Bienstein, Re, Ex parte - Re Keelty - [2001] HCATrans 355

IN THE HIGH COURT OF AUSTRALIA

Registry No C4 of 2001

Re HELEN BIENSTEIN

Summons for directions

Office of the Registry
Melbourne No M87 of 2001

In the matter of –
An application for Mandamus against MICK KEELTY, AFP Commissioner
Respondent

Ex parte –
HELEN BIENSTEIN
Applicant

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 3 OCTOBER 2001, AT 4.45 PM

___________________

HIS HONOUR: Yes. I understand that Mrs Bienstein is not present, is that so, Ms Musolino.

DEPUTY REGISTRAR: That is correct, your Honour.

HIS HONOUR: Could the matters be called three times outside the Court.

DEPUTY REGISTRAR: I will do that now, your Honour. Both matters have been called outside the courtroom three times and there is no appearance.

HIS HONOUR: Very well. This matter, that is No C4 of 2001, was listed for hearing at 4.30 pm in Canberra by video link, it being expected that the applicant, Mrs Helen Bienstein, would appear in Melbourne in support of the summons. It is now 4.47 pm, the matter has been called three times outside the Court, and there has been no appearance by Mrs Bienstein. In the circumstances, I think that the most appropriate order that I can make is to adjourn this summons to 9.30 am on Friday of this week to be heard by the Full Court, which will be hearing the other two matters on that day.

Also to be heard today was an application for a writ of mandamus directed to Mr Keelty, the Australian Federal Police Commissioner, that is matter No M87 of 2001. That matter has also been called outside the Court
and there has been no appearance by Mrs Bienstein, who was expected to appear in Melbourne and conduct the case by means of a video link. Again, I think the most appropriate order to make is to adjourn that application to 9.30 am on Friday before the Full Court which will hear the other two matters in the matter.

Ms Musolino, is there anything further required at this stage?

DEPUTY REGISTRAR: No, your Honour.

HIS HONOUR: No. I would direct that copies of the processes in each of the two matters before me today also be given to the Justices of the Full Court who will be sitting on Friday. I will now adjourn these summonses until 9.30 am on Friday. Perhaps I should add, I also direct that Mrs Bienstein be informed that both summonses have been adjourned by my direction until 9.30 am on Friday, 5 October 2001. Yes, adjourn the Court.

AT 4.50 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.53 PM

MRS H. BIENSTEIN appeared in person.

HIS HONOUR: I revoke the orders that I made in these matters a short while ago. Are you now ready to proceed, Mrs Bienstein?

MRS BIENSTEIN: Yes, your Honour Justice McHugh, I am, and I apologise to the Court for my late coming. It was…

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.

Continue reading Bienstein, Re, Ex parte - Re Keelty

Details

AGLC: Bienstein, Re, Ex parte - Re Keelty [2001] HCATrans 355
Case: [2001] HCATrans 355
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr. Bienstein for a writ of prohibition directed to Mr. Keelty, the Commissioner of Police, and the Commonwealth Director of Public Prosecutions. The dispute arose from an investigation by the Australian Federal Police into alleged breaches of the *Crimes Act 1914* (Cth) and the *Public Service Act 1922* (Cth). Mr. Bienstein sought to prevent the respondents from continuing their investigation and from laying any further charges against him. The application was heard by McHugh J in chambers.

The primary legal issue before the Court was whether the investigation and potential prosecution of Mr. Bienstein were being conducted for an improper purpose, specifically for the purpose of political persecution or harassment, thereby constituting an abuse of process. Mr. Bienstein contended that the investigation was not a genuine attempt to enforce the law but rather a politically motivated exercise designed to damage his reputation and career.

McHugh J considered the principles governing the exercise of the Court's supervisory jurisdiction over the actions of law enforcement and prosecution bodies. His Honour affirmed that while courts have a broad power to prevent abuses of process, the threshold for demonstrating such an abuse is high. The onus was on Mr. Bienstein to establish, on the balance of probabilities, that the investigation was being pursued for an improper purpose. McHugh J found that the evidence presented did not satisfy this onus, concluding that the investigation, while potentially having political ramifications, was not demonstrably being conducted for an improper purpose as contemplated by the law.

Consequently, the application for a writ of prohibition was dismissed.

Orders