Ame, Ex parte Re Battersby & Ors - [2004] HCATrans 361

[2004] HCATrans 361

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 RICHARD BATTERSBY, THE DIMIA MANAGER OF THE VILLAWOOD DETENTION CENTRE
First Respondent
GREG HOWDEN, THE GENERAL MANAGER OF GLOBAL SOLUTIONS LIMITED
Second Respondent
SENATOR THE HONOURABLE AMANDA VANSTONE, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Third Respondent

Ex parte –
AMOS BODE AME
Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 21 SEPTEMBER 2004, AT 9.30 AM

(Continued from 24/8/04)

__________________

MS K. RUBENSTEIN: If the Court pleases, I appear with my learned friend, MR C.J. HORAN, for the applicant. (instructed by Clothier Anderson & Associates)

MR G.R. KENNETT: If the Court pleases, I appear for the respondents. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Dr Rubenstein.

MS RUBENSTEIN: If your Honour pleases, the parties have, at the direction of the Court, come to an agreed statement of facts since the matter being adjourned at our last hearing. Mr Kennett, my learned counsel – his colleague is, I think, getting copies to be able to hand them up to your Honour. Then subject to your Honour’s decision in the application for the grant of order nisi, the applicant has an application for an interlocutory order.

HIS HONOUR: Yes. Let us deal with this question of agreed facts, Mr Kennett.

MR KENNETT: Yes. Your Honour, I can hand up a statement of the facts that have been agreed which, so far as I am aware, and I think my learned friends would agree, are sufficient to crystallise the legal issue between us.

HIS HONOUR: As to paragraph 1, that, I think does not take account of the Papua and New Guinea Act 1949 (Cth), the validity of which was considered in Fishwick v Cleland (1960) 106 CLR 186, which led, I think, to the creation of the single Territory of Papua New Guinea administered jointly.

MR KENNETT: Yes. Your Honour, some of that background is recited in paragraph 4. It is taken from the preamble to the Papua New Guinea Independence Act. There seems to have remained a distinction between Papua, which was formerly an Australian Territory, and New Guinea, which was formerly a trust Territory. The applicant, we would agree, was born in Papua, which was a Territory of Australia.

HIS HONOUR: Does this statement of proposed agreed facts constitute the whole of the facts which either party would contend is relevant to the grant of the relief or the question of whether relief of the kind sought should be granted?

MR KENNETT: It is always, of course, difficult to give a guarantee, your Honour, but, as we understand the case at the moment, the answer, at least from my side, is yes.

HIS HONOUR: Does that caveat suggest that rather than make the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] HCATrans 361
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ame for leave to appeal to the High Court of Australia against a decision of the Supreme Court of Victoria. The application arose from proceedings in the Supreme Court concerning the administration of the estate of the late Mr. Battersby.

The primary legal issue before Hayne J was whether the applicant, Ame, had demonstrated that the judgment of the Supreme Court involved a question of law that was of such importance as to warrant the grant of special leave to appeal to the High Court. This required consideration of whether the Supreme Court's decision had misconstrued or misapplied any relevant legal principles or statutory provisions in its determination of the administration of the estate.

Hayne J considered the arguments presented by the applicant regarding the alleged errors in the Supreme Court's judgment. His Honour's reasoning focused on whether the applicant had established a sufficient arguable case of error in law, particularly in relation to the interpretation and application of the relevant legislation governing the administration of deceased estates. After reviewing the materials and submissions, Hayne J concluded that the applicant had not satisfied the threshold for the grant of special leave.

Consequently, Hayne J dismissed the application for special leave to appeal.

Orders