Von Arnim v Health Insurance Commission (No 2)

[2003] FCA 1023

FEDERAL COURT OF AUSTRALIA

Von Arnim v Health Insurance Commission (No 2) [2003] FCA 1023

PRACTICE AND PROCEDURE – costs – solicitor and client costs for affidavits prepared to answer claim subsequently abandoned

Forester v Read (1870) 6 Ch App 40 cited
Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1985) 10 FCR 177 cited

DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARMIN v THE HEALTH INSURANCE COMMISSION AND ROBERT MILICI AND ANNE JEANETTE MAUGHAN (NO 2)
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 respondents’ costs of preparation of the five affidavits referred to in the reasons for judgment will be on a solicitor and client basis.

2.An order or declaration to the effect that the first and second respondents are entitled to:

(a)reclaim from the custody of the Magistrates Court of Victoria the following things:

(i)the two sealed cardboard Corporate Express boxes (“the boxes”) which the second respondent deposited there on 16 July 2003 in relation to search warrant 1925/03;

(ii)the folders inside the boxes;

(iii)28 discs labelled “Australian Federal Police” which the second respondent deposited there on 22 July 2003 in relation to search warrant 1925/03; and

(b)to deposit the same (keeping the same sealed as at present) with the officer in charge for the time being of the property room of the first respondent, 11th floor, 460 Bourke Street, Melbourne, pending further order of this Court or agreement between the parties.

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 respondents seek costs on a solicitor and client basis of certain affidavits, namely, the affidavits of the second respondent, Mr Robert Milici sworn 1 September 2003, of Clinton Matthew Dodds, Phillip Edwards Michael James Nguyen and Scott Parker all sworn 2 September 2003 and of Mr Milici sworn 15 September 2003.

2. The application when filed on 26 August 2003 was supported by an affidavit of the applicant, sworn on that day, which made detailed allegations about misconduct in the course of the execution of the warrant.  In particular it was said that Mr Milici and others brought with them an iMac 17-inch computer to the premises and asserted that it was the applicant's and that they had found it there. 

3. The affidavits in question, with the possible exception of the one sworn by Mr Milici on 15 September 2003, were prepared to meet that allegation.  The affidavits all made out a strong case denying the allegation of the "planting" of the computer.  When the matter came on before Finkelstein J on 2 September 2003, counsel for the applicant then indicated that the challenge to the manner of seizure of material from the applicant's premises would not proceed and that the matter would only be pressed in relation to the validity of the warrant. 

4. Counsel for the respondents argues that on that basis there should be an order for solicitor and client costs in respect of the preparation of the affidavits that I have mentioned because they were prepared to meet a serious charge which was in effect abandoned.  As an example of an award of solicitor and client costs to cover the meeting a charge improperly brought, counsel referred to Forester v Read (1870) 6 Ch App 40 at 43.

5. The mere fact that an allegation of some misconduct fails does not necessarily mean that an order for solicitor and client costs should be made against the unsuccessful party, see for example Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1985) 10 FCR 177 at 179. I think however it is appropriate in the present case to make such an order. The most likely inference to be drawn in the light of the abandonment of this claim is that the applicant had no honest belief in the genuineness of it when he made it.

6. However, the affidavit of Mr Milici sworn on 15 September 2003 stands perhaps on a different footing.  That was largely concerned with the production of the transcript of a recording of the search.  This was done after the allegations as to wrongful seizure had been effectively withdrawn.  I think that affidavit should simply be the subject of the general costs order.  There will be an order supplementary to the order for costs on the dismissal of application that the respondents' costs of preparation of the five affidavits that I have referred to will be on a solicitor and client basis.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey .

Associate:

Dated:             3 October 2003

Counsel for the Applicant:	B Monotti
Solicitor for the Applicant:	Katherine Moorhouse-Perks
Counsel for the Respondents:	P Gray
Solicitor for the Respondents:	Phillips Fox
Date of Hearing:	24 September 2003
Date of Judgment:	24 September 2003