von Arnim v Federal Republic of Germany

[1999] FCA 871

FEDERAL COURT OF AUSTRALIA

von Arnim v Federal Republic of Germany [1999] FCA 871

INJUNCTIONS – application for injunctive relief.

Judiciary Act 1903 (Cth): s 39B, s 40
Federal Court of Australia Act 1976 (Cth): s 21, s 23
Extradition Act 1988 (Cth): s 22(5)

DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM, MD v FEDERAL REPUBLIC OF GERMANY & ANOR
V 231 of 1999

GOLDBERG J
12 MAY 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 231 of 1999

BETWEEN:

DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM, MD
Applicant

AND:

FEDERAL REPUBLIC OF GERMANY
First Respondent

MR McLENNAN SM,
MAGISTRATES’ COURT, MELBOURNE
Second Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

12 MAY 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application for injunctive relief dated 11 May 1999 be dismissed.

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 231 of 1999

BETWEEN:

DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM, MD
Applicant

AND:

FEDERAL REPUBLIC OF GERMANY
First Respondent

MR McLENNAN SM,
MAGISTRATES’ COURT, MELBOURNE
Second Respondent

JUDGE:	GOLDBERG J
DATE:	12 MAY 1999
PLACE:	MELBOURNE

EXTEMPORE REASONS FOR JUDGMENT

HIS HONOUR:

1. The applicant has filed an application dated 11 May 1999 headed “Urgent Application for Injunctive Relief”, in which he seeks relief pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 21 and s 23 of the Federal Court of Australia Act 1976 (Cth) in relation to a decision of Mr McLennan, Magistrate (“the Magistrate”), sitting in the Magistrates’ Court of Melbourne. The Magistrate made an order under the Extradition Act 1988 (Cth) on 10 May 1999 and signed a warrant that the applicant be committed to the Melbourne Assessment Prison to await, in relation to the offences set out in the warrant, surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s 22(5) of the Extradition Act.

2. The applicant is aggrieved by the Magistrate’s decision as set out in his application, because he says it denies him natural justice and, in the words of the application, “kills the Applicant’s constitutional challenge and removal application pursuant to section 40(1) of the Judiciary Act”. As I understand the matter, the applicant had filed an application on 4 May 1999 pursuant to s 40 of the Judiciary Act seeking to remove the matter that was before the Magistrates’ Court into the High Court on the basis that it involved a cause arising under The Constitution or concerning its interpretation.

3. The applicant is concerned that because of the decision made by the Magistrate on 10 May 1999, there is now nothing pending before the Melbourne Magistrates’ Court that is capable of being removed from the Magistrates’ Court into the High Court.  What the applicant seeks to do is in effect to seek what he described as a temporary reopening or setting aside of the decision of the Magistrate, so that if the matter comes before the High Court on 17 May 1999 or during that week, it can then be said that there is a matter pending which is capable of being removed.  If nothing further is done, the applicant says that then there is nothing further to remove and he is denied his right of access to the High Court.

4. The applicant contends that I have jurisdiction under s 39B of the Judiciary Act and s 21 and s 23 of the Federal Court of Australia Act. It is not immediately clear to me that I have that jurisdiction in circumstances where the Magistrates’ Court has made a decision which is a final decision so far as the Magistrates’ Court is concerned and is subject to review under s 21 of the Extradition Act.  Assuming that I have jurisdiction, that jurisdiction would involve setting aside the decision of the Magistrate and I could only do that if there was a hearing on the merits.

5. The applicant concedes that unless a final order is made by this Court setting aside the Magistrates’ Court decision by next Monday, then there is no further point in continuing with the application. The applicant says that he is prejudiced by the Magistrates’ Court decision and he is denied natural justice if he is denied the opportunity to go to the High Court by way of having the matter removed under s 40 of the Judiciary Act. However, it seems to me that at the end of the day the applicant is not denied natural justice and is not prejudiced, because he has a full right of review under s 21 of the Extradition Act and he has the option to go to either the Federal Court or the Supreme Court of Victoria and has an opportunity to go to a Full Court or Court of Appeal in the case of the Supreme Court by way of appeal and then ultimately by way of special leave to the High Court.

6. The sort of orders which the applicant seeks today are akin to the relief granted by way of prerogative writs which are always discretionary and one of the matters which one must take into account (assuming the jurisdiction exists) is whether there are alternative means open for the applicant to have redress in respect of the matters of which he complains. It seems to me that having regard to the provisions of s 21 of the Extradition Act it would not be appropriate in the particular circumstances of this case, if the jurisdiction exists, to grant the relief sought because the matters which the applicant wishes to agitate can be properly agitated on that review before whichever Court the applicant elects to appear. 

7. I was initially concerned that the applicant may have been saying that if no order was made today, within the next few days he might be removed from the jurisdiction by way of extradition.  However I have been informed by Mr Camilleri, who appears for the Commonwealth Director of Public Prosecutions, that during the 15 day period during which the applicant has the opportunity to exercise an appeal right, nothing further will be done until the expiration of that period and that if an appeal is lodged within the 15 days nothing further will be done until the appellate process takes its natural course. 

8. It seems to me that in all those circumstances this is not an appropriate case for the urgent relief which is sought this day which in effect is seeking to have the final matter dealt with which would be dealt with on appeal; that is, the setting aside of the Magistrate’s order.  I consider it inappropriate to have a temporary reopening of the Magistrates’ Court decision.  That is not an appropriate jurisdiction for this Court to exercise.  The matters should be dealt with either by way of a hearing, dealing with the matter on the merits, or by way of the appeal process. 

9. In all those circumstances it seems to me that the applicant will not be prejudiced because his appeal rights are still open to him.  The matters which he wants to agitate can still be agitated before the various courts in the hierarchy of appeal which s 21 gives to him.  In all of those circumstances I dismiss the application for injunctive relief filed on 11 May 1999. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             12 May 1999

Counsel for the Applicant:	Applicant in person
Date of Hearing:	12 May 1999
Date of Judgment:	12 May 1999