FEDERAL COURT OF AUSTRALIA Von Arnim v The Commonwealth [2005] FCA 1788 VON ARNIM V THE COMMONWEALTH VID 1034 OF 2005 16 NOVEMBER 2005 NORTH J MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 1034 OF 2005 BETWEEN: DR ULRICH CHRISTOPHER EBERHARD FREIHERR VON ARNIM APPLICANT AND: THE HONOURABLE CHRISTOPHER MARTIN ELLISON FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT JUDGE: NORTH J DATE OF ORDER: 16 NOVEMBER 2005 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Leave to the Appellant to amend the amended Notice of Appeal dated September 6, 2005 by deleting paragraphs 14 to 22 both inclusive. 2. The notice of motion filed by the respondents on November 3, 2005 is dismissed 3. The costs of the motion to be costs in the appeal. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 1034 OF 2005 BETWEEN: DR ULRICH CHRISTOPHER EBERHARD FREIHERR VON ARNIM APPLICANT AND: THE HONOURABLE CHRISTOPHER MARTIN ELLISON FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT JUDGE: NORTH J DATE: 16 NOVEMBER 2005 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Before the court is an application by the respondents for security for costs against the appellant. In the course of the argument I suggested to Mr Monotti, counsel for the appellant, that some of the grounds in the notice of appeal seemed particularly weak. I asked him to give consideration to the state of the notice of appeal. I indicated that if the obviously weak grounds were removed, the chances of resisting the application for security for costs would probably be enhanced. Responsibly, in accordance with that invitation Mr Monotti gave the matter consideration between about 11.15 and 11.45 today. 2 Upon the application coming back on for hearing Mr Monotti indicated his client would abandon grounds 14 to 22 inclusive of the grounds contained in the amended notice of appeal filed on 6 September 2005. Consequently, the subsequent argument occurred against that background. 3 I asked Mr Monotti to address the arguments in the remaining grounds of appeal in order of the strength of those arguments as he perceived them. He referred first to the grounds of appeal at [1] and [2]. The argument proceeded upon an analysis of the judgment of the primary judge to the effect that his Honour had applied the principle that, the warrant issued by the Magistrate appeared regularly made and was to be treated as valid. Mr Monotti argued the decision of the Magistrate was an administrative not a judicial decision. Consequently, the trial judge erred in treating the issue of the warrant as a judicial decision. If this were the only ground of appeal, I would have ordered security for costs on the basis that the ground seemed hopeless. His Honour did not proceed in the way indicated by Mr Monotti. Rather at [5] and [6] his Honour made some reference to the principle of validity of regular orders. But, at [7] to [20], his Honour dealt with the arguments put by the appellant attacking the warrant and rejected them. 4 Next, Mr Monotti relied upon ground 5 of the notice of appeal. This ground does not appear to relate to any matter dealt with in his Honour's judgment. Mr Monotti explained that the meaning of this ground depended upon written submissions filed before his Honour, but those submissions were not before me. Consequently, on the material before the Court on this application, this ground cannot be sustained. 5 Next, Mr Monotti referred to the argument raised in grounds 6 to 9 of the notice of appeal. It was said the appellant had argued before the primary judge that s16 of the Extradition Act 1988 (Cth) required the Minister to act as a contradictor against the State seeking extradition. This argument was not referred to in his Honour's judgment. There was material before the Court, in the affidavit of the appellant sworn 15 November 2005 at [20] that such an argument had been put to his Honour. Consequently, there may be an argument available to the appellant that this issue was not dealt with by his Honour. Having said this, it must be recorded that I have not made any assessment of the strength or weakness of the underlying argument. Nonetheless, the appellant deserves the opportunity to contend that this argument was overlooked by his Honour, and that it may have some validity. 6 I then indicated to the parties that an appropriate order might be to require security for costs in relation to the grounds of appeal other than grounds 6 to 9 of the amended notice of appeal. In the end, the respondent did not press for an order in such terms. That course was wise. Given the history of the case there is a strong likelihood that some of the remaining grounds would be wound into the arguments concerning grounds 6 to 9, and there is some sense in allowing all the matters to be resolved once and for all. It was clear from the evidence of the appellant that he would be unable to provide security in any amount at all given his financial circumstances. 7 The parties agreed that the costs of this application should follow the appeal. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 16 November 2005 Counsel for the Applicant: Mr B Monotti Solicitor for the Applicant: Katherine Moorhouse-Perks Counsel for the Respondent: Mr B Walters S.C with Mr L Maher Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 November 2005 Date of Judgment: 16 November 2005