Wallbutton v The District Court of Zell Am See HC Wha CIV 2008-488-213
[2008] NZHC 2351
•28 May 2008
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV 2008-488-213
UNDER The Conflict of Laws
IN THE MATTER OF An Application in terms of Rule 5 Kakariki
Road, Ngunguru, Whangarei, Carpenter
BETWEEN PHILLIP MARTIN WALLBUTTON First Applicant
ANDKAREN SMITH Second Applicant
ANDTHE DISTRICT COURT OF ZELL AM SEE
First Respondent
ANDTHE PUBLIC PROSECUTOR OF SALZBURG
Second Respondent
Appearances: A Holgate for the Applicants
Judgment: 28 May 2008 at 3 pm
JUDGEMENT OF ASSOCIATE JUDGE ROBINSON
This judgment was delivered by me on 28 May 2008 at 3 p m pursuant to Rule 540(4) of the High Court Rules.
Registrar/Deputy Registrar
PHILLIP MARTIN WALLBUTTON AND ANOR V THE DISTRICT COURT OF ZELL AM SEE AND ANOR HC WHA CIV 2008-488-213 28 May 2008
Solicitors: Thomson Wilson, PO Box 1042, Whangarei
[1] The applicants Phillip Martin Wallbutton and Karen Smith reside in Ngunguru near Whangarei. On 23 September 2006 they were holidaying in Austria. On that date whilst driving from Mittersill in the direction of Kaprun their car collided with a pedestrian, Miss Hofstatter. Following the accident they stopped their vehicle and rendered assistance to the pedestrian. They also provided a statement of their version of the events to the local authorities. On supplying their statements, the authorities allowed Mr Wallbutton and Miss Smith to proceed on their way.
[2] In September 2006 Mr Wallbutton and Miss Smith were residing in St Albans, Great Britain. Shortly after their return to St Albans Mr Wallbutton and Miss Smith relocated to Whangarei, New Zealand.
[3] After he arrived in New Zealand, Mr Wallbutton received a notice issued by the Public Prosecutors Office at Salzburg to the following effect:
Notification according sec. 90c p. 4 Criminal Procedure Act
The Police station Mittersill brought a charge against you on 21/12/2006.
As prescribed by this charge you are under suspicion of having caused an accident in Mitttersill on 29/09/2006 as driver of the car with the car registration number VB-449 DN on the federal road B 168 going from Mittersill in the direction of Zell am See. As a result of your lack of attention and reaction the pedestrian Marianne Hofstatter was seriously insured [sic]
in this traffic accident.
Due to this fact you committed the offence of physical injury caused by culpable negligence under sec. 88 p. 1 and 4, 1st case Criminal Procedure Act.
The Public Prosecutor’s Office intends to initiate a criminal procedure against you. This will not take place if you pay an amount of
EUR 550, --
The mentioned amount has to be paid within 1 month after delivery of this notification to the account no. 5450.961 at P.S.K., sort code 60000. Inside
the EU you have the possibility to transfer the money at reasonable costs when using the international account no. IBAN AT 226 0000 0000 5450 961 (International Bank Account Number) and the international bank sort code BIC OPSKATWW (Bank Identifier Code). Shouldn’t you be able to do this due to your financial condition you can file an application for postponement of payment for at most 6 months or for granting a payment by instalments within this period. The application has to be filed with the regional Public Prosecutor at the District Court, Mozartstrabe 2, 5700 Zell am See in written form or verbally by protocol. It is recommended to attach appropriate documents.
[4] The notice was addressed to Mr Wallbutton in St Albans. According to Mr Wallbutton he did not receive the notice in time for payment of the amount claimed so as to avoid a prosecution.
[5] In December 2007 Mr Wallbutton and Miss Smith were served with summonses issued by the District Court of Zell am See requiring their attendance at the District Court of Zell am See on 4 August 2008 at 9 am. At the hearing Mr Wallbutton is to be prosecuted for an offence against article 88 par. 1, n. 1 penal code in respect of the traffic accident of 29 September 2006 in Mittersill. Miss Smith is summoned to appear as a witness at that prosecution.
[6] Counsel for the applicant has not provided evidence from an expert in the criminal law of the State of Austria. However, he has provided a translation of article
88 paragraph 1 of the Austrian Penal Code which provides for an offence for anyone who negligently injures another on the body or harms the health punishable by imprisonment of up to three months or a fine.
[7] The summonses to both Mr Wallbutton and Miss Smith were issued out of this court pursuant to r 213 High Court Rules. That rule provides as follows:
213 Service of foreign process
(1) Where—
(a) A letter of request,—
(i) Which is from a Court or tribunal of a country other than a
Commonwealth country (as defined in rule 522); and
(ii) Which requests the service on any person in New Zealand of a process or citation required in connection with any civil or commercial matter pending before that Court or tribunal,—
is transmitted to the Court by the [[chief executive of the Ministry of Justice]] with an intimation that it is desirable that effect should be given to that request; and
(b) Subclause (2) is complied with,—
rules 214 to 217 shall apply in relation to the service of that process or citation.
(2) The letter of request for service shall be accompanied— (a) By a translation thereof in the English language; and
(b) By 2 copies of the process or citation to be served; and
(c) By 2 copies of the process or citation in the English language.
(3) The transmission of a letter of request under subclause (1)(a)(ii) shall be effected by sending the letter of request, and the accompanying papers required by subclause (2), to the Registrar of the Court nearest to the place where the person to be served resides
[8] Clearly r 213 cannot apply. To qualify for the procedure set down in r 213 the process must be “in connection with any civil or commercial matter”. Clearly the prosecution against Mr Wallbutton cannot be described as a civil or commercial matter.
[9] The applicants now apply to this court for orders that the service of the summonses on them be set aside. The grounds stated in support of that application are as follows:
a) In the instance of the first applicant namely Mr Wallbutton.
i) The proceedings were served on Mr Wallbutton in terms of rr
213 to 218 of the High Court Rules.
ii)The proceedings served are a criminal proceeding and cannot be served in accordance with the High Court Rules governing civil proceedings.
iii) The proceedings served are criminal proceedings of the
Federal Republic of Austria and the New Zealand Courts will
not allow the enforcement of the criminal and penal processes of another country through the New Zealand legal system.
iv)Consequently the service of these proceedings on Mr Wallbutton was fatally irregular and only this court has the authority to set them aside.
[10] In the case of Miss Smith the grounds advanced in support of the application to set aside the summons against her are as follows: -
a) The summonses is to appear as a witness in criminal proceedings and cannot be served under the rules governing civil process.
b)In the alternative, and even if the rules did allow for a subpoena in criminal proceedings to be served under the rules governing civil proceedings, the witnesses summons is fatally irregular for failure to tender the reasonable costs and expenses of the witness to attend the proceedings; and
c) To the extent that it is germane to these proceedings the subpoena served on Miss Smith is irregular for complete failure to comply with the provisions with the Mutual Assistance and Criminal Matters Act
1992.
[11] Accompanying the application for orders setting aside the summonses is a notice of interlocutory application for directions as to service of the proceedings on the Austrian Embassy in New Zealand and the first and second respondents together with directions as to the documents to accompany the notice of application when served on the respondents.
[12] The application for directions as to service is made under r 220 High Court
Rules. That rule provides as follows:
220 When allowed with leave
(1) In any other proceeding which the Court has jurisdiction to hear and determine, any document may be served out of New Zealand by leave of the Court.
(2) An application for leave under this rule shall be made on notice to every party other than the party intended to be served.
(3) A sealed copy of every order made under this rule shall be served with the document to which it relates.
(4) Upon any application for leave under this rule, the Court, in exercising its discretion, shall have regard to—
(a) The amount or value of the property in dispute or sought to be recovered; and
(b) The existence, in the place of residence of the person to be served, of a
Court having jurisdiction in the matter in question; and
(c) The comparative cost and convenience of proceeding in New Zealand or in the place of residence of the person to be served.
(5) Every application for leave under this rule shall be supported by an affidavit—
(a) Stating the particulars referred to in subclause (4); and
(b) Showing—
(i) In what place or country the person to be served is or possibly may be found; and
(ii) Whether or not the person to be served is a New Zealand citizen.
[13] Included in the directions being sought by counsel, was a direction that the proceedings be served on the Austrian Embassy. I am satisfied that in the circumstances of this case it would be entirely inappropriate to direct service on the Austrian Embassy. Austria is a sovereign state entitled to sovereign immunity with regard to its sovereign or public acts. The prosecution by the State of Austria for negligent acts causing injuries to its citizens is clearly a sovereign or public act and cannot be described as a private act. Consequently the Austrian Government is entitled to sovereign immunity in respect of this prosecution against Mr Wallbutton and in respect of the summonses issued against Miss Smith to be a witness at that prosecution. Applying the principles set forth in Kuwait Airways Corp v Iraqi Airways Co & ors [1995] 3 ALL ER 694 I am therefore satisfied that because of the operation of the doctrine of sovereign immunity it would be completely inappropriate to direct service of these proceedings on the Austrian Embassy.
[14] In support of the submission that the courts in New Zealand have jurisdiction to set aside the summonses issued by the Austrian Courts, counsel relied on a number of authorities which were concerned with the enforcement of the penal codes of foreign countries. Those authorities including Huntington v Attrill [1893] AC 150 and Attorney General of New Zealand v Ortiz & ors [1982] 3 ALL ER 432 clearly establish that the courts in New Zealand will not entertain suit brought by a foreign sovereign directly or indirectly to enforce the penal laws of that foreign state. However, there are no proceedings by the State of Austria to enforce in New Zealand the penal laws of Austria. If, following conviction, the Austrian courts were to commence proceedings in New Zealand for orders enforcing its penalties then quite clearly the New Zealand courts would not entertain such application because the application would be to enforce in New Zealand the Austrian penal code.
[15] To justify leave authorising service of these proceedings overseas the applicants must establish in terms of r 220(1) that there are proceedings which the court has jurisdiction to hear and determine. However, where the court does have jurisdiction to hear and determine the proceedings the court must also take into account the factors referred to in r 220(4). In this respect I must take into account the existence in Austria of a court to hear the prosecution which must have jurisdiction to determine the validity of service of its processes on the applicants.
[16] In this application the burden of proof to satisfy the court that an order should be made is on the applicant, see Spilada Maritime v Cansulex Limited [1986] 3 ALL ER 843. In the circumstances of this case it is hard to see how the applicants can discharge that burden. The law that must apply to determine the validity of service of the processes on the applicants must be the law in Austria. The Austrian court is seized of the matter. The Austrian court is in a far better position to determine the validity of service of the processes on the applicants. Furthermore the Austrian court will not be bound to accept as binding any ruling of the New Zealand court relating to the validity of the service of its processes on the applicants.
[17] Consequently I am not satisfied that the New Zealand court has jurisdiction to deal with the application to determine the validity of the service of the processes on the applicants and even if the New Zealand court does have jurisdiction I am not
satisfied that the circumstances of this case justify the court in accepting jurisdiction and directing service overseas. In the circumstances therefore the application is declined. It must follow that the substantive application must also be dismissed for
lack of jurisdiction.
Associate Judge Robinson
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