Pre) IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) ) ) No. ACT G65 of 1983 ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ANTONIO GIORGI Appellant AND: THE QUEEN Respondent ORDER JUDGE MAKING ORDER: Neaves J. DATE OF ORDER: 14 November 1983 WHERE MADE: Canberra TIE COURT ORDERS: That the motion notice of which was filed on 25 October 1983 be dismissed. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G75 of 1983 DISTRICT REGISTRY GENERAL DIVISTON ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPTTAL TERRITORY BETWEEN: THE QUEEN Appellant AND: ANTONIO GIORGI Respondent ORDER JUDGE MAKING ORDER: Neaves J. DATE OF ORDER: 14 November 1983 WHERE MADE: Canberra THE COURT ORDERS: That the notice of appeal filed herein on behalf of the appellant on 16 September 1983 be taken to have been served on the respondent on that date. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G65 of 1983 DISTRICT REGISTRY dd GENERAT, DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ANTONIO GIORGI Appellant AND: THE QUEEN Respondent IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPTTAL TERRITORY No. ACT G75 of 1983 DISTRICT REGISTRY ed GENERAL DIVISION BETWEEIW : THE QUEEN Appellant AND: ANTONIO GIORGI Respondent CORAM: Neaves J. DATE: 14 November 1983 REASONS FOR JUDGMENT On 25 October 1983 the Crown gave notice of two motions to this Court in relation to matters No. ACT G65 of 1983 and No. ACT G75 of 1983 pending in the appellate jurisdiction of this Court, both matters being appeals from the Supreme Court of the Australian Capital Territory. Matter No. ACT G65 of 1983 was commenced by a notice of appeal filed on behalf of Antonio Giorgi on 12 August 1983 appealing against his conviction by a jury on 22 July 1983 for an offence under parayraph 86(1) (a) of the Crimes Act 1914 (Cwlth) of conspiring with certain named persons and with persons unknown to commit an offence against a law of the Commonwealth, namely sub-section 4(3) of the Poisons and Narcotic Drugs Ordinance 1978 of the Australian Capital Territory. In that matter a supple- mentary notice of appeal was filed on behalf of Giorgi on 8 September 1983 Following the imposition upon him on 26 August 1983 of a sentence of imprisonment for 15 months, such sentence being suspended upon Giorgi entering into a recognizance to be of good behaviour for two years. Giorgi was also Fined $500. A notice of cross-appeal was filed on behalf of the Crown on 20 September 1983. On the hearing of the motion on 28 October 1983 the Crown sought no order in matter No. G65 of 1983. That motion is, therefore, dismissed. Matter No. ACT G75 cf 1983 was commenced by a notice of appeal filed on behalf of the Crotm on 16 Sept- ember 1983. The ground of the appeal is that the sentence imposed on Giorgi is inadequate. The notice of motion as filed sought the following orders ~ 1. That the notice of appeal filed on 16 September 1983 be taken to have been served on Giorgi on 16 September 1983; 2. That instead of personal service on Giorgi, the Crown have leave to serve the notice of appeal on Giorgi by serving a copy thereof on Mr. W.C. Pierce, Giorgi's solicitor; 3. That the time fixed for service of the Notice of Appeal on Giorgi be extended to 31 December 1983 or such earlier tire as to the Court seems fit; 4, Any further order the Court thinks fit. On the hearing of the motion the Crown was represented by Mr. Lalor. Giorgi was represented by Mr. Pierce who had been his solicitor in the proceedings in the Supreme Court of the Australian Capital Territory and had the conduct of Giorgii's appeal in matter No. ACT G65 of 1983. The Crown submitted that an order should be made in terms of the first order sought in the notice of motion, relying for this purpose upon the provisions of Order 7, rule 10 of the Federal Court Rules. That rule provides - "Where for any reason it is impractical to serve a document in the manner set out in the Rules, but steps have been taken to bring the document to the notice of the person to be served, the Court may order that the document be taken to have been served on that person on a date specified in the order." In the alternative the Crown sought an order under Order 3, rule 3 of the Federal Court Rules extending the time within which to serve the notice of appeal filed on 20 September 1983 to 29 November 1983, that being the date on which the hearing of Giorgi's appeal in matter No. ACT G65 of 1983 is expected to commence before a Full Court of this Court. Mr. Pierce neither consented to nor opposed the Crown's application. I am satisfied on the material before me that Giorgi departed Australia for overseas on or about 6 Sept- ember 1983 and had not returned to Australia when the motion came on for hearing on 28 October 1983. There is evidence before me that Mr. Pierce informed an officer of the Deputy Crown Solicitor's Office on 24 October 1983 that Giorgi was in Italy but was expected to return to Australia soon. Mr. Pierce informed me that Giorgi was expected to return for the hearing of his appeal to this Court which has been fixed to commence before a Full Court on 29 November 1983. The evidence before me establishes that personal service of the notice of appeal was unsuccessfully attempted on Giorgi on 16 September 1983 at his residence. A copy of the notice of appeal was then delivered to Mr. Pierce at his office at Canberra later on that date. By letter dated 12 September 1983 addressed to Mr. Plerce, the Deputy Crown Solicitor had asked to be advised whether, in the event of an appeal by the Crown, Mr. Pierce was prepared to accept service of a notice of appeal and, if not, would he seek instructions to do so as a matter of urgency. Mr. Pierce by letter dated 15 September 1983 (which was apparently not received by the Deputy Crown Solicitor until 19 Sept~ ember 1983) confirmed that "I have instructions on behalf of A. Giorgi to accept service of a notice of appeal by the Crown". Order 52, rule 12 provides that an appeal is instituted by the filing of a notice of appeal. The notice of appeal is, by virtue of Order 52, rule 15, to be filed and served within the time there prescribed. Order 52, rule 2 requires that service of a notice of appeal be effected by serving a signed and scaled copy of the document personally on the party to be served or by delivering a signed and sealed copy of the document to that party's address for service in the proceeding in the court appealed From. There is nothing before me to indicate that Giorgi had an address for service in the proceeding in the Supreme Court of the Australian Capital Territory or, if he did, what that address was. During the hearing I expressed some doubt whether the power conferred by Order 7, rule 10 was available in the case of the service of a notice of appeal in view of the express provision for service contained in Order 52, rule 2. The general provision in Order 7 sub-rule 1(1) requiring originating process to be served personally is expressly said to be subject to the provisions of that order but no similar words are used in Order 52, rule 2. However, having given the matter further consideration I am of the opinion that Order 7, rule 10 is a provision of general application just as Order 3, rule 3 was held to be by Fox J. in The Queen v. Bishop (unreported - 3 February 1982), a view with which Deane J. was inclined to agree (Bishop v. R. (1982) 40 A.L.R. 40 at p. 41). It is, therefore, open to the Court to make the order sought by the Crown if the merits of the application warrant that course. I am satisfied that it was impracticable to serve the notice of appeal within the time prescribed by delivering a signed and sealed copy to Giorgi personally by reason of the circumstance that at all relevant times Giorgi was overseas. There was then, as there was at the time the motion was heard, no specific information as to his precise whereabouts or as to the date of his proposed return, In those circumstances the Crown delivered to Mr. Pierce within the time prescribed by Order 52, rule 15 a copy of the notice of appeal. Mr. Pierce was the solicitor who had acted for Giorgi in the proceedings in the Supreme Court of the Australian Capital Territory and had on Giorgi's behalf filed a notice of appeal to this Court in matter No. ACT G65 of 1983 giving on that notice of appeal his address as being Giorgi's address for service. further, he had before the copy of the notice of appeal was delivered to him received instructions From Giorgi to accept service of the notice of appeal on Giorgi's behalf. It is also clear that Mr. Pierce has briefed counsel to appear before the Full Court on Giorgi's behalf on the basis that the Crown's appeal is on foot. In the light of this material I am satisfied that steps have been taken by the Crown within the meaning of Order 7, rule 10 to bring the notice of appeal to Giorgi's notice. », 1, therefore, order that the notice of appeal filed on behalf of the Crown on 16 September 1982 be taken to have been served on Giorgi on that date. It is unnec- essary to consider the alternative form of order sought. I certify that the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Neaves. DATED: 14 November en o . . os Associate