Adamson v Commissioner of Police for NSW [2008] NSWSC 789

New South Wales Supreme Court

CITATION : Adamson v Commissioner of Police for NSW [2008] NSWSC 789

HEARING DATE(S) : 28 July 2008

JUDGMENT DATE : 4 August 2008

JURISDICTION : Common Law

JUDGMENT OF : Harrison AsJ

DECISION : (1) The plaintiff is to pay the defendant's costs to date. These costs include the costs of this motion. (2) The matter is to be listed for a status conference before the Registrar on 25 August 2008 at 9.00am.

CATCHWORDS : COSTS - Discontinuance

LEGISLATION CITED : Uniform Civil Procedure Rules

CATEGORY : Procedural and other rulings

Fordyce v Fordham & Anor [2006] NSWCA 274; (2006) NSWLR 497 CASES CITED : Greer v The Comjmissioner of Police [2002] NSWSC 356 Tye v The Commissioner of Police (1995) 84 A Crim R 147

PARTIES : Christopher Michael Adamson (Plaintiff) Commissioner of Police for New South Wales ( Defendant)

FILE NUMBER(S) : SC 15734/2006

COUNSEL : Mr C Lonergan (Defendant)

SOLICITORS : C Adamson (Plaintiff in person) Crown Solicitor ( Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 4 AUGUST 2008

15734/2006 - CHRISTOPHER MICHAEL ADAMSON v COMMISSIONER OF POLICE FOR NEW SOUTH WALES

JUDGMENT (Costs: discontinuance) 1 HER HONOUR: By notice of motion dated 14 March 2008, the plaintiff seeks firstly, an order that the defendant pay the plaintiff's costs of the proceedings up to the making of and the performance of the orders made by his Honour Justice Adams on 8 December 2006 and the return of property to the plaintiff as of the date of these orders; secondly, that the plaintiff pay the defendant's costs of these proceedings not otherwise the subject of costs orders; and thirdly, that the plaintiff be granted leave to discontinue on the terms of the costs orders. 2 The defendant opposes the orders sought and seeks his costs to date and the costs of this motion. If the ultimate result is that this Court orders that the plaintiff pay the defendant's costs to date, then the plaintiff does not want to discontinue the proceedings. He will proceed to a substantive hearing. Thus, his filing of a notice of discontinuance is conditional upon him being awarded costs in his favour for part of the proceedings. 3 The plaintiff is Christopher Michael Adamson. The defendant is the Commissioner of Police for New South Wales. The plaintiff did not rely upon any evidence. The defendant relied on an affidavit of Emma Louise Sullivan dated 6 June 2008. 4 On 22 September 2005, a police officer obtained a search warrant to search the plaintiff's premises at Nabiac. On 23 September 2005, the search warrant was executed and goods were seized, including a laptop computer. Between 28 September 2005 and 17 October 2006, the plaintiff corresponded with the Police and the Department of Public Prosecutions seeking the return of his laptop. He advised the Police that there were confidential client files and business records stored on the computer. On 23 June 2006, the plaintiff sought that the hard drive be copied and the laptop be returned to him (see Ex A). 5 By summons filed 23 November 2006, the plaintiff sought the following: "1. A declaration that the plaintiff is presently entitled to have returned to him all of the following property taken and seized by the defendant from the plaintiff's residence at xxx xxxxxxx xxxx Nabiac NSW on or about the 23 September 2005 purportedly pursuant to a search warrant dated 22 September 2005 which purports to have been issued pursuant to the Search Warrants Act 1985 of NSW: (i) All documents taken except any which are reasonably capable of being relevant to the remaining charges, if any, laid against the plaintiff; and (ii) The sharp laptop computer." 6 The second paragraph (1) is in similar terms but seeks an order that the documents and laptop be returned forthwith. 7 Paragraph (2) seeks: "2. That, except with the leave of the Court, no further use be made of the documents or the sharp laptop computer or any copies taken or of any information gained from the documents or the sharp laptop computer or its hard drive or any copies thereof copies taken and seized from the plaintiff's residence on or about 23 September 2005 by the defendant except such documents or copies thereof or information gained from such documents or the sharp laptop or its hard drive as are reasonably capable of being relevant to the remaining charges, if any, presently laid against the plaintiff."