von Arnim v Health Insurance Commission [2004] FCA 1647

FEDERAL COURT OF AUSTRALIA

von Arnim v Health Insurance Commission [2004] FCA 1647 PRACTICE AND PROCEDURE – search warrant – previous order made for severance of provisions of warrant – whether documents seized under the severed provisions – jurisdiction – whether s 39B(1C) of the Judiciary Act 1903 (Cth) excludes the Court from hearing the matter.

Judiciary Act 1903 (Cth): ss 39B(1C), 39B(3)

DR ULRICH VON ARNIM v HEALTH INSURANCE COMMISSION, ROBERT MILICI, COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS, and RINGWOOD MAGISTRATES' COURT V 1506 of 2004 GOLDBERG J 13 DECEMBER 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1506 of 2004

BETWEEN: DR ULRICH VON ARNIM

Applicant

AND: HEALTH INSURANCE COMMISSION

First Respondent

ROBERT MILICI

Second Respondent

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Third Respondent

RINGWOOD MAGISTRATES' COURT

Fourth Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 13 DECEMBER 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for interlocutory relief be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1506 of 2004

BETWEEN: DR ULRICH VON ARNIM

Applicant

AND: HEALTH INSURANCE COMMISSION

First Respondent

ROBERT MILICI

Second Respondent

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Third Respondent

RINGWOOD MAGISTRATES' COURT

Fourth Respondent

JUDGE: GOLDBERG J

DATE: 13 DECEMBER 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 On 10 December 2004 the applicant filed an application naming the Health Insurance Commission, Robert Milici, the Commonwealth Director of Public Prosecutions and the Ringwood Magistrates' Court as respondents to an application in which he claimed the following: · that the respondents were treating a consent order obtained on 6 May 2003 in proceeding V 684 of 2003 before Heerey J with contempt; · that the respondents had acted contrary to a decision of Hart v Commissioner of Australian Federal Police (20 June 2003); · that the respondents were prosecuting the applicant in the Ringwood Magistrates' Court relying on documents excluded by the consent order of Heerey J; · that the respondents were aware that their conduct amounted to an abuse of process and power; and · that the respondents were aware that unless they could use those documents claimed to be excluded by the consent order the prosecution was doomed to failure. 2 By way of interlocutory relief the applicant claimed an order prohibiting the respondents from continuing with their prosecution of the applicant based upon the charges filed by the first respondent in around April and August 2004. He sought an order prohibiting the Ringwood Magistrates' Court from hearing the charges, an order instructing the first, second and third respondents to seek a dismissal of the charges and an order instructing the Ringwood Magistrates' Court to dismiss the charges. 3 The applicant has filed an affidavit in support of the material, a substantial part of which comprises assertion. Evidence was led before me this morning from Mr Milici in relation to a number of documents which were handed up by Dr von Arnim to me. In essence, Dr von Arnim's case is that documents were obtained under the search warrant by the Health Insurance Commission ("the documents"). Dr von Arnim's case is that because the documents were ordered to be returned to him they could not be used in any further proceeding by the Director of Public Prosecutions. 4 The order made by Heerey J by consent on 6 May 2004 ("the consent order") was as follows: "(1) That the two cardboard boxes containing folders and 28 discs labelled 'Australian Federal Police' referred to in paragraph 2 of the order made by the Honourable Justice Heerey on the 24 September 2003, be returned to the Applicant by delivering them to Katherine Moorehouse‑Perks, Solicitor of 187 Bluff Road, Black Rock within 5 days of making this order. (2) The hearing date of 7 May 2004 be vacated. (3) That the proceedings herein be dismissed by consent pursuant to Order 35 Rule 10 of the Federal Court Rules 1979. (4) That there be no order as to costs." 5 It was submitted by Dr Von Arnim that the consent order contained an express prohibition on the use of any material obtained under the search warrant. That is not a correct characterisation of what occurred. In his judgment published on 24 September 2003, Heerey J found that the warrant was substantially valid except for the part which was excised from the warrant by his Honour. The warrant named Annexure C as part of the Schedule to the warrant, however Annexure C was not in fact annexed to the warrant. His Honour ordered in effect that Annexure C of the warrant be severed. On appeal before the Full Court, Heerey J's decision was upheld and the appeal was dismissed. In short, the warrant was held to be valid save that there was not to be kept or retained, upon the execution of the warrant, any documents which were obtained pursuant to the severed part of the warrant, that is the terms of the warrant that included reference to Annexure C. 6 Dr von Arnim produced the documents before the Court this morning and sought the orders he sought on the basis that the documents were going to be relied upon in a case brought against him in the Ringwood Magistrates' Court the following day. Mr Milici, the informant, gave evidence before me that the documents that Dr von Arnim had produced were obtained from the archives of the Health Insurance Commission and they were not obtained as a result of the execution of the search warrant. Only one document is being relied upon in the prosecution in the Ringwood Magistrates' Court tomorrow which was obtained upon the execution of the warrant. That was not one of the documents contained in the documents handed up to me and tendered in evidence by Dr von Arnim this morning. It was also not one of the documents which fell within the excluded documents in accordance with Heerey J's reasons. It seems to me therefore that on the merits of the application by Dr von Arnim the application must fail. 7 I have dealt with the merits lest there be any thought that there was not a substantive response to the claims made by Dr von Arnim, because his allegations were serious matters to raise. I am only dealing with the interlocutory aspect of it at the moment. It was a serious matter to raise that the respondents were treating the consent order of this Court with contempt and were engaging in conduct which was an abuse of process and power. 8 There is a threshold point which must be determined which is whether I have any jurisdiction to hear the matter. The original jurisdiction of this court is found in the Judiciary Act 1903 (Cth). In particular, in s 39B of the Judiciary Act the original jurisdiction of the Federal Court of Australia or part of that jurisdiction is set out. It includes jurisdiction in respect of a number of matters where a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. 9 However, s 39B(1C)(c) provides that "Subject to subsection (1D)" – that is not relevant for present purposes: "… at any time when: (a) a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before a court of a State or Territory; or (b) an appeal arising out of such a prosecution is before a court of a State or a Territory; the following apply: (c) the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision." 10 The expression "a related criminal justice process decision" is defined in s 39B(3) and it includes a number of decisions which include, in particular, s 39B(3)(d): "a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses;" What Dr von Arnim is seeking in effect is an order restraining the informant and the Director of Public Prosecutions from making or continuing with the decision to tender the documents to which he has referred in the Ringwood Magistrates' Court. 11 I am satisfied that the subject matter of his application falls within the exclusion in s 39B(1C) and that this Court does not have jurisdiction in respect of the subject‑matter of his interlocutory application, which is the only application with which I am dealing this morning. 12 If I had had jurisdiction, for the reasons to which I have already referred, I would not have granted the relief sought and would have dismissed the application for interlocutory relief on the basis that it was misconceived. The documents in respect of which Dr von Arnim is concerned are not documents which have been obtained by the respondents or any of them pursuant to the search warrant to which he has referred, but have come from the archives of the Health Insurance Commission. 13 The application for interlocutory relief will be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.