Commissioner of Police v Hahn

[2021] NZHC 1870

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2021-425-44

[2021] NZHC 1870

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

TIMO HAHN

Respondent

Appearances:	R W Donnelly for Applicant (No appearance for Respondent)
Judgment:	23 July 2021
(Determined on the papers)

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 23 July 2021 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

COMMISSIONER OF POLICE v HAHN [2021] NZHC 1870 [23 July 2021]

[1]                   The Commissioner of Police has applied for an Asset Forfeiture Order under the Criminal Proceeds (Recovery) Act 2009.

Application to dispense with service

[2]                 The Commissioner now applies for orders dispensing with the requirement to serve the proceeding upon the respondent and permitting the Commissioner to proceed as if service had been effected.

[3]                 The application is made on the grounds that reasonable efforts have been made to effect service on the respondent and that the documents have come to his attention.

[4]                 The application is supported by an affidavit of Detective Christopher Maitland, attached to the Financial Crime Group, New Zealand Police, Southern Asset Recovery Unit.

[5]                 Detective Maitland deposes that the respondent is a German national who has visited New Zealand several times, residing in Queenstown, but was subsequently in November 2020 deported to Germany.

[6]                 Detective Maitland refers to attempts to communicate with the respondent by email and to thereby provide him with copies of the proceedings. Since the proceeding was issued he has also endeavoured to email the respondent as to the change of date for the first call of the proceeding.

[7]                 Detective Maitland has had no communication back from the respondent but has received confirmation that the delivery of the material emails was complete.

[8]                 In June 2021, counsel for the Commissioner received an email from an Invercargill solicitor, Roger Eagles. Mr Eagles stated that he had received a request from the respondent to represent him in this proceeding. Mr Eagles was uncertain whether he would be able to act for the respondent, and had only an email address for contact. Mr Eagles has not subsequently indicated an ability to act in the matter.

[9]                 Detective Maitland has accordingly now sent to the respondent at the email addresses he has the further documents filed in this proceeding and a Minute issued by the Court. There has again been no response to those emails although delivery was recorded as complete.

[10]              Detective Maitland refers to his attempt to otherwise locate the whereabouts of the respondent and I am satisfied that reasonable efforts have not identified further contact details. I am nonetheless satisfied, from the email records, that the respondent will have seen the documents emailed to him.

The service regime

[11]              Under Regulation 12, Criminal Proceeds (Recovery) Act 2009, the Court may dispense with service of the application in this proceeding if satisfied that reasonable efforts have been made to effect service of documents under the Act by permitted modes and either that the document has come to the knowledge of the respondent or that prompt personal service cannot be effected. Regulation 12(2) permits the Court to make the orders which I will be making.

[12]I am so satisfied.

Orders

[13]I order:

(a)service upon the respondent of the documents filed in this proceeding is dispensed with;

(b)the applicant has leave to proceed as if service of the documents had been effected on the respondent;

(c)a copy of this order is to be sent by email to the respondent at the email addresses known to the applicant and at the same time by email to Roger Eagles;

(d)the substantive application is now to be dealt with on the papers by way of formal proof;

(e)the costs of the interlocutory application are reserved; and

(f)the telephone conference scheduled for 26 July 2021 is vacated.

Osborne J

Solicitors:
Crown Solicitor, Invercargill

Copy to:
Timo Hahn