Wiest, EA v Director of Public Prosecutions

[1988] FCA 568

.’ C ’

LIMITED DISTRIBUTION ONLY

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G982	of	1988
GENERAL DIVISION	1

On appeal from Davies J. of the

Federal Court of Australia. . ” I .

BETWEEN:  EUGEN ALEXANDER WIEST

Appellant

AND :  THE DIRECTOR OF

PUBLIC PROSECUTIONS

First Respondent

AND :  THE FEDERAL REPUBLIC
OF GERMANY
Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. 1148 of 1988

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GENERAL DIVISION 1 I .

On appeal from Pincus J. of the

Federal Court of Australia. :-. , .

BETWEEN:  EUGEN ALEXANDER WIEST

Appellant

AND :  THE DIRECTOR OF

PUBLIC PROSECUTIONS

First Respondent

AND :  RICHARD PETER MISZALSKI

t.

Second Respondent

CORAM: GUMMOW	J .
PLACE :	SYDNEY
DATE :	5 SEPTEMBER 1988

REASONS FOR JUDGMENT (EX TEMPORE)	I .
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HIS HONOUR: There are before the Court two applications f o r

g . .

security for costs instituted by notices of motion both filed

on 26 August 1988, in matters Nos. 982 of 1988 and 1148 of

1988. The proceedings in respect of which security is sought

are two appeals set down for hearing before the Full Court to

start on 14 September	1988.	The respondents to the appeals
are the applicants on the	motion.	The appeals arise from

litigation concerning attempts	to extradite the appellant (who
is the respondent to these motions)	to the Federal Republic of

Germany pursuant to the provisions of the Extradition (Foreign

States) Act 1966, which I shall call "the Act". A

substantially interested party in opposition to the appellant
in each proceeding would appear to be the Federal Republic of
Germany although that country is a party, as it happens, only

in matter No. G982 of 1988.

Serious questions would appear to arise on the

appeals. First, as to questions of issue estoppel and res

judicata in the area of public law, and secondly, as to the

construction of various provisions of the Act.

The first field of debate is presented by the decision

of Mr. Justice Davies in matter No. G982 of 1988 and the second

by the judgment of Mr. Justice Pincus in the other matter.

The position is that the judgment of Mr. Justice Davies is

under appeal pursuant to a Notice of AppeaL filed on 27 May

1988. The draft index for the appeal book was filed on 7 July

1988 and, as I have said, the present application for security .

z was filed on 26 August 1988.

The other judgment, that of Mr. Justice Pincus, is

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under appeal pursuant to a Notice of Appeal filed on	2 August
1988. The draft index in that matter was flled on	10 August

1988, and again the application for security was filed on 26 August 1988. The allocation of dates for hearing by the Full Court in September was foreshadowed in the course of hearing

before a Full Court of which I was a member, of a bail

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application on 3 August 1988. Shortly thereafter, the date of I.

14 September 1988, which I have mentioned, was allocated.	I
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The present applications are brought pursuant to of the Federal Court of Australia Act 1976 ("the Federal Court	S. 56

Act"). This provides in sub-s. (1) that the Court or a Judge may order a plaintiff in a proceeding in the Court or an

appellant in an appeal to the Court to give security for the

I	payment of costs that may be awarded against him.	Reference	.	1
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should also	be made to 0. 28 r. 3, which provides that where in	I '
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any proceeding it appears to the Court, inter alia, that the

applicant is ordinarily resident outside Australia, the Court

may order security for costs. The discretion conferred by S.

56 may be compared with that arising under 0. 70 of the High

Court Rules. The	High Court provisions were discussed by
Brennan J. in Lucas v Yorke (1983) 58 ALJR 20.	At 21 of the

report, his Honour adopted a passage in an earlier judgment of

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the High Court to the following effect:

.	.	The legislature, however, has left absolute discretion to the court, and has done so
without prescribing any rules for its
exercise. In these circumstances no rules can be formulated in advance by any judge as
to how the discretion shall be exercised.
It depends entirely on the circumstances of

I each particular case. The discretion must,

of course, be exercised judicially, which

i	means that in each case the Judge has to
inquire how, on the whole, justice will be
best served . . .

To like effect, are observations by the Full Court of

this Court when dealing with the construction of S . 48 of the

Federal Court Act (which concerns transfers of proceedings) in

National Mutual Holdings Pty. Ltd. v The Sentry Corporation

(Full Court, 26 July 1988, unrep.). Reference may also be

made to the judgment of Morling	J. in Barton v The Minister for
Foreign Affairs (1984)	2 FCR 463 at 470.

I turn then to the present applications and draw

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attention to a number of factors. First, the respondents to

the appeal (the applicants on the present motions) start with

judgments in their favour on two sets of issues	by two Judges	.. '
of this Court. Whilst in this field of public	law, it would

not be accurate to speak of vested rights as i may be in cases

of litigation concerning private rights (as to which see

Bethune v Porteous (1892) 18 VLR 493 at 4941, nevertheless,

this is a significant factor favouring the stance of the

applicants on the present motions.

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I ' Secondly, it appears clear enough that the appellant

is ordinarily resident outside Australia, although,	of course,
the litigation	is concerned with resistance by the appellant to

leaving this country.

Thirdly, the evidence indicates that the appellant now t.. . .

has, in Australia, only his clothing and personal effects.

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This involves an unexplained change in his personal affairs

which previously involved control with his wife of a company ..

Chincable Pty. Ltd. which company acted as trustee	of the Wiest	, ..
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Family Trust (see parar	33 of Mr. Grantls affidavit of	2 August

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1988 which was tendered in the present applications by counsel

for the respondents on the appeals).

Fourthly, there is no suggestion that if security were

ordered, the appellant would be unable to raise the necessary

funds if he had the assistance of his wife. Howeve r , in

evaluating this matter, it has to be borne in mind that the

evidence also indicates that the appellant's wife left this country in late 1987 and appears now to be residing in the Federal Republic of Germany.

Fifthly, the evidence indicates that the appellant has

substantial assets in the Federal Republic of Germany but that

these are "frozen" in the sense that they appear to	be under
the control of a receiver and thus not freely to	be available
for disposition by him to comply, for example, with	an order

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for provlsion of security In thls country. : . '

Sixthly, there is evidence as to the enforcement

procedures in the Federal Republic of Germany of	a judgment for
a liquidated sum for costs.	In this sense, the present case
is to be distinguished from that where there	is an evidentlary

gap as to foreign law, as was the situation with Aussie

Protection Inc. & Anor. v Hy-way Sunvisors (Sales) Pty. Ltd.,

an unreported decision of mine of 23 December 1987.

Reference has--been made in the evidence to S. 328 of

the Germany Code of Civil Procedure. This provides that

foreign judgments are not to be recognised, inter alia, if

there is "no guarantee of comity". The vidence also

indicates that comity in that sense will be found only if the

judgments of a German court are treated as binding in the

foreign country in question, such that the courts of the

foreign country recognise the German judgment at least

approximately to the same extent as Germany does the foreign

,'

judgment. i i

Reference was then made to a New South Wales statute,

the Foreign Judgments (Reciprocal Enforcements) Act1973 (NSW),	. ,
and to the operation of orders under sub-s. 5 (3) thereof upon judgments of certain German courts. This would appear to give force to the submission by the respondents to the appeals that
there was the requisite degree of comity for the satisfaction

' . 7.

.*	of the requlrements of S. 328 of the German Code of Civll Procedure, so far as concerned the effect to be given in the Federal Republic to an eventual order for costs in the present	:p
proceedings against the appellant should the appeals prove	i '
unsuccessful.

Seventhly, reference was made to what was described as

a set-off point. This arises from the events described in

paras. 5, 6 and 7 of Mr. Grant's affidavit of 1 September 1988.

Mr. Grant deposes that on 27 April 1988, Mr. David Armati, a

New South Wales Stipendiary Magistrate, ordered the release of

the appellant, but that new warrant was issued pursuant to S.

16 of the Act with the result that the appellant was again

arrested.

It then appears that on 30 and 31 May 1988,

proceedings against the appellant pursuant to the second notice

under para. 15 (1) (b) of the Act were heard by another

. . '

Magistrate, Mr. Niszalski. On 30 May 1988, the appellant

I applied to him to have the proceedings permanently stayed on the footing that they constituted an abuse of process in the light of the earlier proceedings heard by Mr. Armati. Mr.

Miszalski allowed the proceedings to continue on condition that	, ,
.,

the Director of Public Prosecutions, which is a party to these I J

proceedings in this Court, give an undertaking to pay to the

appellant the costs	of the earlier proceedings before Mr.
Armati.	' ,
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8.

On 30 May 1988, such an undertaking was given. The

evidence shows a figure involved on $62,227.83 and this sum has

not been paid. It is also very greatly in excess of the

estimate of the respondents' costs of the present appeals,

which has been provided by Mr. Bradley. I refer to Mr.

Bradley's affidavit sworn on 19 August	1988.	On the other
hand, as is also apparent from	paras. 18 and 19 of	Mr. Grant's

.

affidavit of	2 August 1988, the Director of Public Prosecutions
filed an application in this Court seeking review of the	..

decision by Mr. Miszalski requiring the Director of Public

Prosecutions to givesethe undertaking to pay the costs in

question. On 25 and 26 July 1988, Mr. Justice Pincus heard

that application but has not yet delivered judgment.

Accordingly, it remains the situation that the undertaking has

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been given and is in a substantial sum, albeit under the

challenge I have described in this Court.

Eighthly, it is a factor to be taken into account that

in substance, if not necessarily purely in form, the appeals have penal consequences in the sense that the outcome of the

appeals will affect the liberty or personal freedom of the

appellant.	I refer to what was said in Hood Barrs v Heriot	!
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[l8961 2 QB 375 at 376, by Lord Esher M.R.,	with which may be
compared what was later said by Scrutton L.J.	in Re Carroll
[l9311 1 KB 104 at 109. In referring to those cases,	I am, of

course, conscious that they concern Rules of Court less

generally expressed than the present S. 56 of the Federal Court

., 9.

2

Act. Nevertheless, this	is, as I have said, a factor to be
taken into account.	i.

Further, and ninthly, as I have indicated, the issues

that arise on the appeals are apparently	of substance and,
indeed, of some publlc importance. That also	is a factor to

be taken into account and I refer to the decision of the

I	Victorian Full Court in Smail	v Burton [l9751 VR 776 at
777-770.

Finally, I refer to the question of delay by the

respondents to the appeals in bringing these applications.

This is very considerable in the case of the appeal from the

decision of Hr. Justice Davies. And bearing in mind the ..

particular circumstances of the appeal from the judgment of Hr.

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Justice Pincus and	the steps indicated for an early hearing of	I. '
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those appeals, the delay is of importance also in the appeal

for Mr. Justice Pincus.

The significance of delay is, of course, self-evident

and in any event is a matter averted to in Sr ail v Burton, the

Victorian decision to which I have referred. The question is	whether there has been any satisfactory explanation for the
delay. Notwithstanding the efforts of counsel t o satisfy me of his clients' adequacy of explanation in that regard, I find there has been no satisfactory explanation for the delay.

Accordlngly, In all the circumstances, includlng

particularly those I have enumerated, I have reached the

conclusion that in each case the motion should be dismissed.

And the costs of the motions should be paid by the applicants

on the motions, that is to say the respondents to the

respective appeals.

I certify that this and the nine (9)

preceding pages are a true copy of the

Reasons f o r Judgment of his	Honour Mr.
Justice Gummow.
Associate:  Date:

Counsel and Solicitors f o r the	Mr. A.S. Martin instructed
Appellant (the Respondent on	by Messrs. Sly & Russell.
the motion)	:

L ..	: .
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Counsel and Solicitors for the Mr. A. Robertson instructed

Respondents (the Applicants	on	by the Director of Public
the motion):	Prosecutions.
Date of Hearing:	2 and 5 September 1988.

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Date of Judgment:  5 September 1988.