Von Arnim v Health Insurance Commission

[2003] FCA 1003

FEDERAL COURT OF AUSTRALIA

Von Arnim v Health Insurance Commission [2003] FCA 1003

WARRANT – application for judicial review of issue of search warrant – reference in body of warrant to "Attachment C" but no attachment – whether invalid portions of warrant can be severed – whether statement of purpose of warrant too vague or wide

Health Insurance Commission Act 1973 (Cth) s 8Y
Judiciary Act1903 (Cth) s 39B
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 11 (1)(c), 3(b)(iii)
Acts Interpretation Act 1901 (Cth) s 46 (1)(b)

Coward v Allen (1984) 52 ALR 320 cited
Parker v Churchill (1985) 9 FCR 316 cited
R v Ng (2002) 5 VR 257 cited
Williams v Keelty (2000) 111 FCR 175 followed

DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARMIN v THE HEALTH INSURANCE COMMISSION AND ROBERT MILICI AND ANNE JEANETTE MAUGHAN
V684 of 2003

HEEREY J
24 SEPTEMBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V684 OF 2003

BETWEEN:

DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM
APPLICANT

AND:

THE HEALTH INSURANCE COMMISSION
FIRST RESPONDENT

ROBERT MILICI
SECOND RESPONDENT

ANNE JEANETTE MAUGHAN
THIRD RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

24 SEPTEMBER 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The time for application for review be extended.

2.        The application is  dismissed with costs.

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	V684 OF 2003

BETWEEN:

DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM
APPLICANT

AND:

THE HEALTH INSURANCE COMMISSION
FIRST RESPONDENT

ROBERT MILICI
SECOND RESPONDENT

ANNE JEANETTE MAUGHAN
THIRD RESPONDENT

JUDGE:	HEEREY J
DATE:	24 SEPTEMBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant seeks review of the decision of the third respondent, a Victorian magistrate, to issue a search warrant pursuant to s 8Y of the Health Insurance Commission Act 1973 (Cth) (The Act). The application is brought, relevantly for present purposes, under s 39B of the Judiciary Act1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). Section 8Y relevantly provides as follows:

   “(1) If:

   (a)   an information on oath is laid before a magistrate alleging that an authorised officer suspects on reasonable grounds that there may be on or in any premises particular evidential material; and

   (b)   the information sets out those grounds;

   the magistrate may issue a search warrant in respect of the premises.

   …
              (4) The magistrate is not to issue the warrant unless:

   (a)the informant or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sough; and

   (b)the magistrate is satisfied that there are reasonable grounds for issuing the warrant; and

   (c)the magistrate is satisfied that execution of the warrant will not cause an unreasonable invasion of any patient’s privacy.

   (5) There must be stated in the warrant:

   (a)   the purpose for which the warrant is issued, and the nature of the offence in relation to which the entry and search are authorised; and

   (b)   whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and

   (c)    a description of the kind of evidential material to be seized; and

   (d)   a day, not later than 7 days after the day of issue of the warrant, upon which the warrant ceases to have effect; and

   (e)    whether or not the warrant authorises the exercise of powers in relation to records containing clinical details relating to patients.”

2. The warrant was issued on 14 July 2003 and this proceeding was not commenced until 26 August 2003. Thus the application is outside the time limited fixed AD(JR) Act, s 11 (1)(c) and 3(b)(iii). No objection was made to an appropriate extension of time.

3. The third respondent issued the warrant after an affidavit sworn by the second respondent Mr Robert Milici, an officer of the first respondent the Health Insurance Commission (the Commission), was placed before her. 

4. In the affidavit Mr Milici asserted that the applicant was formally a registered medical practitioner in Germany.  He has not been able to obtain registration as a practitioner in Australia.  He obtained sub-contract employment as an intravenous technician at a medical centre in Mount Waverley conducted by Dr Valerie Cole.  While working at that clinic the applicant made use of a provider number of Dr Cole’s husband Dr Peter Cole.  Dr Peter Cole is a thoracic surgeon who rarely uses the provider number as he generally does not see patients at the clinic. 

5. It is alleged in Mr Milici’s affidavit that the applicant has defrauded the Medicare scheme by lodging receipts for services that were not provided by the doctor identified on the receipt.  This is suspected to have occurred in two ways.  First, the applicant collected payments from patients and provided them with a receipt in Dr Peter Cole’s name to allow them to be reimbursed through Medicare.  Secondly, the applicant created false receipts for services provided to himself and members of his family and claimed cash refunds through Medicare which were then directly transferred to the bank account of a company controlled by him.

6. In the affidavit it was said:

   “11.6  The patients named in the schedule marked Annexure C total 27.  This list indicates the patients identified to date where suspected false claims have been made and in includes VON ARNIM and his family…”

   Annexure ‘C’ is a table containing a list of twenty-seven individuals with surname and Christian name and Medicare card number.

7. The warrant was in the usual “three condition” form.  It authorised Mr Milici to search for things which satisfied three stated conditions, to wit (emphasis added):

   “FIRST CONDITION: Things which are:

   Originals or copies of any one or more of the following including any of them that are stored on a computer or a computer storage device, or on any other type of storage medium or storage device:

   i.         Invoices or receipts for provision of medical services.

   ii.Patient history and/or treatment files (including handwritten notes) and/or any records of patients referred to in Annexure ‘C’.

   iii.Diaries, notebooks, receipts and any written material connected with medical services identified as having been provided by Dr Peter COLE to patients referred to in Annexure ‘C’.

   iv.Appointment books, office diaries, office memos and office instructions.

   v.Financial records and bank transaction details regarding Ulrich VON ARNIM’s personal bank accounts.

   vi.Financial records and bank transaction details relating to World Information Services and Relief Organisation Proprietary Limited (WISRO Pty Ltd).

   SECOND CONDITION: Things that relate to any one or more of the following:

   i.Invoices or receipts for medical services created by Ulrich VON ARNIM.

   ii.Invoices/Receipts for medical services provided to Ulrich VON ARNIM, his wife Vida VON ARNIM and his children Christoph, Carsten and Christine VON ARNIM.

   iii.The patients of Dr Peter COLE whose names and Medicare Numbers are attached hereto and marked Annexure ‘C’.

   iv.Invoices or receipts for the provision of medical services by Dr F. RUDOLPH (or RUDOLF).

   v.Financial records and bank transaction details and statements regarding Ulrich VON ARNIM and his family’s personal bank accounts, and any transaction relating to World Information Services and Relief Organisation Proprietary Limited (WISRO Pty Ltd).

   THIRD CONDITION:  Things as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following offences against the laws of the Commonwealth which are relevant offences within the meaning of Part IID of the Act:

   Offences committed by Ulrich Von Arnim between 1 October 2002 and 18 June 2003 of knowingly making or authorising the making of statements that are false or misleading in a material particular and capable of being used in connection with claims for benefits or payments under the Health Insurance Act 1973 contrary to in contravention of Section 128B(1)) of the said Act.

   Including any storage medium or storage device which contains any of the above things and any manual, instruction, pass word or other thing which is needed to gain access to or interpret or decode any of the above things.”

8. The warrant did not have attached to it an Annexure ‘C’ either in the form of Annexure ‘C’ to Mr Milici’s affidavit before the magistrate, or at all.  In an affidavit sworn in the present proceeding Mr Milici deposed:

   “The reference to Annexure ‘C’ in the warrant was a typing error which arose in the preparation of the warrant.  In preparing the warrant on computer, I copied and pasted sections of type from my affidavit in support of the warrant.  Whilst doing this word processing, I inadvertently failed to delete the reference to Annexure ‘C’ which appeared in the affidavit in support of the warrant.  Annexure ‘C’ was not intended to form part of the warrant itself.”

9. The warrant was executed at the applicant’s home at 15 Ranfurlie Road Forrest Hill on 16 July 2003.  Although the application includes a claim that the decision to seize material at the premises was invalid, at the hearing before me the only matter in contention was the validity of the warrant.

10. Counsel for the applicant made a number of submissions. 

    Statements of Purpose and Nature of Offence

11. It was said that the statements of purpose and nature of offence were so wide and vague as to be incapable of complying with the requirements of s 8Y (5)(a).

12. The warrant states:

    “This warrant is issued for the purpose of authorising the authorised officer specified above [i.e. Mr Milici], with such assistance and by such force as is necessary and reasonable, to enter the premises specified in this warrant, to search for evidential material of the kind described in this warrant, being evidential material relating to the offences specified in the warrant, and to cease any such material that may be found.”

13. There is no doubt that the premises specified in the warrant, that is to say 15 Ranfurlie Road Forrest Hill Victoria, are sufficiently identified.  Provided the evidential material is sufficiently identified, I see no lack of specificity of purpose.

14. The warrant identifies the relevant offences as follows:

    “Offences committed by Ulrich Von Arnim between 1 October 2002 and 18 June 2003 of knowingly making or authorising the making of statements that are false or misleading in a material particular and capable of being used in connection with claims for benefits or payments under the Health Insurance Act 1973 contrary to s 128B(1) of the said Act.”

    This quite clearly identifies a particular offence by reference to the statutory provision.  It identifies the dates on which and the person by whom the offence is alleged to have been committed.  There is in my opinion adequate description.

    Description of Material to be seized

15. Counsel submitted that there is no date range for any of the items.  However, provided the document or thing to be seized is sufficiently identified as so that things found in the search can be checked to see whether or not they answer that description in the warrant there is sufficient identification.  That has been clearly achieved in the warrant.  For example, on the face of it there would seem to be no difficulty in determining whether or not a document answers the description of an invoice or receipt for provision of medical services.  If it did, whether such document bore a particular date would not create any uncertainty as to whether or not the document fell within the description in the warrant.

16. In connection with this particular attack on the warrant, counsel for the applicant relied on the absence of Annexure ‘C’.  However, in my opinion, the only effect of this is that items (ii) and (iii) of the first condition and (iii) of the second condition can be severed.  It is well established that invalid parts of a warrant can be severed if this can be done without affecting the remaining parts: Coward v Allen (1984) 52 ALR 320 at 334, Parker v Churchill (1985) 9 FCR 316 at 321-322. This can occur even though the warrant has been executed; Malubel Pty Ltdv Elder (No 2) (1998) 73 ALJR 269 at [3]. In this regard reliance can also be based on s 46 (1)(b) of the Acts Interpretation Act 1901 (Cth): R v Ng (2002) 5 VR 257 at [56].

17. A decision on very similar facts is that of Hely J in Williams v Keelty (2000) 111 FCR 175 at [145]-[154]. The warrant in question in that case included as part of the description of the second condition “things” the following

    “Things which relate to any one or more of the following:
     (a) HIH Insurance Limited (‘HIH’) and its subsidiaries as detailed in Attachment A (‘the HIH Insurance Group’), including HIH Casualty and General Insurance Limited (‘HIHC’), FAI Insurances Ltd (‘FAI’)”

    The document referred to as Attachment A was not in fact attached to the warrant.
    Hely J said (at [152]):

    “It is clear that the issuing officer intended to issue a warrant which incorporated Attachment A.  The failure to physically attach that document to the warrant means that his intention has miscarried.  This is not the usual case in which the warrant is in the form intended by the issuing officer but, as a matter of law, the warrant is good in part and effective in part, such that the defective part is severed from the warrant.  Nevertheless, severance principles are applicable because the warrant is partially defective.  It does not matter that the defect arrises from failure to attach a document, rather than from some misconception of the extent of the relevant power.”

18. The reasoning of Hely J is applicable to the present case.  It might be said in the present case that in issuing the warrant the magistrate failed to take into account a relevant consideration, namely that the list of names in Annexure ‘C’ referred to Mr Milici’s affidavit and in the body of the warrant, was not in fact attached to the warrant.  However, for the reasons explained by Hely J, that does not invalidate the decision to issue the warrant.  After deleting the items referring to Annexure ‘C’ there remains a valid warrant which the magistrate intended to issue and in respect of which there was information reasonably supporting the issue.

    Date of Warrant

19. It was submitted that the date on the warrant was illegible and therefore the warrant did not specify a day not later than seven days after the date of issue upon which the warrant ceased to have effect.  This is a question of fact.  The warrant was in evidence.  The date 14 July 2003 has been hand written in and is in my opinion quite legible. 

    Conclusion

20. The time for application for review will be extended.  The application will be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey .

Associate:

Dated:             22 September 2003

Counsel for the Applicant:	B Monotti
Solicitor for the Applicant:	Katherine Moorhouse-Perks
Counsel for the Respondents:	A L Cavanough QC and P Gray
Solicitors for the Respondents:	Phillips Fox
Date of Hearing:	15 September 2003
Date of Judgment:	24 September 2003