Republic of Croatia v Snedden [2010] HCATrans 36 (23 February 2010)

Last Updated: 24 February 2010

[2010] HCATrans 036

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S253 of 2009

B e t w e e n -

REPUBLIC OF CROATIA

Applicant

and

DANIEL SNEDDEN

Respondent

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 FEBRUARY 2009, AT 9.44 AM

Copyright in the High Court of Australia

MR R.P.L. LANCASTER, SC: May it please the Court, I appear with MS H. YOUNAN for the applicant. (instructed by Director of Public Prosecutions – Sydney)

MR K.P. SMARK, SC: Your Honour, I appear for Mr Snedden, who I think is the defendant, although the respondent to the interim relief. I am just not sure of his designation. (instructed by Schreuder Partners Lawyers)

HIS HONOUR: He will be the respondent in the appeal.

MR SMARK: Yes, he will certainly be the respondent in the appeal.

HIS HONOUR: That is right. Yes, Mr Smark.

MR SMARK: I have been talking to my learned friend. Subject to - - -

HIS HONOUR: It is set down for hearing. I am not sure - - -

MR SMARK: It is, towards the end of March.

HIS HONOUR: That is right.

MR SMARK: Mr Snedden consents to the continuation of the orders made last Friday by the Chief Justice and we would ask if the Court has the capacity to further hear what remains in contest some time later this week. The Court may not have that capacity. That relates to the reporting order sought by the Republic of Croatia.

HIS HONOUR: Let me just have a look.

MR SMARK: I think Mr Lancaster might assist your Honour by handing up a form of summons to be relied on, if that is of assistance.

HIS HONOUR: Just a moment. Now, which particular order are we looking to?

MR SMARK: I think it will be an order that is in the - - -

HIS HONOUR: No, I mean of the orders made by the Chief Justice.

MR SMARK: The first order to the extent that it imposes an ongoing obligation. It is really an obligation that will be discharged once and for all, one would think, because it is to deliver up relevantly his passport issued by the Republic of Yugoslavia, which he will do.

HIS HONOUR: I see.

MR SMARK: I just do not think that has actually happened yet.

HIS HONOUR: I see.

MR SMARK: There is an ongoing obligation to which he consents to remain within Australia. He will not be seeking to challenge that at the further hearing of this matter.

HIS HONOUR: Right. So there may be some need to revise order 1. Is that what it comes to?

MR SMARK: Yes, in due course. It is, so it would seem to us, in an adequate form pro tem.

HIS HONOUR: All right. Thank you. That is very helpful. Yes, Mr Lancaster.

MR LANCASTER: Your Honour, it was flagged on Friday that the applicant would seek additional orders to those made ex parte. Among the evidence was a form of draft summons which included residential requirement and reporting requirement imposed upon the respondent. We did not see it as appropriate to seek that relief ex parte last Friday, but flagged it in the evidence and I would seek your Honour’s leave to file a summons with those additional orders which will create the remaining contest for determination at your Honour’s convenience.

HIS HONOUR: Well, the matter is to be heard in a month.

MR LANCASTER: Yes. My application - - -

HIS HONOUR: This gentleman is going to surrender his passport.

MR LANCASTER: Yes, and the applicant - - -

HIS HONOUR: He is enjoined from approaching any international terminal. Now, in a practical sense, what more do you want?

MR LANCASTER: I am instructed to apply for an order that he reside at his existing residential address and that he report to a local police station each day.

HIS HONOUR: Each day?

MR LANCASTER: Yes.

HIS HONOUR: I see. Where is your client at present living? Can you tell us that?

MR SMARK: No, I cannot immediately tell your Honour. I was briefed last night.

HIS HONOUR: I see.

MR SMARK: Instructions have been received by my instructing solicitors from him. He may very well be presently at the address nominated in the summons handed up.

HIS HONOUR: Yes.

MR SMARK: We oppose the reporting requirement and so far as the matter of the approaching international terminals is concerned, we are content to abide by that pro tem but the applicant, while having no intention to leave Australia pending the determination of this matter – and I do not just mean the hearing, the determination of this matter – does have the intention of using Perth International Airport, which is the Perth Airport because he has family in Perth. His mother is 80 and he proposes to go there but he will notify the Australian Federal Police before doing so and provide an itinerary.

Now, we are content to, in the next few days, put forward undertakings which can be turned into orders to that effect, but we strenuously oppose the reporting requirements and the requirements that he stay at a particular place. I am not in a position to develop that fully, your Honour.

HIS HONOUR: Yes, I understand that. The orders that were made on 19 February continue until further order so the question is fixing a date for what seems to be some spiralling dispute.

MR SMARK: Yes.

HIS HONOUR: Engendered by this rather late activity on the part of your client, Mr Lancaster, if I may say so.

MR LANCASTER: I accept that, your Honour.

HIS HONOUR: Why were these matters not agitated when there was a grant of special leave?

MR LANCASTER: I am not in a position to provide an explanation to your Honour for that.

HIS HONOUR: Yes. Well, it is unsatisfactory. I realise you were not appearing on the special leave application.

MR LANCASTER: Would your Honour be assisted if I handed up the form of summons upon which we intend to move?

HIS HONOUR: Yes.

MR LANCASTER: It does repeat in its first few subparagraphs the orders made on Friday. The relevant additional orders are over the page in (e) and (f).

HIS HONOUR: Twice daily this says. Who devised this form of order?

MR LANCASTER: Your Honour, it was seen as an appropriate order to - - -

HIS HONOUR: Twice daily.

MR LANCASTER: Your Honour, between now and Friday I will seek some instructions to see if we can refine the dispute.

HIS HONOUR: I think so. As senior counsel you have to start intruding yourself into the deliberations that are involved in this. Anyhow, the summons can be filed in due course.

MR LANCASTER: Thank you, your Honour.

HIS HONOUR: All right. We will take in what you have handed up as a draft. How are you placed later in the week, Mr Smark?

MR SMARK: Thursday or Friday would be fine. I just cannot do tomorrow.

HIS HONOUR: There might be some cooler thinking between now and Friday. The summons foreshadowed by counsel for the Republic of Croatia can be filed and made returnable before me at 9.30 on Friday, 26 February. Is that convenient to you, Mr Lancaster?

MR LANCASTER: Yes, thank you, your Honour.

HIS HONOUR: As I have already indicated, the orders made by the Chief Justice on 19 February continue until further order. I think there should be some sensible conversation between you and Mr Lancaster in the meantime.

MR SMARK: Yes, your Honour.

AT 9.52 AM THE MATTER WAS ADJOURNED