Ame, Ex parte - Re Battersby & Ors

[2005] HCATrans 2

[2005] HCATrans 002

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M146 of 2004

In the matter of -

An application for Writs of Habeas Corpus, Prohibition, Certiorari, Mandamus and a Declaration against SENATOR THE HONOURABLE AMANDA VANSTONE, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Ex parte –

AMOS BODE AME

Applicant/Prosecutor

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 25 JANUARY 2005, AT 9.30 AM

Copyright in the High Court of Australia

MS K. RUBENSTEIN:   If your Honour pleases, I appear for the applicant.  (instructed by Clothier Anderson & Associates)

MR H.C. BURMESTER, QC:   I appear for the Minister, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   I see from the papers that the parties are agreed on some, what appear on their face to be relatively minor, amendments to the case stated, but, Mr Burmester, the reason I called the matter on rather than simply make the amendments was – do you say anything turns on the fact that habeas is no longer sought?  We seem to be left with an application for – well, it is described as an application for writs of prohibition, mandamus and a declaration.  Now, I am not suggesting that anything does arise as a result of it, but I wanted to be quite certain before I restated the case that there was nothing said to arise as a result of the release of the applicant from detention.

MR BURMESTER:   Yes.  Your Honour, certainly from our perspective we do not consider anything arises.  We think it is still appropriate to have the case stated and ‑ ‑ ‑

HIS HONOUR:   And there is still a matter?

MR BURMESTER:   There is still a matter.  The amendments we have sought to make had that in mind.  They are designed to indicate that the outcome of this case, at the end of this case, his bridging visa will cease and that will immediately lead to him being liable to being re‑detained and removed from Australia.  In that sense we think it is still live and current and proper ‑ ‑ ‑

HIS HONOUR:   It seemed to me that there may be some question about whether prohibition was an appropriate remedy in that it is not immediately apparent to me what was to be prohibited.  Yes, I understand injunction, injunction restraining the Minister from doing certain things or not doing certain things, but prohibition seemed a little more debatable.  But so long as it is claimed that there remains a matter and the parties agree that it is appropriate that I should state a case in this form, I do not seek to place speed bumps in the way of it, Mr Burmester.

MR BURMESTER:   Your Honour, we have thought about it and as far as we are concerned there is still a real live matter.  This is not simply a…..question and its determination will have consequences, quite clear consequences, for this particular applicant.  On that basis we think it is appropriate that it continue.

HIS HONOUR:   Yes.  Ms Rubenstein, do you want to add anything to what has been said?  Are you, I assume, content that there is still a matter in which the case can be stated?

MS RUBENSTEIN:   Thank you, your Honour.  Yes, indeed.  The original order nisi application did phrase the writ of prohibition as one of or alternatively an injunction ‑ ‑ ‑

HIS HONOUR:   I understand that.  It is not instantly apparent to me what is being prohibited, but that is perhaps something that would arise when the matter ultimately comes back before a single Justice.

MS RUBENSTEIN:   Indeed, your Honour.

HIS HONOUR:   If I order that the case stated be amended in the form supplied by the parties, initialled by me, that initialled copy will remain on the file.  If I make the costs of today costs in the application and certify for the attendance of counsel, is any further order required.

MS RUBENSTEIN:   No, your Honour.

HIS HONOUR:   Then if the parties would be good enough to submit a further copy of the case stated that can become the execution copy, I will attend to that in due time and make the orders in the form I have indicated.

AT 9.35 AM THE MATTER WAS CONCLUDED