Linhart, H.R. & Anor v Elms, E.E. & Ors [1987] FCA 676

Linhart, H.R. & Anor v Elms, E.E. & Ors [1987] FCA 676

The Federal Court has power under s.15 of the Administrative Decisions (Judicial Review) Act 1977 to suspend warrants of committal and effectively grant bail to applicants committed under s.17(6) of the Extradition (Foreign States) Act 1966, pending the final hearing of the application for review, and the applicants satisfied the court that bail should be granted subject to conditions.

Parties
Applicant: Harold Rolf Linhart; Applicant: Paula Bongart; First Respondent: Elwyn Edgard Ernest Elms; Second Respondent: The Honourable Lionel Bowen, Attorney General for the Commonwealth of Australia; Third Respondent: The Federal Republic of Germany
Jurisdiction
Australia
Judgment Date
26 November 1987
Procedural Posture
Application for Judicial Review and Bail / Interlocutory Application for Bail Pending Review
Outcome
Application for bail granted pending review; warrants of committal suspended on conditions
Legal Topics
Bail Pending Review, Power of the Federal Court Under S.15 Administrative Decisions (judicial Review) Act, Implied Exclusion of Jurisdiction, Operation of S.17(6) Extradition (foreign States) Act 1966
Extradition Administrative Law Bail Pending Review Power of the Federal Court Under S.15 Administrative Decisions (judicial Review) Act Implied Exclusion of Jurisdiction Operation of S.17(6) Extradition (foreign States) Act 1966

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Parties

Harold Rolf Linhart

Applicant

Paula Bongart

Applicant

Elwyn Edgard Ernest Elms

First Respondent

The Honourable Lionel Bowen, Attorney General for the Commonwealth of Australia

Second Respondent

The Federal Republic of Germany

Third Respondent

Procedural Posture

Application for Judicial Review and Bail / Interlocutory Application for Bail Pending Review

Legal Issues

  1. 1 Whether the Federal Court has power under s.15 of the Administrative Decisions (Judicial Review) Act 1977 to grant bail to persons committed under s.17(6) of the Extradition (Foreign States) Act 1966 pending determination of an application for review
  2. 2 Whether the Extradition (Foreign States) Act 1966 provides an exclusive code excluding such a power from the Federal Court

Ratio Decidendi

The Federal Court has power under s.15 of the Administrative Decisions (Judicial Review) Act 1977 to suspend warrants of committal and effectively grant bail to applicants committed under s.17(6) of the Extradition (Foreign States) Act 1966, pending the final hearing of the application for review, and the applicants satisfied the court that bail should be granted subject to conditions.

Court Disposition

Application for bail granted pending review; warrants of committal suspended on conditions

Orders

  • Operation of warrants of committal under s.17(6) Extradition (Foreign States) Act 1966 suspended until final determination of the application for review or further order
  • Applicants not to apply for return of their passports or for fresh passports