New South Wales Court of Appeal CITATION: Snedden v Nationwide News Pty Limited [2010] NSWCA 98 HEARING DATE(S): 3 May 2010 JUDGMENT DATE: 3 May 2010 JUDGMENT OF: Hodgson JA at 1 EX TEMPORE JUDGMENT DATE: 3 May 2010 1. I order that the appeal be stayed until further order. 2. I order that, unless on or before 5 July 2010 the appellant files an affidavit disclosing either that he has notified Darryl Parrish of his whereabouts and made himself available to be taken into custody pursuant to the order made by Deputy Chief Magistrate Cloran on 12 April 2007 and confirmed by the High Court of Australia on 30 March 2010 or that he has been actually taken into custody pursuant to that order, then the appeal is dismissed with costs. DECISION: 3. If such an affidavit is filed on or before 5 July 2010, then the notice of motion is to be promptly re-listed before the Registrar so that the question of stay and security for costs and any other issue can be further considered. 4. I order that Mr Snedden pay the costs to date of the notice of motion. 5. I will vacate the listing for directions. CATCHWORDS: PROCEDURE – Appeal – Appellant evading lawful custody and in breach of High Court order – Appeal stayed – Whether appeal should be summarily dismissed. LEGISLATION CITED: Extradition Act 1988 (Cth) s 12, s22 Uniform Civil Procedure Rules rules 13.4, 42.21, 51.50 CATEGORY: Procedural and other rulings PARTIES: NATIONWIDE NEWS PTY LIMITED (Applicant/Respondent) Daniel SNEDDEN (Respondent/Appellant) FILE NUMBER(S): CA 2005/269445 COUNSEL: T D BLACKBURN SC/ J HMELNITSKY (Applicant (Nationwide)) C EVATT/ R RASMUSSEN/ C EVANS (Respondent (Snedden)) SOLICITORS: Blake Dawson (Applicant (Nationwide)) DC Legal Pty Ltd (Respondent (Snedden)) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20389/2005 LOWER COURT JUDICIAL OFFICER: Latham J LOWER COURT DATE OF DECISION: 18 December 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Snedden v Nationwide News [2009] NSWSC 1446 - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2005/269445 HODGSON JA Monday 3 MAY 2010 Daniel SNEDDEN v NATIONWIDE NEWS PTY LIMITED Judgment 1 HIS HONOUR: On 18 December 2009, after a lengthy hearing, Latham J gave a verdict for the defendant, Nationwide News, in proceedings in which the plaintiff, Mr Snedden, had sued it for defamation. On 23 December 2009 Mr Snedden filed a notice of intention to appeal, and he filed a notice of appeal on 4 March 2010. 2 I am dealing with an amended notice of motion filed by Nationwide News on 21 April 2010, in which Nationwide News seeks the following orders: 1. These proceedings be struck out. 2. In the alternative, these proceedings be stayed. 3. Further and in the alternative, pursuant to Rules 42.21 and 51.50 of the UCPR , the appellant give security for the respondent's costs: (a) of the appeal in the sum of $41,659.20; and (b) of the proceedings in the Court below in the sum of $732,000.00. 4. The proceedings be stayed until the security in order 2 above is given. 5. The NSW District Court proceedings commenced by the appellant against the respondent (no. 4181 of 2009) be struck out. 6. In the alternative, the NSW District Court proceedings be stayed. 7. Further and in the alternative, pursuant to Rules 42.21 and 51.50 of the UCPR, the appellant give security for the respondent's costs in the NSW District Court proceedings in the sum of $24,800.00. 8. The NSW District Court proceedings be stayed until the security in order 7 above is given. 9. The appellant pay the respondent's costs of and relating to this application. 10. Any other order that the Court thinks fit. 3 The matters relied on in support of the notice of motion are briefly as follows. 4 In about January 2006, the government of the Republic of Croatia issued a warrant for the arrest of Mr Snedden, who is otherwise known as Dragan Vasilykovic, and a request for his extradition to the Republic of Croatia to face allegations of war crimes. 5 On about 19 January 2006, Mr Snedden was arrested in New South Wales pursuant to a warrant issued by a magistrate under s 12 of the Extradition Act 1988 (Cth) ("the Act"). 6 On 12 April 2007, Deputy Chief Registrar Cloran of the Local Court determined that Mr Snedden was eligible to be surrendered to the Republic of Croatia under s19(1) of the Act. He also ordered, pursuant to s19(9) of the Act, that Mr Snedden be committed to prison to await surrender under a surrender warrant or temporary surrender warrant, or release pursuant to an order under s22(5) of the Act. 7 Mr Snedden applied to the Federal Court for review of the Magistrate's decision. On 3 February 2009, Cowdroy J dismissed that application. However, on 2 September 2009 the Full Court of the Federal Court upheld Mr Snedden's appeal and ordered that Mr Snedden be released from custody, albeit staying that order until 3pm on 4 September 2009. 8 Mr Snedden was released from custody pursuant to the order of the full Federal Court. The Republic of Croatia appealed from the Full Court decision to the High Court of Australia. 9 On 25 February 2010, the High Court made consent orders requiring Mr Snedden to surrender passports and not attend any point of international departure. These consent orders also included an order that Mr Snedden advise the Australian Federal Police of his present residential address and give seven days notice in advance of any proposed change of that address. The consent orders went on to provide that the notice that I've just referred to was, "to be in writing, and made to Federal Agent Darryl Parrish and or sent by a facsimile to [a specified telephone number] or by email to [a specified email address], unless the respondent is otherwise advised by the Australian Federal Police". 10 On 30 March 2010, the High Court allowed the Republic of Croatia's appeal, set aside the orders of the full Court of the Federal Court and, among other orders, ordered "that the orders made by Deputy Chief Magistrate Cloran on 12 April 2007 are confirmed". 11 There is evidence that the Australian Federal Police are now unable to locate Mr Snedden, but are continuing to make enquiries to locate him. It seems clear from this evidence that Mr Snedden has not notified Mr Parrish of any change of his residential address but is now longer to be found at a residential address previously notified. 12 Mr Snedden had in fact been in custody during the hearing of the case before Latham J. The District Court proceedings referred to in the notice of motion are the proceedings for defamation brought by Mr Snedden against Nationwide News. On 5 February 2010, these proceedings were, by agreement of the parties, placed in an inactive list in the District Court pending the outcome of this appeal. 13 Mr Blackburn SC for Nationwide News has submitted that the court should infer that Mr Snedden is deliberately taking steps to evade lawful custody and is in breach of the High Court order requiring notification to the Australian Federal Police of changes to his residential address. In those circumstances, Mr Blackburn submits, Mr Snedden should not be permitted to pursue either this appeal or the proceedings in the District Court and the proceedings should be dismissed. Alternatively, he submits, the appeal proceedings and the proceedings in the District Court should be stayed. He further submits that there are special circumstances justifying an order for security for costs under rule 51.50 of the Uniform Civil Procedure Rules. 14 In my view, and I think Mr Blackburn ultimately accepted this, as a single judge of the Court of Appeal I do not have power to exercise supervisory jurisdiction over the District Court and, in my view, I should not make any orders concerning the District Court proceedings. 15 As regards a stay of proceedings, Mr Evatt for Mr Snedden ultimately accepted he could not argue against a stay in the circumstances. Ultimately the debate came down to a question whether, in addition to ordering a stay, I should order dismissal of the proceedings. Mr Blackburn sought an order for immediate dismissal or, in the alternative, an order dismissing the proceedings unless within a specified period Mr Snedden had ceased to be in breach of the High Court order and ceased to be evading lawful custody. Mr Evatt submitted that I should not make any such order but, at most, review the matter in (say) three months time. He submitted that a self-executing order to dismiss the appeal would be too extreme. Neither party referred me to any authority on the issues raised by this notice of motion. 16 This is not a case where Mr Snedden has actually escaped from lawful custody. He was lawfully released from custody pursuant to the order of the Full Federal Court. However, in my opinion, the inference can and should be drawn that he is now deliberately evading lawful custody and that he is in breach of the order made in the High Court to notify the Australian Federal Police of changes to his residential address. 17 I do not think the circumstances justify immediate dismissal of the appeal. However, in my opinion, Nationwide News should not be indefinitely subject to the possibility of the appeal proceeding for so long as Mr Snedden continues to evade lawful custody and not comply with the order of the High Court. In my opinion, undue prolongation of this position would amount to an abuse of the court's process justifying summary dismissal pursuant to UCPR 13.4. 18 In my opinion it would be appropriate to order dismissal of the appeal unless on or before 5 July 2010 an affidavit is filed by Mr Snedden disclosing that he has notified Darryl Parrish of his whereabouts and made himself available to be taken into custody pursuant to the order made by Deputy Chief Magistrate Cloran on 12 April 2010 confirmed by the High Court of Australia on 30 March 2010. That is, in effect, the order I propose to make. If the appellant does file such an affidavit on or before 5 July 2010 it may then be appropriate to consider whether security for costs should be ordered. It does not seem to me appropriate to consider the matter of security of costs in circumstances where there is a stay in operation and where the proceedings are liable to be dismissed in the circumstances I have indicated. 19 I make the following orders: 1. I order that the appeal be stayed until further order. 2. I order that, unless on or before 5 July 2010 the appellant files an affidavit disclosing either that he has notified Darryl Parrish of his whereabouts and made himself available to be taken into custody pursuant to the order made by Deputy Chief Magistrate Cloran on 12 April 2007 and confirmed by the High Court of Australia on 30 March 2010 or that he has been actually taken into custody pursuant to that order, then the appeal is dismissed with costs. 3. If such an affidavit is filed on or before 5 July 2010, then the notice of motion is to be promptly re-listed before the Registrar so that the question of stay and security for costs and any other issue can be further considered. 4. I order that Mr Snedden pay the costs to date of the notice of motion. 5 I will vacate the listing for directions. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.