Von Arnim v Honourable Christopher Martin Ellison

BETWEEN: ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM

REASONS FOR JUDGMENT YOUNG J: 3 In this proceeding, the appellant, Dr von Arnim, claimed damages for false imprisonment and breach of duty. The trial judge dismissed the application and ordered that Dr von Arnim pay the costs of the second and third respondents (the respondents on appeal), including all reserved costs. Dr von Arnim now appeals against the trial judge's orders. The trial judge's decision is reported at Von Arnim v Federal Republic of Germany (No 2) [2005] FCA 662.

THE FACTUAL BACKGROUND 4 On 1 September 1994, the Local Court in Stuttgart in the Federal Republic of Germany ('Germany') issued a warrant for the arrest of Dr von Arnim ('the German warrant'). The German warrant ordered that Dr von Arnim be remanded in custody pending trial, and accused Dr von Arnim of having committed 50 offences involving fraud, attempted fraud and falsification of documents. 5 Dr von Arnim instituted court proceedings in Stuttgart to challenge the issue of the German warrant. As a result of these proceedings, the Higher Regional Court of Stuttgart on 29 December 1994 revoked one charge of falsification of a document, but otherwise confirmed that the German warrant would continue to apply in respect of the remaining 49 charges. 6 The trial judge found that, by a diplomatic note dated 20 February 1996 ('the diplomatic note'), the German Embassy made a request to the Australian Government for the extradition of Dr von Arnim. The diplomatic note submitted duplicate copies of the German warrant. Dr von Arnim challenges the authenticity of the diplomatic note; he contends that there was no sufficient evidence that the document tendered in evidence before the trial judge was in fact a diplomatic note from the German Embassy to the Commonwealth Department of Foreign Affairs and Trade. 7 On 7 December 1998, an officer of the Australian Federal Police, Detective Constable Appleby ('Appleby'), made an application on behalf of Germany for an arrest warrant under s 12(1) of the Extradition Act 1988 (Cth) ('the Act'). The application was supported by an affidavit by which Appleby deposed that Germany intends to seek the extradition of Dr von Arnim for the offences of fraud and attempted fraud referred to in the German warrant. The affidavit annexed a translated copy of the German warrant. 8 A warrant for the arrest of Dr von Arnim was issued under s 12(1) on 7 December 1998. The warrant recites that the Deputy Chief Magistrate issuing the warrant was satisfied, on the basis of Appleby's affidavit, that Dr von Arnim was an extraditable person for the purposes of the Act in relation to Germany which was an extradition country. 9 Dr von Arnim was arrested on the authority of the warrant on 21 December 1998 and remanded in custody. 10 On 8 January 1999, the then Minister for Justice and Customs of the Commonwealth of Australia, Senator Vanstone, gave a notice under s 16(1) of the Act in relation to the receipt of an extradition request from Germany ('the Notice'). In accordance with the provisions of s 16, the Notice recited that the Minister was of the opinion that Dr von Arnim was an extraditable person for the purposes of the Act, conduct equivalent to that alleged against Dr von Arnim would have constituted extradition offences in relation to Australia, and there was no extradition objection. On the basis of these opinions, the Minister stated that an extradition request from Germany, an extradition country, had been received in relation to Dr von Arnim. 11 Following the issue of the Notice, a magistrate conducted proceedings pursuant to s 19 of the Act to determine whether Dr von Arnim was eligible for surrender in relation to the extradition offences in respect of which Germany had sought his surrender. On 10 May 1999, the magistrate determined under s 19 that Dr von Arnim was eligible for surrender to Germany. As a result, Dr von Arnim was kept in prison until 11 July 2001. 12 On 11 July 2001, the German Embassy in Canberra informed the Attorney-General's Department that the German warrant against Dr von Arnim had been dismissed by the Stuttgart District Court. As a result, Dr von Arnim was released from prison the next day. The trial judge did not record the terms of the communication of 11 July 2001 from the German Embassy to the Attorney-General's Department. However, his Honour recorded in an appendix to his reasons for judgment part of the terms of a subsequent Note Verbale dated 16 August 2001 from the German Embassy to the Department of Foreign Affairs and Trade ('the Note Verbale') which stated: '… that the Regional Court of Stuttgart has ruled on 10 July 2001 to dismiss the warrant of arrest [Dr] von Arnim. … As a consequence, the Government of the Federal Republic of Germany no longer requests the Australian Government to commit Dr von Arnim for extradition. In its decision the Regional Court of Stuttgart has come to the conclusion that the principle of proportionality did not justify to extend the warrant any longer. The dismissal of warrant followed applications by both the accused and the prosecution authorities.' 13 All told, Dr von Arnim was kept in prison for two and a half years, from 21 December 1998 until 12 July 2001.

the extradition act 14 The Act applies to Germany by force of the following provisions. Section 11(1)(a) provides that the regulations under the Act may state that the Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations. Section 11(1C) provides that, for the purposes of subs (1), the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that this Act applies to the country concerned subject to that treaty. 15 Regulation 5 of the Extradition (Federal Republic of Germany) Regulations ('the Regulations') provides that the Act applies in relation to Germany subject to the Treaty between Australia and Germany concerning extradition done at Bonn on 14 April 1987 ('the Treaty'). A copy of the English text of the Treaty is set out in the Schedule to the Regulations. 16 Section 12(1) of the Act provides: 'Where: (a) an application is made, in the statutory form, on behalf of an extradition country to a magistrate for the issue of a warrant for the arrest of a person; and (b) the magistrate is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country; the magistrate shall issue a warrant, in the statutory form, for the arrest of the person.' 17 This provision must be read with the definition of 'extraditable person' in s 6, which provides: 'Where: (a) either: (i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or (ii) a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and: (A) there is an intention to impose a sentence on the person as a consequence of the conviction; or (B) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served; (b) the offence or any of the offences is an extradition offence in relation to the country; and (c) the person is believed to be outside the country; the person is, for the purposes of this Act, an extraditable person in relation to the country.' 18 It was not in dispute that the offences with which Dr von Arnim was charged were extraditable offences as defined in s 5, as the maximum penalty for the relevant offences was imprisonment for a period of not less than 12 months. Nor was it in dispute that Germany is an extradition country within the meaning of s 5 of the Act. 19 Subsections 16(1) and (2) provide: '(1) Where the Attorney‑General receives an extradition request from an extradition country in relation to a person, the Attorney‑General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received. (2) The Attorney‑General shall not give the notice: (a) unless the Attorney‑General is of the opinion: (i) that the person is an extraditable person in relation to the extradition country; and (ii) that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or (b) if the Attorney‑General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.' 20 Subsection 16(1) uses the term 'extradition request' which is defined in s 5 to mean 'a request in writing by an extradition country for the surrender of a person to the country.' 21 Relevantly, s 19 provides: '(1) Where: (a) a person is on remand under section 15; (b) the Attorney‑General has given a notice under subsection 16(1) in relation to the person; (c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and (d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings; the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country. (2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if: (a) the supporting documents in relation to the offence have been produced to the magistrate; (b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents have been produced to the magistrate; (c) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and (d) the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence. (3) In paragraph (2)(a), supporting documents, in relation to an extradition offence, means: (a) if the offence is an offence of which the person is accused - a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant; … (c) … (i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and (ii) a duly authenticated statement in writing setting out the conduct constituting the offence. … (6) Subject to subsection (5), any document that is duly authenticated is admissible in the proceedings. (7) A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if: (a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and (b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal: (i) in any case - of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or (ii) where the extradition country is a colony, territory or protectorate - of the person administering the Government of that country or of any person administering a Department of the Government of that country. (7A) Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsection 11(1), (1A) or (3). (8) Nothing in subsection (6) prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory. (9) Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall: (a) by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5); (b) inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek a review of the order under subsection 21(1); and (c) record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney‑General.'

the grounds of appeal 22 The central allegation in the proceeding is that Dr von Arnim's arrest and imprisonment were unlawful. The trial judge rejected this claim. 23 Before the trial judge, the principal argument advanced by Dr von Arnim was that Germany had not made a valid request for his extradition because the German warrant had been revoked. In particular, Dr von Arnim argued that the effect of the Higher Regional Court's decision of 29 December 1994 was that the German warrant had been revoked in its entirety, so that there was no extant warrant for his arrest in Germany at the time that warrants issued in Australia pursuant to ss 12 and 19 of the Act. The trial judge rejected this argument. This argument is not pursued on appeal. 24 The secondary argument which Dr von Arnim advanced before the trial judge was that there was no sufficient evidence that the Attorney-General of the Commonwealth had received a request for his surrender from Germany prior to the issuance of the Notice and, subsequently, a warrant under s 19 of the Act. As mentioned already, Dr von Arnim contests the authenticity of the diplomatic note. He also contended that the diplomatic note, even if it be authentic, did not comply with the formal requirements of the Treaty. The trial judge rejected these arguments. His Honour summarised his reasons in the following passage: '15. I am bound to say that the challenge to the authenticity of the request is nothing short of hopeless. I suppose the argument was in some way encouraged by the fact that the Commonwealth was unable to produce the original request until midway through the trial; it was still however a bold argument to say the least. In any event, as soon as the original was produced Dr von Arnim made no attempt to establish that it was either a forgery or written by a person who lacked the requisite authority. 16. The main attack on the validity of the request was that in order for it to be valid it should have been under seal. Apart from mere assertion, no authority was cited for this proposition. In my view it has no foundation. In the first place the only requirement as to form imposed by the Extradition Act and the Treaty is that the request be in writing. I do not understand this requirement to carry the further obligation that the request be signed or sealed. Second, according to Lord Gore Booth (ed) Satow's Guide to Diplomatic Practice (5th ed, 1979) official communications between representatives of States need not be signed. Such communications have various component parts, the last being a "la courtoisie" or a complimentary phrase: Satow's Guide at [7.11]. The concluding paragraph of the request for Dr von Arnim's extradition reads: "The Embassy of the Federal Republic of Germany avails itself of this opportunity to renew to the Department of Foreign Affairs and Trade the assurances of its highest consideration." Satow's Guide (at [7.13]) says that with this style of conclusion, "a signature is unnecessary." 17. In any event beneath the concluding paragraph appear in manuscript the letters "L.S.". There is little doubt that this is the abbreviation for "locus sigilli" - the place of the seal. According to the Director of the Administrative and Domestic Law Group in the Department of Foreign Affairs and Trade, Germany on occasion uses the letters "L.S." in diplomatic notes in place of a seal or stamp. So, if a seal were necessary for the request to be valid, the seal was probably supplied. Finally, there is the evidence of several officers from both the Attorney-General's Department and the Department of Foreign Affairs and Trade that it was appropriate and reasonable for the request in the form it was received to be treated as valid. All of these factors lead to the indisputable conclusion that Germany had made a valid request for the extradition of Dr von Arnim and that the Australian authorities were required to deal with it.' This is the sole ground of illegality argued on the appeal. 25 At trial, Dr von Arnim also challenged the validity of the Australian warrants on the ground that they would expose him to a risk of being charged with additional offences, other than the offences for which extradition is sought, contrary to the requirements of s 22 of the Act. This argument was rejected by the trial judge and is not pursued as a ground of appeal. 26 The final ground upon which Dr von Arnim challenged the lawfulness of his imprisonment was that the Attorney-General of the Commonwealth had not acted as soon as it was reasonably practicable, having regard to the circumstances, to determine whether he should be surrendered, and thereby contravened the requirements of s 22(2) of the Act. The trial judge rejected this argument. Again, the rejection of this argument is not pursued as a ground of appeal. 27 The only other live ground of appeal is that the trial judge erred by not considering and determining Dr von Arnim's contention that the respondents owed him a statutory duty and/or duty of care which they breached and in respect of which Dr von Arnim is entitled to damages. The trial judge did not directly deal with this ground, no doubt on the basis that it was unnecessary to do so in view of his rejection of Dr von Arnim's arguments that his arrest and imprisonment were unlawful.

collateral attack 28 In his reasons for judgment, the trial judge observed that each warrant appeared on its face to have been regularly issued and neither warrant had been set aside by a court of competent jurisdiction. His Honour noted that Dr von Arnim had made an application under s 21 of the Act to review the magistrate's decisions under s 19, but that application was determined adversely to him by Sundberg J: see Von Arnim v Federal Republic of Germany [1999] FCA 1159; (1999) 107 A Crim R 529. 29 The trial judge said that the case had been argued before him on two potentially false assumptions. The first was that it was open to Dr von Arnim in these proceedings to challenge collaterally the validity and perhaps the legal effect of the ss 12 and 19 warrants. His Honour said that it was by no means clear that a warrant which on its face appears to have been regularly issued can be disregarded, citing Posner v Collector for Interstate Destitute Persons (Victoria) (1946) 74 CLR 461 at 483; Hadkinson v Hadkinson [1952] P 285 at 288; and R v Oldham Justices; Ex parte Cawley[1997] QB 1 at 13. The second assumption was that if Dr von Arnim could succeed in showing that the two warrants were invalid or not lawfully issued, that would make good his claim for damages for false imprisonment. His Honour noted that there are authorities which indicate that there can be no action for false imprisonment if the imprisonment is in execution of an order which appears to have been regularly made by a judicial officer, even if the order is without jurisdiction. His Honour referred to City of London v Cox (1867) LR 2 HL 239 at 263; Ward v Murphy (1937) 38 SR (NSW) 85 at 97; and Andrew v Marris (1841) 1 QB 3 at 16. In such a case, the proper remedy may be an action for malicious prosecution or malicious abuse of legal process. 30 The trial judge did not find it necessary to resolve these issues because he dealt with the substance of the claim that the two warrants were not lawfully issued, and rejected that claim. 31 Dr von Arnim relied on Ousley v The Queen (1997) 192 CLR 69 ('Ousley') to justify his collateral attack on the warrant. In Ousley, the High Court held that the lawfulness of the issue of a warrant under s 4A of the Listening Devices Act 1969 (Vic) could be challenged collaterally in the course of a criminal trial. All of the judgments proceed on the footing that the availability of collateral review is bound up with the nature of the authority which issues the warrant. Where the decision to issue a warrant is properly characterised as an administrative act, the validity of the warrant can be challenged in collateral proceedings. 32 The decision in Ousley turned on the question whether all necessary statutory requirements for the issue of the warrant had been satisfied. The issue of the warrant was governed by ss 4A(1), (3) and (4) of the Listening Devices Act 1969 (Vic) which provided: '(1) On complaint made by a member of the police force that he or she suspects or believes - (a) that an offence has been, is about to be or is likely to be committed; and (b) that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of the offence or the identity of the offender, the use of a listening device is necessary - the Supreme Court may, if satisfied that there are reasonable grounds for that suspicion or belief, authorise, by warrant, the use of a listening device. … (3) If a warrant granted by the Supreme Court under this section authorises the installation of a listening device on any premises, the Court must, by the warrant - (a) authorise and require the retrieval of the listening device; and (b) authorise entry onto those premises for the purpose of that installation and retrieval. (4) A warrant granted by the Supreme Court under this section must specify the following matters: (a) The offence in respect of which the warrant is granted; (b) If practicable, the name of any person whose private conversation may be recorded or listened to by the use of a listening device pursuant to the warrant; (c) The period (being a period not exceeding 21 days) during which the warrant is in force; (d) The name of any person who may use a listening device pursuant to the warrant and the persons who may use the device on behalf of that person; (e) The premises (if any) on which a listening device is to be installed, or the place (if any) at which a listening device is to be used, pursuant to the warrant; (f) Any conditions subject to which premises may be entered, or a listening device may be used, pursuant to the warrant; (g) The time within which the person authorised to use a listening device pursuant to the warrant is required to report under section 5 to the Minister administering the Police Regulation Act 1958.' It was argued that the warrant was invalid because it recited on its face that condition (1)(a) had been satisfied, but it did not do so in respect of condition (1)(b). Toohey, McHugh and Gummow JJ held (Gaudron and Kirby JJ dissenting) that s 4A(3) and (4) stated exhaustively the matters required to be specified in a warrant for the use of a listing device. Accordingly, there was no requirement that the jurisdictional grounds relied upon in issuing the warrant be specified on the face of the warrant: see Toohey J at 81-82, 83; McHugh J at 113; and Gummow J at 128. Their Honours also held that the fact that the warrant referred on its face to only one jurisdictional condition did not give rise to the inference that the judge had failed to satisfy himself of the other condition. Gaudron J agreed that no such inference was open; both her Honour and Toohey J thought that the only available inference was that the judge issuing the warrant had followed the statutory form: see Toohey J at 82 and Gaudron J at 88. 33 Gaudron J found that the warrants were invalid on their face because they did not recite the Judge's satisfaction as to the two statutory pre-conditions. Her Honour reasoned that, notwithstanding s 4A(3) and (4), the Act should be construed as containing a requirement that the warrant must recite that the Court was satisfied as to both conditions governing the issuance of the warrant: at 91, 93-94. Under the general law, warrants issued by magistrates and inferior courts must recite the matters on which their validity depends. No such requirement exists with respect to superior courts because a presumption of regularity applies. The statute in question authorised both superior courts and lower courts to issue a warrant. Consequently, Gaudron J said that the statute should not be construed as abrogating the general law requirement that the warrant show jurisdiction on its face, given the absence of any indication of an intention to that effect: at 91. However, Gaudron J joined in the order dismissing the appeal because she would have excluded the evidence obtained under the warrants as a matter of discretion. 34 Kirby J dissented, both in holding that the warrants were invalid on their face and in holding that the evidence should be excluded. In his Honour's view, it may have been unnecessary for the warrant to refer to condition (1)(a) on its face but, having done so, the omission of any reference to the satisfaction of condition (1)(b) meant that the warrant was defective on its face: at 157. 35 Somewhat differing views were expressed by the members of the Court in Ousley as to the proper scope of a collateral challenge to the validity of a warrant. Toohey J said that, while there is no bar to collateral review by a trial judge of the validity of a warrant on its face, it is not open to the judge to adjudicate on the sufficiency of a warrant or whether the issuing authority was in fact satisfied as to any statutory requirements: at 80. Gaudron J said that validity depends upon the warrant having been regularly issued, not on the sufficiency of the material supporting the application for its issue: at 87. Gummow J agreed that a warrant was open to collateral review, but his Honour noted that a warrant would be presumed valid until it be set aside or corrected on appeal or by other due process of law: at 131. He referred approvingly (at 131) to the statement by Mason CJ and Toohey J in Murphy v The Queen (1989) 167 CLR 94 at 105-106 ('Murphy') that the presumption of validity could not be displaced by a collateral attack upon the warrant that was founded on an alleged insufficiency of the materials placed before the issuing court by the applicant for the warrant. 36 At first blush, McHugh J seems to go somewhat further in the following passage: 'Since this Court's decision in Coco, however, a collateral challenge to a warrant cannot be confined to defects appearing on the face of the warrant. In Coco, the Court held that the Supreme Court Judge, acting as persona designata, who had made an order authorising the installation of a listening device, had "misconstrued the statute which gave him jurisdiction, addressed an irrelevant consideration and exceeded his jurisdiction". It is true that the Court said that the "error might also be characterised as an error on the face of the record" and that the Crown accepted that the existence of the warrant "did not preclude an attack on its validity in these proceedings in order to determine whether the evidence obtained by use of the listening device was admissible against the appellant." But the important point for present purposes is that this Court quashed the conviction of the appellant and accepted implicitly that the trial judge had jurisdiction to determine whether the issue of a warrant was void by reason of jurisdictional errors that lay behind its issue.' 37 The Respondents relied heavily on this passage as supporting a wide view of the availability of collateral review. However, the passage must be read in context. The concluding words make it clear that his Honour was directing his remarks at jurisdictional errors. In Coco v The Queen (1994) 179 CLR 427 ('Coco'), the court decided that s 43 of the Invasion of Privacy Act 1971 (Qld) did not confer power on a judge to authorise entry on to premises for the purpose of installing and maintaining a listening device in circumstances where that entry would otherwise have constituted a trespass. In reliance on s 43, a judge of the Supreme Court of Queensland had approved the use of a listening device in terms which purported to authorise any police officer engaged in the investigation of the offence to enter upon specified premises for the purpose of installing and maintaining a listening device. The court held that the approval was wholly void because it exceeded the power conferred by s 43: see Mason CJ, Brennan, Gaudron and McHugh JJ at 438-439, 441 and 443; Deane and Dawson JJ at 447-448; and Toohey J at 456, 457-458 and 463. Jurisdictional error was revealed in Coco by comparing the terms of the statute, which did not authorise entry on to premises, with the terms of the approval which purported to do so. Moreover, there is nothing in any of the judgments in Coco to suggest that the court was intending to depart from Murphy and McArthur v Williams (1936) 55 CLR 324 ('McArthur'). Those cases held that the validity of a warrant is not open to collateral attack merely on the ground that the material laid before the authority was insufficient to satisfy it of the matters prescribed by the statute: see Murphy, per Mason CJ and Toohey J at 105-106; and McArthur, per Dixon, Evatt and McTiernan JJ at 365-366. 38 It is also significant that McHugh J went on to refer, with apparent approval, to Murphy and McArthur as authorities for the proposition that insufficiency of evidence is not itself a ground for collateral challenge: at 103. McHugh J also considered that a presumption of regularity applied to the issue of warrants by superior courts even when the issue of the warrant is characterised as an administrative act: at 109. 39 Kirby J said that a jurisdictional error which appeared on the face of the record could be the subject of collateral review: at 145-146. His Honour went on to identify various issues concerning the scope of permissible collateral review, and said those issues did not need to be resolved for the purposes of the case before him: at 147-148, 151. They included the questions whether a warrant of the Supreme Court, in order to be valid, must disclose its jurisdiction on its face; whether the judges who issued the warrants were not, as a matter of fact, satisfied of the condition in s 4A(1)(b); and whether a presumption of regularity is available to sustain warrants issued by the Supreme Court. In the course of discussing these issues, Kirby J said: 'This argument, addressed to the subjective satisfaction of two of the judges of the Supreme Court, runs into various difficulties. It would seem inappropriate for a court to receive evidence from a person such as a Supreme Court judge (even acting administratively) that he or she did reach the requisite satisfaction. The task of the Court being the examination of the warrant on the material appearing on its face, the actual state of subjective satisfaction of the signatory appears to be of dubious relevance. Be that as it may, the issue can be ignored in this appeal because the appeal may be resolved on the appellant's primary argument concerning validity of the warrants on the face of the documents. An inquiry into what the judicial signatories actually took into account, assuming that to be permissible, can safely be left aside.' Kirby J doubted that there was any role for a presumption of legality: at 152. 40 In summary, all of the judgments in Ousley make it clear that a warrant can be challenged in collateral proceedings where the issue of the warrant did not comply with the statutory conditions governing its issue, and hence involved a jurisdictional error. I also consider that all of the judgments, including that of McHugh J, confirm that a collateral challenge cannot be mounted by attacking the character or sufficiency of the evidence that was placed before the court or officer who issued the warrant. 41 Ousley has been followed and applied in numerous cases: see, eg, R v Nicholas [2000] 1 VR 356 at [78] and [88]-[94]; P v Australian Crime Commission [2005] FCA 55 at [15] and [18]; R v Tracey & Others (No 3) [2005] SASC 357; and R v Gassy (No.3) [2005] SASC 496. They afford illustrations of the proposition that a warrant can be reviewed to determine whether, on the face of the record, it complied with the statutory preconditions for its issue. 42 Dr von Arnim also relied upon the general principle of administrative law that a decision involving jurisdictional error is a decision that lacks legal foundation and is properly regarded in law as no decision at all: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615, at [51]. The focus on jurisdictional error is appropriate, but in other respects Dr von Arnim cannot rely on this principle to side-step the specialised rules that govern the collateral review of search warrants and similar orders. 43 In this case, the magistrates who issued the warrants under ss 12 and 19 of the Act were acting administratively. Like the trial judge, I propose to proceed on the assumption that it was open to Dr von Arnim to challenge the legality of the warrants in these proceedings. However, having regard to Ousley, the challenge will only be maintainable if, and to the extent that, Dr von Arnim alleges that the issue of the warrants involved non-compliance with a jurisdictional pre-condition that is prescribed by the Act. 44 For reasons which will appear, I consider that neither warrant in this case was affected by any jurisdictional error.

the extradition request 45 All of Dr von Arnim's arguments in this appeal concerning the validity and legality of the warrants issued under the Act depend on his challenge to the form, authenticity and sufficiency of proof of the extradition request from Germany. In the first instance, I shall consider these arguments without regard to the limits that attend a collateral challenge to the validity of the warrants. 46 Dr von Arnim's argument proceeds as follows. In the context of a claim for false imprisonment, Dr von Arnim submits that the respondents carry the burden of proving that the imprisonment was lawful. Under the Act and the Treaty, this is said to entail strict proof that the Australian Government received, via diplomatic channels, a request in writing by Germany for the surrender of Dr von Arnim to Germany. Dr von Arnim submits that this burden was not discharged simply by pointing to warrants which on their face appear to have been regularly issued. In his submission, there was no adequate proof that a valid request in writing had been made by Germany for his extradition. Accordingly, he submits that the trial judge erred in holding that the warrants were validly issued under ss 12 and 19 of the Act and that his imprisonment was lawful. 47 Dr von Arnim advanced various reasons why the diplomatic note could not be regarded as authentic, or otherwise did not comply with the Act and the Treaty. 48 First, it was submitted that there was nothing on the face of the document which shows that it was a request in writing by an extradition country or that it had been conveyed through the diplomatic channel. This submission is without substance. The original diplomatic note was tendered at trial. It is on the letterhead of the Embassy of Germany in Canberra. The document adopts the customary language of a diplomatic note: see E M Satow, Satow's Guide to Diplomatic Practice, 5th edn, ed Lord Gore-Booth, Longman, 1979, at 7.11 and 7.13 ('Satow's Guide'). As the trial judge noted, the style of conclusion to the diplomatic note renders a signature unnecessary: see Satow's Guide at 7.13. 49 The diplomatic note specifically refers to, and submits, duplicate copies of the German warrant for Dr von Arnim. The evidence at trial included certified translations of the German warrant and the order of the Higher Regional Court of Stuttgart dated 29 December 1994. The German warrant was issued by a judge of the Local Court of Stuttgart and bears the seal of that court. Looked at as a matter of substance, the German warrant formed part of the request for extradition, either physically or because it was incorporated by reference: see Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 402-403 ('Harris'). The authenticity of the diplomatic note must be assessed in the light of the documents submitted with it. 50 At trial, there was evidence from an officer of the Attorney-General's Department that the diplomatic note and attached documents were sent to the Attorney-General's Department by the Department of Foreign Affairs and Trade under cover of a letter which stated: 'Request for extradition at the request of the Embassy of the Federal Republic of Germany - von Arnim The enclosed documents have been forwarded by the Embassy of the Federal Republic of Germany with a request that they be forwarded to the appropriate authority in Australia. Your assistance in this matter is appreciated.' The trial judge found that the German warrant was one of the attached documents. 51 The evidence at trial also included an affidavit by an attaché of the German Embassy in Canberra. She deposed that prior to July 1998 Germany had requested the extradition of Dr von Arnim, the German Embassy engaged in extensive communications with the Attorney-General's Department between August 1998 and May 2001 in relation to the request that Dr von Arnim be extradited to Germany, and the Note Verbale dated 16 August 2001 advised that Germany no longer requested the extradition of Dr von Arnim in consequence of the fact that the Regional Court of Stuttgart had dismissed the German warrant against Dr von Arnim on 10 July 2001. This evidence plainly supported the authenticity of the diplomatic note. 52 The foregoing evidence makes it plain beyond argument that the extradition request was conveyed to Australia through the diplomatic channel. 53 Dr von Arnim next argues that the request did not comply with requirements of the Act and the Treaty because it does not bear any signature or seal of the requesting State. As the trial judge pointed out, the only requirement as to form imposed by the Act is that the request be in writing. So far as relevant, art 9 of the Treaty provides: '(1) A request for the extradition of a person claimed shall be in writing. All documents furnished in support of a request for extradition shall be duly authenticated. (2) The request shall be accompanied by (a) all available information concerning the identity and nationality of the person claimed; and (b) a copy of the relevant provisions of the statute, if any, creating the offence or a statement of the relevant law and in either case a statement of the punishment that can be imposed. (3) A request for the extradition of a person claimed for the purpose of prosecution shall be accompanied, in addition to the documents provided for in paragraph (2), by a warrant for the arrest, or a copy of the warrant for the arrest of the person claimed, a description of each offence for which the person is claimed, and a statement of the acts or omissions alleged against the person claimed in respect of each such offence.' 54 Provisions such as art 9 are applied with an eye to substance rather than form. In Harris, the Full Court held that substantial compliance with a Treaty provision such as art 9 is a necessary and sufficient ingredient for the validity of an extradition request: at 401-403; see also Trimbole v Commonwealth (1984) 155 CLR 186 at 191-192; Zoeller v Federal Republic of Germany (1988) 19 FCR 64 per Sheppard J at 79; Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 519. 55 The requirement in art 9(2) that the request be accompanied by specified information and documentation is not construed literally. Rather, the phrase 'accompanied by' has been regarded as sufficiently elastic to include all material submitted at about the time of the request and before the expiration of any relevant cut off date: see Winkler v Director of Public Prosecutions (1990) 25 FCR 79 per Wilcox and O'Loughlin JJ at 96-97; and Harris at 402, at [G]. In Harris, the relevant cut off date was identified as the date upon which the Minister gave the notice required by s 16(1) of the Act: at 403. 56 In the present case, Appleby's affidavit contains information and documentation of the kind referred to in art 9(2). The warrant sets out the relevant statutory offences and punishments and a summary statement of the facts of the case. Appleby's affidavit includes some information concerning the identity and nationality of Dr von Arnim. Additional documents were tendered to the magistrate for the purposes of proceedings under s 19(1) of the Act: see Von Arnim v Federal Republic of Germany (supra) at [2]. 57 Dr von Arnim argued that the diplomatic note was not accompanied by a copy of a relevant warrant in compliance with the requirements of art 9(3). The reason was said to be that the German warrant submitted by the diplomatic note was not in force at the time of the purported request, as the trial judge had found that the German warrant had been limited by that time by the order of the Higher Regional Court in Stuttgart. While it is correct that one of the charges had been revoked, the Higher Regional Court expressly stated that the warrant would continue to apply in respect of the remaining offences. In my opinion, the diplomatic note was accompanied by a warrant for the arrest of Dr von Arnim that satisfied the requirements of art 9(3). 58 It is not clear that Dr von Arnim advanced the same claim at trial. Before the trial judge, Dr von Arnim appears to have advanced the wider argument that the decision of the Higher Regional Court had the consequence that the German warrant had been revoked in its entirety, so that there was no arrest warrant of any kind on foot in 1998 or 1999. The trial judge rightly rejected this argument. 59 Dr von Arnim did not contend that, in any other respect, the request for extradition was not accompanied by the information or documentation required by art 9. It was, however, contended that the diplomatic note did not satisfy the formal requirements of the Act and the Treaty. 60 In this case, as the trial judge pointed out, the diplomatic note concluded with the manuscript letters 'L.S.', an abbreviation for 'locus sigilli' - the place of the seal. There is no reason why the trial judge should not have accepted the evidence that was given by the director of the Administrative and Domestic Law Group in the Department of Foreign Affairs and Trade to the effect that Germany, on occasions, uses the letters 'L.S.' in diplomatic notes in place of a seal or stamp. Thus, even if there were some implied requirement that the diplomatic note be signed or sealed, the manuscript letters 'L.S.' would have sufficed to meet that requirement. But no such requirement is imposed by the Act or the Treaty. Nor does the absence of a signature or seal reflect adversely on the authenticity of the diplomatic note, given all of the features of the note and the other evidence to which I have referred. 61 Dr von Arnim argued that the sworn statement by Appleby that Germany intends to seek the extradition of Dr von Arnim for the offences referred to in the German warrant is inconsistent with the existence at that time of an extradition request from Germany. Appleby's affidavit was sworn on 7 December 1998, and the diplomatic note was dated 20 February 1996. In effect, the argument was that if the diplomatic note were authentic and a request had in fact been made by Germany on 20 February 1996, Appleby would have referred explicitly to that request in his affidavit. 62 In my opinion, the argument is without merit. There is no inconsistency between the statement that Germany intends to seek the extradition of Dr von Arnim, and the existence of a prior extradition request. It was entirely accurate to say as at 7 December 1998, as Appleby did, that Germany intends to seek the extradition of Dr von Arnim, in circumstances where it made a request for extradition on 20 February 1996 and that request was a continuing one. Further, no adverse inference can be drawn from the fact that Appleby does not refer explicitly to the diplomatic note. There is no requirement in s 12(1) of the Act that he do so.

the section 12 warrant 63 The only statutory pre-conditions to the issue of the warrant under s 12 of the Act were that the magistrate must be satisfied, on the basis of the information given by affidavit, that Dr von Arnim is an extraditable person in relation to the extradition country, and that an application has been made, in the statutory form, on behalf of an extradition country to the magistrate for the issue of a warrant for the arrest of that person. The warrant records the magistrate's satisfaction as to the required matters. Even if, contrary to the authorities I have discussed, it were permissible to inquire into the sufficiency of the material that was placed before the magistrate by affidavit, Dr von Arnim has not identified any deficiency in that material. 64 In these circumstances, it is impossible to identify any jurisdictional error that affects the issuance of the s 12 warrant. 65 Section 12 is headed 'Provisional Arrest Warrants'. This heading, and the terms of s 12 itself, may reflect the provisions of art 12 of the Treaty. Article 12(1) provides that, in case of urgency, an application may be made for the provisional arrest of a person pending the making of a request for the extradition of that person. Article 12(2) provides that any such application shall be accompanied by a statement of intention to request extradition, a statement that a warrant has issued for the arrest of the relevant person for an extraditable offence, and statements identifying the offences in question, the time and place of their commission and, to the extent possible, a description of the person sought. 66 Dr von Arnim expressly disavowed any argument that s 12 of the Act was unavailable because the necessary circumstances of urgency did not exist. 67 Dr von Arnim sought to argue that the requirements of s 12 were not met on the basis of statements in Appleby's affidavit. Appleby deposed that Germany intends to seek the extradition of Dr von Arnim. Dr von Arnim contended that this statement indicated that there was no extant or pending request for extradition as at 7 December 1998. For reasons already discussed, I do not think that Appleby's affidavit supports an inference that the diplomatic note is anything other than what it manifestly purports to be, namely a request in writing by Germany for the extradition of Dr von Arnim.

the section 19 warrant 68 Dr von Arnim submitted that a valid notice under s 16(1) is a pre-condition to the exercise of the magistrate's powers under s 19. Under s 19(1), a notice must be given by the Attorney-General under s 16(1) before the magistrate can conduct proceedings under s 19. The main function of those proceedings is to obtain a determination from the magistrate as to whether the person is eligible for surrender in relation to the extradition offence or offences for which surrender of the person is sought by the extradition country. Under s 19(9), the magistrate is required to issue a warrant where the magistrate has so determined. 69 In the present case, Dr von Arnim was on remand under s 15, pursuant to a warrant issued under s 12, at the time when the Attorney-General was considering giving a notice under s 16(1). If at that time the Attorney-General had decided not to issue a notice under s 16(1), or considered for any other reason that the remand should cease, she would have been required to give a notice directing the magistrate to order Dr von Arnim's release from custody: s 17. 70 The obvious statutory intention behind s 16 is that the Attorney-General should carefully scrutinise the case for extradition before giving a notice stating that an extradition request has been received. Speaking of earlier legislation which was in similar form, Burchett J in Schlieske v Federal Republic of Germany (1987) 76 ALR 417 at 422-423, described the Attorney-General's notice as the essential document which translates any Australian obligation, under international law, to extradite a fugitive into a right, under municipal law, to have a particular application for extradition proceeded with before a magistrate. This aptly describes the function of the s 16(1) notice under the Act. 71 In Commonwealth v Dutton (2000) 102 FCR 168 at 176, at [33], Moore J said that the function of the Attorney-General under s 16 provides an important safeguard against the abuse of the extradition process by the country seeking extradition and involves the Attorney-General scrutinising the request independently of the requesting country and, potentially, against the interests of that country. In this sense, Moore J said that s 16 involves the Attorney-General acting as a contradictor to the claim of the requesting country. None of this is controversial. In particular, this analysis of the function and purpose of s 16 was not disputed by the respondents. 72 The structure of the Act makes it fairly plain that the jurisdiction of a magistrate to conduct proceedings under s 19, and to issue a s 19 warrant, is dependent upon the issue by the Attorney-General of a s 16 notice, amongst other matters. In Harris v Attorney-General (Cth) (1993) 45 FCR 11 at 16, Ryan J said that the issue of a s 16 notice is a condition precedent to the conduct of extradition proceedings, but does not constitute a determination of the merits of the extradition request. 73 Dr von Arnim takes the further step of contending that when the legislation makes the giving of a s 16 notice a condition of the exercise of the magistrate's powers under s 19, it is referring to a valid notice. Hence, Dr von Arnim argues that if there was in fact no valid or authentic extradition request, the Attorney-General could not give a valid notice under s 16. 74 The Attorney-General's decision under s 16(1) is susceptible to judicial review: see Harris (1994) 52 FCR 386 at 412-413. There is, of course, a difference between judicial review and merits review. It is possible that there may be an issue as to the extent to which a person in Dr von Arnim's position can go behind the Notice, so as to contend that the Attorney-General ought not to have been satisfied that an extradition request had been received. In this case, the Notice given by Senator Vanstone commenced by specifically referring to the extradition request contained in the diplomatic note and went on to state the opinions specified in s 16(2) of the Act. However, it is unnecessary to consider the scope of the permissible inquiry into the basis upon which the Minister satisfied herself as to the existence of an extradition request. Even if it be assumed that there are no limits to such an inquiry, there was clear evidence of an extradition request in writing constituted by the diplomatic note. 75 Therefore, Dr von Arnim's argument that a statutory pre-condition to the issue of the s 19 warrant was not satisfied founders on the same shoal as his other arguments. The trial judge correctly rejected the argument that there was no sufficient evidence of an authentic extradition request. 76 I also gravely doubt that, consistently with Ousley, Dr von Arnim can attack the validity of the s 19 warrant in these proceedings on the ground that the issuing magistrate should have examined the sufficiency of the evidence that lay behind the Minister's decision to give the Notice. However, it is unnecessary to express any final view on the matter.

breach of duty 77 Dr von Arnim submitted that the trial judge erred by not considering or deciding the question whether the Minister and/or the Commonwealth owed statutory duties or a duty of care to him which were breached. 78 There are two steps in Dr von Arnim's argument. The first is that the respondents owed statutory duties or a duty of care. The amended statement of claim includes an allegation that the Minister owed to Dr von Arnim a statutory duty and/or a duty of care: '(i) to ensure that her opinion formed under the provisions of section 16(2)(a)(i) of the Extradition Act was sufficiently supported by evidence of probative value; (i) to ensure that the purported Request was made in accordance with the requirements of the Treaty; (ii) to ensure that the there was then in force a warrant or warrants for the arrest of the FRG [ie Germany] that the applicant was accused of having committed; (iii) to make all necessary and appropriate enquiries for the aforementioned purposes ('the section 16(2) purposes')' The second step is the allegation that the duties were breached. The only breach that Dr von Arnim now relies upon is that the Minister failed to satisfy herself that a proper and authentic extradition request had been made by Germany in accordance with the provisions of the Act and the Treaty. 79 As I have pointed out, the trial judge considered and determined all of Dr von Arnim's arguments concerning the extradition request. In addition, the trial judge concluded his reasons for judgment with the following remarks: '29. The findings made thus far should dispose of the case in the respondents' favour. Nevertheless I am concerned that there may be an outstanding issue, or an outstanding cause of action, which has not been dealt with or not been disposed of by my findings. My uncertainty arises from the complexity of the Statement of Claim and Dr von Arnim's submissions, which, in no small measure, depart from the pleadings. I will leave it to Dr von Arnim's counsel to raise any outstanding issues before I pronounce final orders.' Subsequently, written submissions were filed on behalf of Dr von Arnim which did not contend that the trial judge had fallen into error by failing to consider and determine the allegations of breach of statutory duty or a duty of care. After having considered the further submissions, the trial judge published supplementary reasons for judgment in which he said that none of the submissions and none of the cases referred to in the supplementary submissions were of any continuing relevance having regard to the findings he had made. I agree entirely. 80 In view of the factual findings made by the trial judge, it was unnecessary for him to consider the question whether any statutory duties or duties of care existed as no case of breach could be made out even if such duties existed. 81 For the purposes of this appeal, it is also unnecessary for me to consider the question whether any statutory duty or duty of care arose. Dr von Arnim failed to establish any legal or factual basis for the alleged breaches.

NOTICE OF MOtion Dated 3 April 2006 82 For the sake of completeness, it is appropriate to record certain events that transpired between the hearing of the appeal and the delivery of judgment. 83 By notice of motion dated 3 April 2006, Dr von Arnim sought leave pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) to lead fresh evidence on appeal. The notice of motion sought orders that the application for leave be heard and determined before delivery of any judgment. The notice of motion was supported by an affidavit of Dr von Arnim and an affidavit of his solicitor, both sworn 3 April 2006. 84 At the time of filing of the notice of motion on 3 April 2006, the proceedings had been fixed for delivery of judgment on 5 April 2006. That judgment listing was vacated and the notice of motion was listed for hearing on 11 April 2006 in Melbourne and by video-link in Perth and Sydney. The hearing of the notice of motion did not proceed because the Court received a fax from Dr von Arnim's solicitor on 7 April 2006 which stated that 'the Appellant unconditionally and wholly withdraws and discontinues his notice of motion filed 3 April 2006.' A notice of discontinuance of motion was subsequently filed on 10 April 2006.

Orders 85 The appeal should be dismissed, with costs. I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young.

Associate: Dated: 11 April 2006 Counsel for the Applicant: B Monetti

Solicitor for the Applicant: Katherine Moorhouse-Perks

Counsel for the Respondents: BE Walters SC with LW Maher

Solicitor for the Respondents: Australian Government Solicitor

Date of Hearing: 27 February 2006 Date of Judgment: 11 April 2006