Re Rogers, Ex parte Gersten

[1996] HCATrans 6

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M 75 of 1995

RE:  JUDITH ROGERS &   ANOR

ex parte

JOSEPH MORRIS GERSTEN

DAWSON J (In Chambers)

AT MELBOURNE, THURSDAY THE 1ST DAY OF FEBRUARY 1996

Continued from 17.1.96

MR P.J. HANKS:   Your Honour, I appear for the applicant in that matter.

MR D.J. HABERSBERGER QC:   If your Honour pleases, I appear with MR CAVANOUGH for the respondents.

HIS HONOUR:   Yes, Mr Habersberger.

MR HABERSBERGER:   Your Honour, we are here today to indicate, your Honour, that we consent an order nisi being made absolute in this matter, and we have a form of proposed order that we can hand to your Honour.

HIS HONOUR:   Having written a judgment in the matter ‑ ‑ ‑ 

MR HABERSBERGER:   Yes, we do apologise, your Honour.  I am sure it must be one of the most frustrating things for a judge to have that happen.

HIS HONOUR:   What do you say about this, Mr Hanks?

MR HANKS:   I am not quite as surprised as you, your Honour, but we have had perhaps 20 minutes notice of this matter, of the course that the respondents invite you to take.  Your Honour might think it is premature to make an order absolute until an order nisi has been made.  We had understood that the normal course would be for your Honour to make the order nisi, perhaps to make that order returnable before the Full Court as the rules provide, or perhaps remit the matter to the Federal Court.

HIS HONOUR:   There is no reason why I should not make the order absolute though, is there?

MR HANKS:   No, there is no reason in law that I can put before your Honour.

HIS HONOUR:   No.

MR HANKS:   That is the relief that the applicant seeks through the draft order nisi and the affidavit.  That was in effect, your Honour, with the substance of the application that I made before your Honour 15 days ago.

HIS HONOUR:   Yes, all right.  Well, then Mr Habersberger, it seems if there is no reason why I should not make the order I should make it.

MR HABERSBERGER:   No, your Honour. 

HIS HONOUR:   Perhaps I should open the Court first.

THE COURT:   All stand.  The High Court is now in session.  Please be seated.

HIS HONOUR: Very well, I will make the order. That is an order absolute for mandamus commanding the first respondent by himself or his delegate to consider and determine according to law the application of the prosecutor or an independent migrant class AT Visa under the Migration Act 1958, and I order that the respondents pay the prosecutor's costs of this proceeding.

MR HANKS:   One other matter perhaps, your Honour.  I think that your Honour has not certified for the attendance of counsel on the application of the order nisi.

HIS HONOUR:   I will make that ‑ ‑ ‑ 

MR HANKS:   A draft order to that effect was included in the draft order.

HIS HONOUR:   Yes, I will certify it.

MR HANKS:   Thank you, your Honour.

AT 10.39 AM THE MATTER WAS ADJOURNED
INDEFINITELY