Federal Court. May the extent of what a habeas corpus applicant is required to demonstrate to secure his/her release have regard to the extent to which knowledge of relevant matters is in the hands of the detainer? Can an action for false imprisonment be brought by a person who has no basis at all for a view that the detention was not lawfully justified? In a claim for false imprisonment, must the applicant negative a defence which the respondent may have? In other words, is the lack of a defence an element of the tort?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: May the extent of what a habeas corpus applicant is required to demonstrate to secure his/her release have regard to the extent to which knowledge of relevant matters is in the hands of the detainer?
Question 2: Can an action for false imprisonment be brought by a person who has no basis at all for a view that the detention was not lawfully justified?
Question 3: Are habeas corpus cases different in character to false imprisonment cases?
Question 4: If the answer to Question 3 is 'yes', can it be said that in both types of cases the applicant bears an initial burden of proof?
Question 5: Can a party who suspects that there is a basis for a claim of false imprisonment avail themselves of the procedures for pre-action discovery?
Question 6: Is the plea of lawful authority by a Respondent to a claim of false imprisonment to be viewed as a defence?
Question 7: Both in claims of both habeas and false imprisonment, is the absence of lawful authority an element of the claim, with the onus of proving lawful authority falling upon the respondent?
Question 8: In a claim for false imprisonment, must the applicant negative a defence which the respondent may have? In other words, is the lack of a defence an element of the tort?
Question 9: Can it be said that, "in some cases, there may be a sufficient foundation to bring a claim for false imprisonment because the person has been detained and simply has no idea why because the detainer has provided no indication at all as to what the lawful justification may be (or because the detained person has made an inquiry as to the basis for the detention and has received no intelligible explanation)"?
Question 10: If the answer to Question 9 is 'yes', can it be said that "the present case is not of that kind because the applicant knows the provisions of the Migration Act concerned with the detention of unlawful non-citizens that are those upon which the Commonwealth relies"?
Question 11: Can it be said that "the length of the applicant's detention when measured against the nature and extent of the authority conferred by the provisions of the Migration Act to detain a person who is an unlawful non-citizen is itself a basis to infer that his detention has been unlawful"?
The FCA answered those questions as follows: