ed (1998), 632) which are restated in Art 31 of the Vienna Convention. That article provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. With this rule in mind I think that the meaning of Art 23 of the Extradition Treaty is clear. It is concerned with two topics – the expense of extradition and the provision of legal assistance in extradition proceedings. The very subject matter of the topics indicates that they are substantially unrelated. The expense of extradition does not usually include legal costs. The obligation to provide legal assistance in relation to extradition proceedings may carry with it the duty to do so at Australia’s expense, but this is not the usual position (as to which see Moore on Extradition, (1891), vol 1, § 394). Each topic could easily have been located in a separate article.
It now seems clear that the “usual practice” which has been spoken about is based on two things. The first is provisions found in extradition treaties to the effect of Art 23. The second is the Director of Public Prosecutions Act 1983 (Cth). Section 6(1)(k) of that Act provides that one of the Director’s functions is “to appear in proceedings under the Extradition Act 1988”. Reference should also be made to s 15(1) which relevantly provides that in proceedings under the Extradition Act the Director may appear in person or may be represented by a member of staff who is a legal practitioner, by a lawyer, or by a prescribed person.
The fact that the Director is given power to appear in a proceeding under the Extradition Act does not, of itself, authorize him to appear on behalf of a requesting state when the requesting state is a party to the proceeding. But a provision such as Art 23 may confer that authority: Hempel and Etheredge v Moore (1987) 13 FCR 480, 483. So, the true issue in this case is whether Art 23 authorized the Director to enter the appearance.
I do not think that Art 23 goes that far. It may be accepted that the obligation assumed by Australia may require it to authorise a solicitor to act on Germany’s behalf in legal proceedings and for that purpose to enter an appearance. But that obligation will not attach to every proceeding to which Germany is a party. Article 23 is concerned only with “extradition proceedings”. The treaty does not define an “extradition proceeding”, but Art 24 gives some indication of what is meant. That article provides that “proceedings with regard to provisional arrest, extradition and transit shall be governed solely by the law of [Australia].” It seems to me that Art 24 proceedings are “extradition proceedings” for the purposes of Art 23, as are any proceedings contemplated by the Extradition Act itself, such as applications for bail under s 15 and the determination of eligibility for surrender under s 19. Neither an action for damages in tort nor for breach of statutory duty, such as are here sought to be maintained, is a proceeding covered by Art 23. First, such claims are, in a sense, unrelated to the extradition of a fugitive although they may arise from the fact that the fugitive has been detained pending extradition. Second, one would require very clear language to conclude that in such proceedings Australia had been granted authority to waive sovereign immunity on Germany’s behalf and the article does not use such language. If claims in tort and breach of statutory duty are not covered by Art 23 neither are actions in which a tortious claim or one for breach of statutory duty is pleaded along with other claims that might fall within the expression an “extradition proceeding”.
Recognising the possibility that Art 23 may not confer express authority to enter an appearance, Dr von Arnim contended that the evidence established an implicit authority. His argument was that officers in the German Embassy in Canberra knew, or ought to have known, of the existence of the proceeding and of the fact that the Director had entered an appearance on Germany’s behalf, and by allowing that situation to continue the Director’s unauthorized act was ratified. This point can quickly be dismissed. First, the premise upon which the argument is based has not been made out. At relevant times the Embassy staff did not understand that Germany had been made a party to an action in which damages were sought against it. Nor was it appreciated that the Director had entered an appearance on Germany’s behalf. Second, as a general proposition I believe that only an organ or agency of the central government of a country can bind the government in a situation such as this. In the absence of more detailed information about the relations between the German Embassy and the German government, I am not willing to assume that the Ambassador or his staff had the capacity to waive Germany’s immunity without instructions from the Chancellor’s Office, or perhaps from a government department such as the Foreign Ministry or the Ministry of Justice.
For completeness, reference should be made to one argument raised but, in the end, not pressed by Germany. It said that an examination of the Director of Public Prosecutions Act showed that the Director did not have power to act on Germany’s behalf in this proceeding and hence, so the argument went, the conditional appearance was a nullity. On the question of the Director’s powers, reference should be made to Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588, Grofam Pty Ltd v Australian and New Zealand Banking Group Ltd (1993) 45 FCR 445 and Health Insurance Commission v Freeman (1998) 88 FCR 544. Assuming, for the purposes of the argument, that the Director lacked power as alleged, it does not follow that the appearance is of no effect. The true position is that the appearance would be defective only if Germany knew of the Director’s lack of power. In successive editions of Cordery’s Law Relating to Solicitors that has been the view taken in relation to the validity of actions by unqualified persons acting as solicitors. In earlier editions (for example the eight edition published in 1988) cases were cited to support this position. The cases include Welch v Pribble (1822) 1 Dow & R KB 215, Smith v Wilson (1833) 1 Dowl 545, Hilleary v Hungate (1834) 3 Dowl 56, Bayley v Thompson (1834) 2 Cr & M 673; Glynn v Hutchinson (1835) 3 Dowl 529 and Sparling v Brereton (1866) LR 2 Eq 64. I have looked at the cases and while they are not directly in point they provide the text with some support. Interestingly, however, in the most recent edition of Cordery (the tenth published in 2002) the statement of principle is repeated but there is no reference to cases.
The only outstanding question is that of costs. Dr von Arnim asks for his costs of the application and of those costs thrown away and he is entitled to have them. Germany is also entitled to its costs. The more difficult question is whether the costs should be paid on an indemnity basis. The cases do not provide much assistance on this issue. The practice, if the cases are sufficient in number to establish a practice, seems to be that the “client” should have indemnity costs but the costs of the plaintiff are to be taxed at the usual rate. I propose to follow that course. But the order for costs will go against the Commonwealth and not the Director who was merely acting on the Commonwealth’s instruction.
I will order that the conditional appearance filed by the Director on behalf of Germany be set aside. Dr Von Arnim will have his costs of the application and the costs thrown away by reason of the order. Germany will have its costs of the application, taxed on an indemnity basis.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate:
Dated: 8 November 2002
Counsel for the Applicant: B Monotti Solicitor for the Applicant: Katherine Moorhouse-Perks Counsel for the First Respondent: I G Waller Solicitor for the First Respondent: Clayton Utz Counsel for the Second and Third Respondents: L W Maher Solicitor for the Second and Third Respondents: Australian Government Solicitor Counsel for the Commonwealth Director of Public Prosecutions: D J Lane Solicitor for the Commonwealth Director of Public Prosecutions: Office of the Director of Public Prosecutions Date of Hearing: 11 July 2002; 13 September 2002 Date of Judgment: 8 November 2002
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