Render v Former Commonwealth Police Commissioner (Whitrod)

Proceedings founded on alleged crimes or assaults committed in Australia are not made justiciable in England merely because the alleged defendant is said to be an employee of the Commonwealth Crown. Where any substantive claim must be pursued in Australia, commencing proceedings in England may constitute an abuse of process. The court may also take account of the extreme age of the allegations and the absence of supporting evidence.

The claimant alleged that she had been abducted and assaulted in Australia in the 1960s, and that subsequent events led to her deportation. Earlier proceedings based on the same allegations had been dismissed. On 5 May 2004, His Honour Judge Walton dismissed the present claim on the papers for lack of reasonable grounds or, alternatively, as an abuse of process. On 17 June 2004, he refused to set aside that order and refused permission to appeal. The claimant applied to the Court of Appeal for permission to appeal. The central issues were whether the claim could be pursued in England and whether the proceedings were an abuse of process.

Sir Swinton Thomas refused permission to appeal. The reasoning was as follows:

1. Nature of the claim. The allegations concerned events said to have occurred in Australia approximately 40 years earlier. There was no evidence before the Court of Appeal supporting the claims.
2. Territorial jurisdiction. Even assuming that the defendant was an employee of the Crown of the Commonwealth, that status did not make a crime or assault committed in Australia justiciable in the courts of England. If the allegations had substance, the claims had to be heard in the courts of Australia.
3. Abuse of process. Bringing the proceedings in England was an abuse of the court’s process. The application for permission to appeal was therefore refused, leaving the proceedings struck out. [2004] EWCA Civ 1768

1. Court of Appeal (Civil Division): On 23 November 2004, permission to appeal was refused.
2. High Court, Queen’s Bench Division, Newcastle upon Tyne District Registry: His Honour Judge Walton dismissed the claim on 5 May 2004 and, on 17 June 2004, refused to set aside the order and refused permission to appeal.