THE CIVIL AVIATION AUTHORITY OF NZ V HEAVYLIFT CARGO AIRLINES PTY LTD & ANOR CA CA131/07

THE CIVIL AVIATION AUTHORITY OF NZ V HEAVYLIFT CARGO AIRLINES PTY LTD & ANOR CA CA131/07 3 April 2008IN THE COURT OF APPEAL OF NEW ZEALAND CA131/07 [2008] NZCA 76BETWEEN THE CIVIL AVIATION AUTHORITY OF NEW ZEALAND AND HEAVYLIFT CARGO AIRLINES PTY LIMITED First Respondent AND THE DISTRICT COURT AT MANUKAU Second Respondent Hearing: 12 February 2008 Court: Hammond, Chambers and Robertson JJ Counsel: N F Flanagan for Appellant N S Gedye for First Respondent Judgment: 3 April 2008 at 10 amJUDGMENT OF THE COURT A The appeal is allowed. B The judgment of the High Court dated 7 March 2007 is set aside in so far as it set aside the summons. C The summons is reinstated, but there is a declaration it has not been validly served to date. D No order for costs in this court.REASONS OF THE COURT(Given by Chambers J)Table of ContentsPara NoService of summons on overseas company [1]Issues on the appeal [6]Does s 19 of the Mutual Assistance in Criminal Matters Act 1992 permit service of a summons overseas? [15]Is there evidence in this case that Australia has agreed to respond to the request? [30]Was proper service effected in this case? [37]Was the High Court right to set aside the summons? [47]Costs [52]Service of summons on overseas company[1] The Civil Aviation Authority of New Zealand, the appellant, alleges that Heavylift Cargo Airlines Pty Ltd, the first respondent, breached s 46 of the Civil Aviation Act 1990. The offence allegedly occurred on 21 September 2004 when Heavylift, an Australian company, permitted one of its aircraft to land at and take off from Auckland International Airport when the company did not hold the requisite foreign air operator's certificate. [2] An investigator employed by the Authority laid an information against Heavylift in the District Court at Manukau. The District Court then issued a summons. But how to serve that summons? Heavylift had neither a registered office nor a place of business in New Zealand. The Authority decided to seek the Attorney-General's assistance under s 19 of the Mutual Assistance in Criminal Matters Act 1992. Under that section, the Attorney-General may request a foreign country to assist in effecting service of any process where the Attorney-General is satisfied that, for the purposes of, or in connection with, any criminal matter, it is necessary or desirable to serve that process on a person or an authority in the foreign country. The Attorney-General agreed to make a request of the Australian authorities. The formal request asked that "a member of the Australian Federal Police be assigned to arrange personal service upon a representative of Heavylift atthe company's registered office". That registered office was elsewhere in the request said to be situated at level 2, FAC House, Keith Smith Avenue, Mascot, New South Wales. [3] Pursuant to that request, on 10 November 2005, Ross Preston, a sworn police officer in the Australian Federal Police, served the summons on Nicholas Leach, Heavylift's Chief Executive Officer, at level 2, FAC House. By the time of service, however, Heavylift's registered office was no longer at level 2, FAC House. It was by then at the offices of Harris & Co, level 11, 99 Bathurst Street, Sydney. [4] Heavylift sought to have the information dismissed on the ground that proper service had not been effected. Judge MacLean ruled in the Authority's favour. Heavylift then brought an application for judicial review of that decision in the High Court at Auckland. On 7 March 2007, Venning J found in Heavylift's favour:Heavylift Cargo Airlines Pty Limited v District Court at Manukau [2007] NZAR 387. He held Judge MacLean had erred as a matter of law in finding that it was arguable that service had been effected on Heavylift. Venning J said that, even assuming there was jurisdiction to serve the summons (which he doubted), service had not been effected in accordance with the law of Australia relating to the service on companies. He said it was not sufficient that the summons might have come to Heavylift's attention. Service was defective and the summons had to be set aside: at [42]. [5] From that decision the Authority has appealed.Issues on the appeal[6] Four issues arise on this appeal. [7] The first is whether s 19 of the Mutual Assistance Act permits service of a summons overseas.[8] If it does, then a second issue arises. Is there evidence in this case that Australia agreed to respond to the New Zealand Attorney-General's request for assistance on service? [9] If the answer is "yes" then a third issue arises. Was proper service effected in this case? [10] If it was not, then the fourth issue is: was Venning J correct in setting the summons aside? [11] In the court below, Venning J did not have to form a definitive view as to the scope of s 19 as he found that, even if it did provide jurisdiction, proper service was not effected in this case. The Authority was keen that we should provide assistance on the jurisdictional question as Mr Flanagan, for the Authority, advised us that other prosecutions were awaiting this court's decision as to the effect of s 19. In addition, Mr Flanagan noted that Venning J's tentative view on jurisdiction differed from Baragwanath J's view on the same question in an earlier round of litigation involving the same parties: Pawson v Heavylift Cargo Airlines Pty Limited [2007] NZAR 97. It was desirable, he said, that the conflict be resolved. [12] Before dealing with the first issue, we briefly summarise what Pawson was about and what Baragwanath J held. Pawson also involved a prosecution of Heavylift for an alleged breach of s 36 of the Civil Aviation Act. The prosecution related to a different incident from the one which was the subject of the information in the current case. In Pawson, the summons had been sent by registered post from New Zealand to Heavylift's registered office in New South Wales. The Civil Aviation Authority, in purporting to serve in that way, relied on s 24(1)(c) of the Summary Proceedings Act 1957. That paragraph provides for service "by registered letter addressed to [the defendant] at his last known or usual place of residence or at his place of business". [13] Heavylift sought to have the information dismissed on the ground of lack of jurisdiction and/or defective service. The District Court Judge dismissed the information for lack of jurisdiction. At the prosecutor's request, however, she stateda case for the opinion of the High Court. Baragwanath J, who heard the case stated, determined the questions stated as follows (at [41]): (a) Was I correct in determining that the Summary Proceedings Act 1957 is silent on the issue of service of informations on overseas companies? Yes. (b) Alternatively, does s 24 of the Summary Proceedings Act 1957 allow service of informations on overseas companies? No. (c) Was I correct to dismiss the information? Yes. [14] By the time of that High Court hearing, the present prosecution had commenced. Both counsel - then, as now, Mr Flanagan and Mr Gedye - asked the judge to comment on the legality of the Authority's use of s 19 of the Mutual Assistance Act and Officer Preston's service on Heavylift. (That service had occurred the month before the hearing before Baragwanath J.) Baragwanath J held that "the service provisions of the Australian domestic law [had] been complied with": at [60]. He accordingly considered there had been good service and that the New Zealand District Court would have jurisdiction to deal with the pending prosecution: at [62]. At that time, neither the Authority nor Baragwanath J was aware of the fact that the Mascot address was no longer Heavylift's registered office.Does s 19 of the Mutual Assistance in Criminal Matters Act 1992 permit service of a summons overseas?[15] Mr Flanagan accepted that, but for s 19 of the Mutual Assistance Act, the Authority could not serve Heavylift overseas. In other words, he accepted the view of Baragwanath J that, in the absence of a s 19 request, the New Zealand courts would lack jurisdiction over an overseas company as such a company could not be served. He was right to make that concession. We consider Baragwanath J was clearly right in determining that, in the absence of a s 19 request, an overseas company could not be served by registered letter addressed to its registered office overseas. It was accordingly crucial to Mr Flanagan's argument that a s 19 requestbe made, even if (apparently) service was not effected in the manner specified in the request. We return to that aspect of the argument when considering the third issue. [16] Mr Flanagan submitted that s 19 permitted the Attorney-General to make a request for assistance in the service of what we shall call "an originating summons". By that term, we mean a summons issued by the District Court under s 19(1)(a) of the Summary Proceedings Act. That paragraph provides for the District Court to "issue a summons", addressed to the defendant, after an information has been laid. Mr Gedye, for Heavylift, disputed that s 19 of the Mutual Assistance Act permitted service of originating summonses. He submitted the section was limited to requests for assistance in respect of "process matters or mechanical steps" after personal jurisdiction had already been established. He submitted that to read s 19 as applying to the service of originating summonses was contrary to s 6 of the Mutual Assistance Act, which specified that nothing in the Act authorised "the extradition or rendition of any person" or "the arrest or detention, with a view to extradition or rendition, of any person". [17] Venning J did not express a concluded view on this question. He considered it unnecessary to do so, as he had already concluded that service of the originating summons, even if legally possible, had been defective. He inclined to the view, however, that s 19 did not permit service of an originating summons: at [36] and [41]. Venning J's tentative view was contrary to Baragwanath J's view, also an obiter dictum, in Pawson. Baragwanath J considered s 19 permitted requests for assistance with respect to service of an originating summons. [18] In order to answer the first issue in this case, we need to put the Mutual Assistance Act in its context. The Act has two progenitors. The first was a Commonwealth scheme, officially called The Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth, but colloquially termed the Harare Scheme, as it was adopted by the Commonwealth Law Ministers meeting in Harare in 1986. The Harare Scheme was not a binding international agreement, but Commonwealth countries were expected to implement it by means of domestic legislation. For example, the United Kingdom implemented the Harare Scheme, along with other agreements and conventions to which that country was party, in theCriminal Justice (International Co-operation) Act 1990. Australia implemented the Harare Scheme in its Mutual Assistance in Criminal Matters Act 1987. As the official title of the scheme makes clear, the scheme's purpose was to facilitate co- operation between Commonwealth countries by providing mechanisms by which one could seek assistance from another with respect to criminal proceedings and investigations. [19] The second progenitor of our Mutual Assistance Act was a resolution of the General Assembly of the United Nations of 14 December 1990. The resolution of the General Assembly adopted a "Model Treaty on Mutual Assistance in Criminal Matters together with the Optional Protocol thereto" as "a useful framework that could be of assistance to States interested in negotiating and concluding bilateral agreements aimed at improving co-operation in matters of crime prevention and criminal justice": UN General Assembly Resolution, A/RES/45/117 14 December 1990, resolution 1. The General Assembly went on to "invite Member States, if they have not yet established Treaty relations with other States in the matter of mutual assistance in criminal matters, or if they wished to revise existing treaty relations, to take into account, whenever doing so, the Model Treaty": resolution 2. [20] Section 19 of our Mutual Assistance Act, if taken literally, does no more than empower our Attorney-General to make a request of a foreign country to assist in effecting service of any process on people in that foreign country. Although the section does not in express terms declare service effected under s 19 to be lawful service for the purposes of New Zealand law, that must nonetheless have been the Parliamentary intention. There is, after all, no point in the Attorney-General making a request, and the foreign country complying with it, if the service is not to be treated as effective service for the purposes of our law. A narrow or literal interpretation would rob s 19 of its intended effect and would seriously undermine the implementation of the Harare Scheme and the United Nations' Model Treaty. [21] But does s 19 permit lawful service of an originating summons? The section talks of "service of any process". "Process" is defined in s 2(1) of the Mutual Assistance Act as meaning "any summons, warrant, order, or other document issuedout of any court". We consider an originating summons to come within that definition. [22] We have reached that view for the following reasons. First, the originating summons is probably the most common summons issued "for the purposes of, or in connection with, any criminal matter". If Parliament intended to exclude them from the term "summons", one would have expected an express exception to be recorded, either in s 19 or in the definition of "process". [23] Secondly, it is clear that the Harare Scheme envisaged countries requesting and rendering assistance in the service of originating process. The precise progenitor of s 19 was para 15 of the Harare Scheme. The official commentary to para 15 reads as follows:Assistance can be requested in the service of any document relevant to a criminal matter arising in the requesting country. In early drafts, this provision was limited to judicial documents (originating process, subpoenas, judgements, etc) but the wider formulation included in the final text will cover any document of which service is required under the procedural rules of the requesting country. For example, notices of appeal by the prosecution and certificates of analysis in drugs cases were cited in Canadian observations. [Emphasis added.][24] From that commentary it is clear that service of "originating process" was always intended; as the document went through its various drafts, the wording wasbroadened to include other documents. It is interesting to note that one of the documents later added was a notice of appeal, which is, of course, itself an originating document relating to a later stage of a criminal proceeding. [25] An explicit acknowledgement that originating process may be the subject of overseas service if requested by the appropriate authority is provided by s 2(1) of the Criminal Justice (International Co-operation) Act, which, as we have said, was the United Kingdom's response to the Harare Scheme. That subsection read as follows:Process of the following descriptions, that is to say – (a) a summons requiring a person charged with an offence to appear before a court in the United Kingdom; and(b) a summons or order requiring a person to attend before a court in the United Kingdom for the purpose of giving evidence in criminal proceedings, may be issued or made notwithstanding that the person in question is outside the United Kingdom and may be served outside the United Kingdom in accordance with arrangements made by the Secretary of State.[26] Thirdly, contrary to Mr Gedye's submission, s 6 of the Mutual Assistance Act does not require s 19 to be read down. There is no suggestion that service of the originating summons will render Heavylift or its directors liable to extradition or rendition, or liable to arrest or detention with a view to extradition or rendition. Their rights with respect to extradition and rendition depend on Australian law and are unaffected by service of this summons. [27] The effect of s 19 is to supplement the modes of service of originating summonses in summary proceedings. There are now four different regimes governing the service of summonses in such proceedings: (a) If the defendant is a natural person in New Zealand, the summons may be served in any of the ways specified in s 24(1) of the Summary Proceedings Act; (b) If the defendant is a Crown organisation (as defined in s 2(1) of the Summary Proceedings Act and s 4 of the Crown Organisations (Criminal Liability) Act 2002), then service may be effected in any of the ways specified in s 24(1A) of the Summary Proceedings Act; (c) If the defendant is a New Zealand company or an overseas company registered here, then service in New Zealand must be effected in one of the ways sanctioned in ss 387-390 of the Companies Act 1993; (d) If the defendant is overseas, then service may be effected in conformity with a request made by the Attorney-General under s 19 of the Mutual Assistance Act.[28] For the purposes of this judgment, we put to one side the special service rules applicable to members of the Armed Forces and prisoners set out in s 28 of the Summary Proceedings Act. We also ignore the special rules where a solicitor represents that he or she is authorised to accept service of a document on behalf of someone: s 28(2). [29] Initially, what the Authority hoped to rely on in this case was regime (d) as set out in [27] above. It was possible for service to be effected overseas in conformity with a request. The answer to the first issue, therefore, is: yes, s 19 of the Mutual Assistance Act does permit service of any summons, including an originating summons, overseas.Is there evidence in this case that Australia has agreed to respond to the request?[30] If we found s 19 of the Mutual Assistance Act did permit the Attorney-General to seek assistance with service of an originating summons, then Mr Gedye's fallback submission was that in this case there was no evidence that Australia had agreed to respond to the request. Mr Flanagan disputed this submission. It is not a matter on which Venning J expressed a view. It may be inferred from Baragwanath J's obiter dicta to the effect this prosecution could proceed that he considered service effective, although it may be this precise argument was not advanced to him. [31] Before evaluating Mr Gedye's submission, we need to set out what evidence is before the court. First, there is a formal certificate under seal of the Australian Attorney-General's Department. It reads as follows:CERTIFICATION OF MATERIAL PRODUCED IN RESPONSE TO A REQUEST FROM A FOREIGN COUNTRY I, Anthony Nicholas Seebach, Acting Assisting Secretary of the International Crime Co-operation Branch, Criminal Justice Division, Attorney-General's Department, an officer in and of the Commonwealth of Australia, certify that the material attached to this certificate is produced in response to a request from New Zealand in the matter of Heavylift Cargo Airlines Proprietary Limited.Anthony Nicholas Seebach Acting Assistant Secretary International Crime Co-operation Branch Criminal Justice Division Attorney-General's Department An officer in and of the Commonwealth of Australia 18 November 2005[32] Secondly, annexed to that certificate was an affidavit of Officer Preston, attesting to his service of the summons at the Mascot address. He annexed to his affidavit copies of what he served. [33] Mr Gedye submitted that the Authority had to establish that Australia had consented to New Zealand's "serving originating criminal processes in Australia". He accepted the certificate showed that "a member of the Attorney-General's Department [had] agreed on this occasion to provide assistance in serving a document", but he submitted that "there was no evidence that Mr Seebach [had] turned his mind to the significant constitutional issue of whether to authorise jurisdiction by the New Zealand District Court over an Australian entity in this case, or that he had any authority to do so". [34] We do not accept this submission. Mr Seebach's certificate is evidence that Australia did respond to our Attorney-General's request and that the summons was served. The New Zealand courts are not required to go behind Mr Seebach's certificate. It is not for us to question or be satisfied as to Mr Seebach's authority to agree to New Zealand's request and to arrange service. Our sole concern is to see whether service was effected in the manner requested by our Attorney-General. The Australians purported to comply with our request: under what authority Mr Seebach or Officer Preston acted is irrelevant. [35] Although not necessary for a determination of this issue, we note in passing that the Australian authorities, in agreeing to assist New Zealand, appear not to have operated pursuant to any specific provision in the Australian Mutual Assistance in Criminal Matters Act 1987. The Australian Act, on which ours was closely modelled, does not have the equivalent of ss 19 or 51-53. (Sections 51-53 of our Act are concerned with this country's obligations to assist foreign countries seekingassistance in the service of process: they are effectively mirror sections of s 19.) Australian assistance was presumably given as an act of goodwill towards New Zealand. Section 6 of the Australian Act provides that that Act "does not prevent the provision or obtaining of international assistance in criminal matters other than assistance of a kind that may be provided or obtained under [that] Act". We have a similar provision in our Mutual Assistance Act: s 25A permits this country to give ad hoc assistance beyond that specifically provided in the Act. [36] The answer to the second issue is that Mr Seebach's certificate is sufficient evidence of Australia's willingness to respond to our Attorney-General's request.Was proper service effected in this case?[37] It is for the Attorney-General to determine the assistance to be sought from the foreign country. In this case, the Attorney-General, through his duly authorised delegate, determined it was appropriate to seek assistance from Australia under s 19. It was not necessary for him to specify how service of the summons was to be effected, but in this case he did specify the "particular method": it was "personal service upon a representative of Heavylift at the company's registered office". That was erroneously believed to be the Mascot address. In fact, by the time of purported service, that address had ceased to be Heavylift's registered office. The short answer, therefore, is that service was not effected in accordance with the Attorney-General's request. Regime (d), as set out at [27] above, was therefore not complied with. [38] Mr Flanagan accepted regime (d) was not complied with. He said, however, service had nonetheless been effected under s 24(1)(a) of the Summary Proceedings Act. That paragraph provides for service by virtue of the summons "being delivered to [the defendant] personally or by being brought to his notice if he refuses to accept it". Mr Flanagan's argument appeared to be that, once a s 19 request was made, any of the modes of service specified under s 24(1) became available. It did not matter that service had not been effected in the manner requested by the Attorney-General.[39] With respect, that is not how the various service regimes interrelate. The correct analysis is as set forth in [27] above. The modes of service set out in s 24(1) of the Summary Proceedings Act are available only with respect to defendants who are natural persons and in New Zealand at the time of service. Those modes of service do not become available overseas just because a request has been made under s 19 of the Mutual Assistance Act. If s 19 is relied on, then service must be effected in accordance with the terms of the request. Mr Flanagan accepted he could not establish service in accordance with the request. None of the other service regimes is available. [40] While we have come to the same conclusion as Venning J that Heavylift has not been properly served, our reasoning is different. We need to explain the difference in reasoning. [41] First, His Honour considered whether the service on Heavylift would have been effective if it had occurred in New Zealand and Heavylift had been a New Zealand company or an overseas company registered here. He held the service would have been defective, as it failed to comply with the methods of service prescribed by s 387 of the Companies Act (for New Zealand companies) or s 389 (for overseas companies registered in New Zealand): at [13]-[14]. His Honour was correct about that, but it is irrelevant. That is regime (c): it had no relevance to a regime (d) case. [42] Secondly, His Honour considered whether the sort of service in fact effected would have amounted to valid service under either the Service and Execution of Process Act 1992 (Commonwealth) or the Corporations Act 2001 (Commonwealth). He concluded this service did not comply with either Act. The judge was right about that, but again that is irrelevant. Those Acts prescribe modes of service applicable for Australian litigation and purposes. We are not concerned with whether service complied with Australian legislation: we are concerned with whether service was effected in accordance with our Attorney-General's request. That is all regime (d) requires. Obviously, the New Zealand Attorney-General, when specifying the mode of service, will inform himself about modes of service prescribed or permitted in the foreign country to which the request is being made, just as we would expect aforeign country making a request of us to be cognisant of normal modes of service in this country. The fact that the Attorney-General specified that service had to be effected at Heavylift's registered office no doubt reflects the fact that service on a registered office is a prescribed method of serving process under Australian law. But the reason the service was defective here was the Australian authorities' failure to effect service (obviously by mistake) in accordance with the request, not the fact this would not have been good service had it been an Australian process being served on an Australian company in Australia. [43] We have already commented that a request under s 19 does not have to specify the particular method of service: at [37]. In those circumstances, almost certainly the law is that the requested country should serve in accordance with its own procedural requirements of service. The official commentary to para 15 of the Harare Scheme suggests that to be the case. We specifically refrain from deciding what the position is if our Attorney-General specified a mode of service which was unlawful in the requested country. It is very unlikely our Attorney-General would ever make such a request; if he did, the legality of any service effected pursuant to it would have to be considered in a case where the point truly arose. [44] Venning J went on to consider whether a New Zealand court could rule on service in Australia. He held it could, given there was evidence from an Australian solicitor as to the meaning of the relevant sections of the Service and Execution of Process Act and the Corporations Act: at [22]. On our analysis, this question does not arise. We are not called on to rule on whether this would have been effective service if this were an Australian summons being served on Heavylift in Australia. Service was defective here because it was not in accordance with our Attorney-General's request. [45] Finally, Venning J dealt with Mr Flanagan's argument that service had been effected in terms of s 24(1)(a) of the Summary Proceedings Act. Venning J concluded that section did not apply to service overseas: at [26]. He noted that Baragwanath J had come to the same conclusion in Pawson: see Pawson at [40]. On that point, we agree with Venning J (and Baragwanath J), for the reasons we have given above.[46] In our respectful view, Venning J fell into error as to reasoning (though not result) as a consequence of effectively putting the Mutual Assistance Act to one side. His comments on that Act are obiter dicta and follow his conclusion at [29] that service was defective. The key to this case in our view is the Mutual Assistance Act. It has the effect of creating an additional service regime in the circumstances where it applies.Was the High Court right to set aside the summons?[47] The information was laid in time. The summons was lawfully issued under s 19 of the Summary Proceedings Act. But that summons has not (at least to date) been properly served. Venning J ordered that the summons be set aside. In technical terms, we consider that was not the appropriate order: rather, he should have simply declared it had not to date been properly served. This is a very minor point, as the end result is, to nearly all intents and purposes, identical. But it does mean that, in formal terms, the appeal must be allowed. The High Court order setting aside the summons must itself be set aside. The summons must be reinstated. At the same time, we make clear, by means of the formal declaration in order C, that the summons has not been validly served to date. [48] What can now happen? The Authority no longer has the original summons issued by the District Court. But it could always apply for a fresh summons in the prescribed form. The fact the power under s 19 of the Summary Proceedings Act has already been exercised once with respect to this criminal proceeding does not prevent its re-exercise: see Interpretation Act 1999, s 16. If a fresh summons is issued, then it will be necessary for the Authority to approach the Attorney-General again to persuade him to make a fresh request to the Australian authorities, this time specifying Heavylift's correct registered office. [49] It is up to the Authority whether it wishes to pursue this prosecution after all this time. (We rather got the impression from Mr Flanagan that the Authority's principal concern was to establish the correct interpretation of s 19 rather than any particular desire to continue with this specific prosecution.) If the Authority doesdecide to pursue the matter then it will be for the Attorney-General to decide whether he wishes to make a fresh request. [50] Of course, it is conceivable that, if the Authority pursues the matter afresh and Heavylift is eventually lawfully served, Heavylift will apply for a dismissal or stay of the prosecution on the grounds of delay or abuse of process. The District Court has inherent power to control its process to prevent abuse. Delay in service of the summons could amount to abuse of process: see Department of Social Welfare v Stewart [1990] 1 NZLR 697 at 703 (HC) and Watson v Clarke [1990] 1 NZLR 715 at 727 (HC). We express no view as to the chances of success of such an application, as we have no evidence on that and have heard no submissions. [51] We also express no opinion as to the powers of the New Zealand courts if Heavylift ignores a properly served summons. Again, we heard no submissions on that.Costs[52] We make no order for costs in this court. The case was in the nature of a test case, as the Authority (and perhaps the Crown generally) wanted clarification as to the effect of s 19 of the Mutual Assistance Act. Further, although in form the appeal has been allowed, the truth is each party has had a measure of success on the issues raised by this appeal.Solicitors: Meredith Connell, Auckland, for Appellant Norton White, Sydney, Australia, for First Respondent