WALLBUTTON AND ANOR V THE DISTRICT COURT OF ZELL AM SEE AND ANOR HC WHA CIV 2008-488-213

WALLBUTTON AND ANOR V THE DISTRICT COURT OF ZELL AM SEE AND ANOR HC WHA CIV 2008-488-213

Rule 213 of the High Court Rules applies only to civil or commercial matters and therefore did not authorise service in New Zealand of the Austrian criminal summonses; no New Zealand statute permits service of foreign criminal process in respect of relatively minor offences, so the service was invalid under New Zealand law; nevertheless the determination of ultimate validity for Austrian proceedings rests with the Austrian court; application to set aside service was dismissed and application for leave to serve overseas under r 220 was adjourned.

Citation
openlaw-ac55b021_6b4f_4f59_be79_a994cbc38986.pdf
Parties
First Applicant: Phillip Martin Wallbutton; Second Applicant: Karen Smith; First Respondent: The District Court of Zell Am See; Second Respondent: The Public Prosecutor of Salzburg
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 June 2008
Procedural Posture
Application for Review of Associate Judge Decision (judicial Review) / Interlocutory Judgment on Validity of Foreign Service and Leave to Serve Overseas
Outcome
Application to review Associate Judge's refusal to set aside summonses dismissed; Court held service invalid under New Zealand law but declined to set aside as ultimate determination is for Austrian court; application for leave to serve overseas under r 220 adjourned.
Legal Topics
Service of Process, International Service of Process, Validity of Foreign Summons, High Court Rules R 213, Extradition Act 1999, Mutual Assistance in Criminal Matters Act 1992, High Court Rules R 220
Criminal Procedure International Mutual Assistance Civil Procedure Private International Law Service of Process International Service of Process Validity of Foreign Summons High Court Rules R 213 +3 more

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Parties

Phillip Martin Wallbutton

First Applicant

Karen Smith

Second Applicant

The District Court of Zell Am See

First Respondent

The Public Prosecutor of Salzburg

Second Respondent

Procedural Posture

Application for Review of Associate Judge Decision (judicial Review) / Interlocutory Judgment on Validity of Foreign Service and Leave to Serve Overseas

Legal Issues

  1. 1 Whether High Court Rules r 213 authorises service in New Zealand of foreign criminal summonses
  2. 2 Whether service of Austrian summonses on the applicants was valid under New Zealand law
  3. 3 Whether Extradition Act 1999 or Mutual Assistance in Criminal Matters Act 1992 applied

Ratio Decidendi

Rule 213 of the High Court Rules applies only to civil or commercial matters and therefore did not authorise service in New Zealand of the Austrian criminal summonses; no New Zealand statute permits service of foreign criminal process in respect of relatively minor offences, so the service was invalid under New Zealand law; nevertheless the determination of ultimate validity for Austrian proceedings rests with the Austrian court; application to set aside service was dismissed and application for leave to serve overseas under r 220 was adjourned.

Court Disposition

Application to review Associate Judge's refusal to set aside summonses dismissed; Court held service invalid under New Zealand law but declined to set aside as ultimate determination is for Austrian court; application for leave to serve overseas under r 220 adjourned.

Orders

  • Registrar to endorse judgment with delivery time 4.30 pm on 18 June 2008
  • Application for review of Associate Judge's ruling refused (dismissed)