FEDERAL COURT OF AUSTRALIA

Williams v Minister for the Environment & Heritage [2003] FCA 627

ADMINISTRATIVE LAW – judicial review of Minister’s decision refusing to make emergency declaration under s 9 of Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) protecting Aboriginal area and objects – decision to refuse set aside and matter remitted to Minister for reconsideration – whether Aboriginal who applied for the declaration (and succeeded on application for judicial review) entitled to injunction under s 16(1)(d) of Administrative Decisions (Judicial Review) Act 1977 (Cth) restraining mining company from exploring or mining on land pending reconsideration by Minister – whether applicant needed to have right to injunction under general law principles – Johns v Australian Securities Commission (1993) 178 CLR 408 applied.

PRACTICE AND PROCEDURE – application for interlocutory injunction preserving subject matter of appeal – Court’s inherent or implied power to grant such injunction – whether single Judge in original jurisdiction of Court has power to grant such injunction – whether injunction may be granted only by Full Court in appellate jurisdiction.

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 9

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 16(1)(d)

Federal Court Act 1976 (Cth) s 23

Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 137 ALR 28 cited

Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 461 cited

Bercove v Hermes (No.2) (1983) 51 ALR 105 followed

Brisbane Gas Co Ltd v Hartogen Energy Ltd (1982) 60 FLR 343 cited

Dwyer v National Companies and Securities Commission (No 2) (1988) 15 NSWLR 285 cited

Erinford Properties Ltd v Cheshire County Council [1974] Ch 261 followed

FAI Insurances Ltd v Registrar of Workers’ Compensation Commission of New South Wales [1982] 1 NSWLR 239 cited

John Fairfax & Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510 (CA) cited

Fulcher v Hilt (1985) 66 ALR 96 cited

Hempel v Moore (1987) 70 ALR 714 followed

J v L & A Services Pty Ltd [1993] 2 Qd R 380 cited

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 cited

Johns v Australian Securities Commission (1992) 35 FCR 146 referred to

Johns v The Australian Securities Commission (1993) 178 CLR 408 applied

Re Macks; ex parte Saint (2000) 204 CLR 158 referred to

McMillan v Hambledon Nominees Pty Ltd (No 2) [1991] 1 Qd R 118 cited

The Marconi’s Wireless Telegraph Co Ltd v The Commonwealth (1913) 16 CLR 384 cited

In re Marks and Federated Ironworkers’ Association (1981) 55 ALJR 395 cited

NAMU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 999 followed

North Flinders Mines Ltd v Hartogen Energy Ltd (1988) 52 SASR 14 followed

Orion Property Trust Ld v Du Cane Court Ltd [1962] 1 WLR 1085 cited

Otto v Lindford (1881) 18 ChD 394 referred to

Paringa Mining & Exploration Company plc v North Flinders Mines Ltd (1988) 165 CLR 452 cited

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 1] (1998) 72 ALJR 868 cited

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 2] (1998) 72 ALJR 869 cited

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 cited

Patton v Minister for Defence (1987) 13 FCR 476 referred to

Polini v Gray (1879) 12 ChD 438 discussed

Rahme v Commonwealth Bank of Australia (1993) 117 ALR 618 cited

Sibuse Pty Ltd v Shaw [No 2] (1988) 13 NSWLR 125 CA) cited

Simsek v MacPhee (1982) 148 CLR 636 cited

Stack v Coast Securities (No 9) Pty Ltd (1983) 46 ALR 451 cited

Stirling Harbour Services Board v Bunbury Port Authority (No. 2) [2000] FCA 87 followed

Tait v The Queen (1962) 108 CLR 620 cited

Territory Insurance Office v Costa (2002) 36 MVR 275 followed

Timar v Minister for Justice and Customs [2001] FCA 295 cited

Tuncak v Young (1987) 14 ALD 286 followed

Wilson v Church (1879) 11 ChD 576 discussed

Wilson v Church (No. 2) (1879) 12 ChD 454 discussed

Keith Mason QC  “The Inherent Jurisdiction of the Court” (1983) 57 ALJ 449

NEVILLE WILLIAMS v MINISTER FOR ENVIRONMENT & HERITAGE

AND BARRICK AUSTRALIA LIMITED

N 192 OF 2003

LINDGREN J

3 JUNE 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The motion brought by notice of motion filed on 30 May 2003 be dismissed.  

2.         The applicant pay the respondent’s costs of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant, Neville Williams (“Mr Williams”), has filed a notice of motion on 30 May 2003 in proceeding N 750 of 2003 (“the appeal proceeding”) seeking an urgent interim interlocutory order restraining the second respondent, Barrick Australia Ltd (“Barrick”), in the terms set out in paragraph 3 of the notice of appeal by which that proceeding was commenced (also on 30 May 2003).  By that paragraph Mr Williams seeks, purportedly under s 23 of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”), an order restraining Barrick from:

“carrying out any activity which involves the excavation, disturbance, collection, desecration, damage or destruction to [sic] any Aboriginal Object or Area upon land that is described as MLA 45, including the movement of any heavy or tracked wheeled vehicles on or across the land at the Lake Cowal Project until further order.” 

2                     The appeal proceeding arises out of a judgment given by Wilcox J, also on 30 May 2003, in this present proceeding.

BACKGROUND

3                     In this proceeding Mr Williams applied under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) for review of a decision of the first respondent (“the Minister”).  The decision was a decision not to make a declaration under s 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (“the ATSIHP Act”) in relation to land at Lake Cowal in central New South Wales.

4                     Section 9 of the ATSIHP Act provides as follows:

“(1)     Where the Minister:

(a)       receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and

(b)       is satisfied:

(i)                 that the area is a significant Aboriginal area; and

(ii)               that it is under serious and immediate threat of injury or desecration;

he may make a declaration in relation to the area.

(2)       Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.

(3)       The Minister may, if he is satisfied that it is necessary to do so, declare that a declaration made under subsection (1) shall remain in effect for such further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.”

Section 9 provides for “emergency declarations” whereas s 10 provides for the making of other declarations.  Section 10 stipulates that it is a condition of the Minister’s power to make a declaration under that section that he has first received a report dealing with certain matters.  The scheme of the two sections seems to be that s 9 provides for a holding protective measure where the threat is of injury or desecration so imminent that there is insufficient time for the procedure required by s 10 to be followed. 

5                     Section 22 of the ATSIHP Act provides that a person who contravenes a provision of a declaration made by the Minister is guilty of an offence and is punishable accordingly.  Section 26 provides for the granting of injunctive relief where this Court is satisfied, on the application of the Minister, that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute a contravention of a provision of a declaration.

6                     I need not discuss the defined terms which occur in s 9, except for the word “Aboriginal”.  Section 3 of the ATSIHP Act defines “Aboriginal” to mean:

“A member of the Aboriginal race of Australia and includes a descendant of the indigenous inhabitants of the Torres Strait Islands.”

It is important, for my reasoning later, to note that s 9 gives standing to apply for a declaration to any Aboriginal.  Mr Williams is Aboriginal.  His standing to apply to the Minister consisted of that fact alone, and did not depend on any association of any kind which he many have with the area of land in central New South Wales with which this case is concerned (“the Specified Area”).

7                     In fact Mr Williams is a member of the Wiradjuri People.  He is also Chairman of the Mooka Traditional Owners Council (“the Mooka Council”), an incorporated association which purports to represent the interests of Wiradjuri People who live near Lake Cowal.  The Mooka Council claims that those people are the traditional owners of the Specified Area.  The Wiradjuri Council of Elders, which purports to represent the interests of all Wiradjuri People, does not accept the Mooka Council’s claims.

8                     On 17 October 2002 Mr Williams applied to the Minister for a declaration under s 9 in relation to the Specified Area.  There was a proposal for the Specified Area to be the subject of a mining lease to be granted by the State of New South Wales to Barrick (then called “Homestake Australia Ltd”).  (Apparently the lease was subsequently granted.)

9                     The Minister invited Barrick to respond to Mr Williams’s application for a declaration and it did so.  On 9 December 2002 the Minister noted his decision not to make the declaration sought.

10                  Mr Williams’s application for judicial review of the Minister’s decision was heard by Wilcox J on Tuesday 21 May 2003.  In the course of the hearing it became clear that Mr Williams wished to seek an injunction against Barrick.  Accordingly, Barrick was joined as second respondent.

11                  Last Friday, 30 May 2003, in a reserved decision, his Honour published reasons for judgment and made the following orders:

“1.       It be declared that the decision of the first respondent, the Minister for the Environment and Heritage (“the Minister”), dated 9 December 2002 to refuse to make a declaration pursuant to s 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is invalid.

2.         The said decision be set aside. 

3.         The application of the applicant, Neville Williams, for a declaration pursuant to said section be remitted to the Minister for consideration and determination according to law. 

4.         The Minister pay any costs hitherto reasonably incurred by the applicant or the second respondent, Barrick Australia Limited, in connection with the proceeding. 

5.         Pending further determination by the Minister of the applicant’s application for a declaration or further order of a judge of this Court, the second respondent be restrained from carrying out any work on the land referred to by the Minister in paragraph 4 of his statement of reasons for his decision of 9 December 2002, other than a continuation of the exploratory drilling program that was being carried out on the date of hearing, 21 May 2003, and the identification and removal to protective storage or artefacts found on the said land. 

6.         The parties have liberty to apply on two days notice.”

12                  Later the same day counsel for Barrick submitted, by reference to Johns v Australian Securities Commission (1993) 178 CLR 408 (“Johns”), that his Honour had lacked power under s 16(1)(d) of the AD(JR) Act to make Order 5.  That provision is as follows: 

“(1)      On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders:

            …

(d)       an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties.” 

Mr Beech-Jones, counsel for Barrick, has not disputed that the reference to “parties” in par (d) of subs 16(1) included Barrick. 

13                  His Honour accepted Barrick’s submissions and revoked Order 5. In its place he ordered that:

“The Minister complete his determination of the remitted application, and notify his decision thereon to the other parties to this proceeding, by not later than Friday, 13 June 2003.” 

14                  Yet later the same day, last Friday 30 May, Mr Williams filed his notice of appeal together with the notice of motion to which I have referred and a supporting affidavit by himself.  There are two grounds of appeal as follows: 

“2.       The decision that the Court had no power to grant interim relief to the Applicant pursuant to section 16(1)(d) of the Administrative Decision (Judicial Review) Act 1977 (Cth) against the Second Respondent was wrong at law.

3.         In the alternative His Honour erred in applying the principle in the majority of Johns v Australian Securities Commission and Others (1993) 178 CLR 407 that he had no power to grant relief against the Second Respondent.”

Relevantly, the affidavit in support of the motion stated in pars 8 and 9 as follows:

“8.       Following further submissions from my representative, His Honour revoked his earlier injunction.  The Second Respondent also submitted to the Court that in a day or two commencement of a new phase of high density drilling is to occur on the site.  Unless I am given interim relief on an urgent basis significant and sacred Aboriginal Objects and sites will suffer irreparable damage.  I will seek to rely on affidavits and submissions from the proceeding. 

9.         The Aboriginal Objects and the area are of particular significance to Traditional Owners of the Wiradjuri Nation.”

15                  The motion came before me as Duty Judge yesterday, Monday 2 June 2003 – the next sitting day following the making of his Honour’s orders.  While his Honour's reasons for judgment in support of the original six orders were available, reasons in relation to the revocation and replacement of Order 5 are not yet available.  I have relied upon what Mr Beech-Jones of counsel for Barrick and Mr A Oshlack, who, with leave, has appeared for Mr Williams, have told me as to the reasons which his Honour gave for making the change referred to.  It is common ground that his Honour thought he was compelled to revoke the injunction by reason of what was said by the High Court in Johns. 

POWER TO GRANT THE INTERLOCUTORY INJUNCTION NOW SOUGHT

16                  It is important to identify the basis of my power to grant the interlocutory injunction now sought by Mr Williams.  A “superior court of record and ... a court of law and equity”, such as this Court (FCA Act subs 5(2)), has inherent or implied power to make an interlocutory order which is necessary to enable it to perform its function as such a court.  An example of that power is the power to make an order directed to preserving the subject matter of litigation or to preventing its processes from being frustrated and an available form of proceeding from being rendered nugatory.  The power is available whether the court is exercising original or appellate jurisdiction (including jurisdiction to grant leave to appeal).  In the case of an appellate court, the order may take the form of a stay of execution of the order appealed from.  Provided the court is seized of a juridical dispute in respect of which it has jurisdiction and that dispute remains to be finally determined, the court has the power mentioned.

17                  It is appropriate that the power be stated in broad terms of the kind set out in the preceding paragraph.  The reason is that the power derives from the nature of a “court” and the unique role of courts in our society as the repositories of judicial power.  It would be inconsistent with the rule of law if courts could be denied their role of resolving judicial disputes in accordance with law.  Whether the power mentioned is described as “inherent” or “implied” is immaterial.  In the case of a court created by statute, such as this Court, it can be said that the power is implied because it is inherent in the legislature’s use of the concept of “a superior court of record and ... a court of law and equity”.

18                  The power exists independently of the familiar form of provision such as that found in s 23 of the FCA Act, which provides:

“The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.”

A provision of that kind may, however, be seen to “reinforce” the implied power:  cf Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285 (McLelland J) (“Dwyer”) at 287.  Similarly, the power exists independently of such a rule as O 37 r 10 of the Federal Court Rules, which provides: “The Court may stay execution of a judgment or order”.

19                  Australian authorities supporting the existence of the power to which I have referred in “a superior court of record and ... a court of law and equity”, include the following:  Tait v The Queen (1962) 108 CLR 620 (at 623 Dixon CJ said, in argument,“I have never had any doubt that the incidental powers of the Court can preserve any subject matter, human or not, pending a decision”);  In re Marks and Federated Ironworkers’ Association (1981) 55 ALJR 395 (Mason J) at 396:  Simsek v MacPhee (1982) 148 CLR 636 (Stephen J) at 640-641;  Brisbane Gas Co Ltd v Hartogen Energy Ltd (1982) 60 FLR 343 at 347-348;  Stack v Coast Securities No 9 Pty Ltd (1983) 46 ALR 451 at 487-488;  Fulcher v Hilt (1985) 66 ALR 96;  Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681 (Brennan J) (“Jennings”);  Dwyer;  Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 75 ALR 461 (Deane J) at 464;  Paringa Mining & Exploration Company plc v North Flinders Mines Ltd (1988) 165 CLR 452 (“Paringa”) at 459—460;  Rahme v Commonwealth Bank of Australia (1993) 117 ALR 618 (Deane J);  Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 137 ALR 28 (Kirby J);  Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 1] (1998) 72 ALJR 868  (Hayne J);  Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 2] (1998) 72 ALJR 869 (Hayne J);  Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [32—33], [35];  Timar v Minister for Justice and Customs [2001] FCA 295 (Marshall J) at [12]–[24].  And see Re Macks; ex parte Saint (2000) 204 CLR 158 at 177–178 ([19]–[23]), 185—186 ([51]–[53]), 235–237 ([214]–[220]), 247–248 ([253]–[255]); and the excellent article, “The Inherent Jurisdiction of the Court” by Keith Mason QC, as Justice Mason, President of the New South Wales Court of Appeal, then was, at (1983) 57 ALJ 449, esp at 452—453.

20                  It is not so obvious that a court from which an appeal is brought has inherent or implied power to make an interlocutory order directed to preserving the subject matter of the appeal or preventing the appellate court’s processes from being frustrated and an appeal proceeding from being rendered futile.  It is at least arguable that such a power is not necessary to enable “a superior court and ... a court of law and equity” from which an appeal is brought to perform its own function as such a court; cf Patton v Minister for Defence (1987) 13 FCR 476.  But, as will be seen below, this issue is now not free from authority.

21                  There were early dicta in England that a justice of the High Court from which an appeal was brought to the Court of Appeal, at least where the justice dismissed the action, was functus officio and could not grant an injunction of the present kind (cf Wilson v Church (1879) 11 ChD 576, at 578;  Otto v Lindford (1881) 18 ChD 394 at 394—395 – in Otto v Lindford, the Court of Appeal confined the principle to dismissals, stating that in other cases the application for a stay should in fact be made to the primary judge in the first instance). 

22                  This suggestion did not, however, prevail, at least where the order appealed against had not been perfected.  In Wilson v Church (No 2) (1879) 12 ChD 454 the Court of Appeal held that in such a case it had inherent power to preserve the subject matter of an appeal from it to the House of Lords.  It will be noted that the appeal was even from one court to a separate court, rather than within the one court as the appeals in Wilson v Church and Otto v Lindford were.  In Polini v Gray (1879) 12 ChD 438; Jessel MR stated of the power in question (at 443):

“It appears to me on principle that the Court ought to possess that jurisdiction, because the principle which underlies all orders for the preservation of property pending litigation is this, that the successful party in the litigation, that is, the ultimately successful party, is to reap the fruits of that litigation, and not obtain merely a barren success.  That principle, as it appears to me, applies as much to the Court of first instance before the first trial, and to the Court of Appeal before the second trial, as to the Court of last instance before the hearing of the final appeal.”

In the same case, Cotton LJ said (at 446) that the basis of the primary court’s jurisdiction was that the litigation is to be considered as not at an end, apparently until any exercised right of appeal is exhausted.  In the present case, Wilcox J’s orders have not been entered and Mr Williams duly exercised his right of appeal to a Full Court of this Court.  Accordingly, it is possible to say, a fortiori,if it be necessary to say so at all, that a matter in respect of which the Court has jurisdiction, namely, the dispute over the availability of injunctive relief consequential upon the setting aside of the Minister’s decision under the AD(JR) Act, has not yet been finally resolved by the Court.

23                  Modern authority in England makes it clear that the inherent power which the Court of Appeal was recognised to possess in Wilson v Church (No 2) and Polini v Gray is possessed by a justice of the High Court in respect of a pending appeal to the Court of Appeal:  cf Orion Property Trust Ltd v Du Cane Court Ltd [1962] 1 WLR 1085 (“Orion”);  Erinford Properties Ltd v Cheshire County Council [1974] Ch 261 (“Erinford Properties”).  In Erinford Properties, in which the appeal was from a Judge in the Chancery Division of the High Court to the Court of Appeal, Megarry J stated (at 266—267):

“ ... it may be technically less difficult to contend that the Court of Appeal is functus officio when it has dismissed an appeal and the loser wishes to appeal to the House of Lords than to contend that a trial judge is functus officio when he has dismissed an action and the loser wishes to appeal to the Court of Appeal:  for in the latter case, as contrasted with the former, the proceedings are still within the same court, the Supreme Court.  Again, in the case before me no order dismissing the motion has yet been perfected, and until it has been it is open to this court to modify or even revoke the decision, as may be considered proper:  see In re Harrison’s Share under a Settlement [1955] Ch 260.  Yet again, an application for an injunction to restrain a successful defendant from acting upon his success seems to constitute an original motion, and I do not see what there is to exclude the jurisdiction of the court to hear and decide such motions in this one limited class of case.  It seems to me that on principle and on authority, despite the words of Jessel MR that I have quoted [a reference to Wilson v Church (1879) 11 ChD 576 at 578; and Otto v Lindford (1881) 18 ChD 394 at 394—395] I had jurisdiction to grant the injunction that I granted.”

As noted above, in Erinford Properties, the present appeal lies within the same court as that in which the decision appealed from was made.

24                  This is not, however, a condition of the availability of the power.  As in England, so, according to the preponderance of authority, in Australia, in the case of appeals from one court to another (see The Marconi’s Wireless Telegraph Co Ltd v The Commonwealth (1913) 16 CLR 384;  FAI Insurances Ltd v Registrar of Workers’ Compensation Commission of New South Wales [1982] 1 NSWLR 239;  Jennings at 684;  John Fairfax & Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510;  Sibuse Pty Ltd v Shaw [No 2] (1988) 13 NSWLR 125; McMillan v Hambledon Nominees Pty Ltd (No 2) [1991] 1 Qd R 118;  J v L & A Services Pty Ltd [1993] 2 Qd R 380;  Territory Insurance Office v Costa (2002) 36 MVR 275), as well as in the case of appeals from a single judge to a Full Court within the same court:  (see Bercove v Hermes (No.2) (1983) 51 ALR 105 at 108; Tuncak v Young (1987) 14 ALD 286; North Flinders Mines Ltd v Hartogen Energy Ltd (No 2) (1988) 52 SASR 14 at 15—16; Stirling Harbour Services Board v Bunbury Port Authority (No. 2) [2000] FCA 87;  NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 999  at [7]-[11]), the power is available at the curial level from which the appeal is brought, in respect of the appeal.  Indeed:

·        ordinarily the application for the interlocutory order should be made to the court or judge appealed from in the first instance (see, for example, Otto v Lindford at 395;  Jennings at 684); and

·        the power is not denied to a judge who, like Wilcox J in the present case, refused an injunction at first instance, to grant one pending the determination of the appeal against that refusal, against the possibility that he or she may have erred (cf Erinford Properties), although it has been said to be unsatisfactory that an application be made to that judge in those particular circumstances: Paringa at 459.

25                  Mr Williams has brought his motion in the appeal proceeding.  A Full Court, in the exercise of the appellate jurisdiction of the Court, has implied power to grant the interlocutory injunction sought by Mr Williams as an incident of the appeal (cf FCA Act, subss 24(1), 25(1), 28(1)(b), the cases cited earlier on inherent or implied power generally, and such further cases as Wilson v Church, above;  Hempel v Moore (1987) 70 ALR 714 at 718-719).

26                  Subject to certain exceptions specified in the FCA Act, the appellate jurisdiction of the Court is to be exercised by a Full Court:  FCA Act, subs 25(1).  The exceptional circumstances in which the appellate jurisdiction may be exercised by a single judge (see FCA Act, subss 25(2), (2B),(5)) do not include the granting of an interlocutory injunction for the purpose of preserving the subject matter of an appeal to a Full Court:  Hempel v Moore, above, at 719. 

27                  Mr Williams desires that I hear the motion now rather than that it await the sitting of a Full Court.  On this basis, for the reasons given above, the notice of motion and supporting affidavit should be filed in this proceeding (N 192 of 2003) rather than in the appeal proceeding (N 750 of 2003).  I will cause a copy of those documents to be placed on the file in this proceeding. 

28                  My power to grant injunctive relief can rise no higher than the relief which would be available in the appeal proceeding.  That relief is, relevantly, an interlocutory injunction, whether “[p]ending further determination by the Minister” in accordance with Wilcox J’s original form of Order 5, or “until further order” in accordance with the order sought in Mr Williams’s notice of appeal.  In the light of his Honour’s substituted Order 5 (set out at [13] above), it seems clear that the dispute is over an interlocutory injunction of short duration.

29                  Ordinarily, there being a right of appeal, the Court will seek to ensure that  the subject matter of the appeal is preserved.  In this case the subject matter of the appeal can be described in various ways but it suffices to describe it as the prospect that the appeal will succeed and that an interlocutory injunction, of short duration pending the Minister’s reconsideration and decision, will be granted. 

ARGUABLE APPEAL – johns

30                  An interlocutory injunction will be granted on the present motion only if there is an arguable case that the appeal will succeed. 

31                  I have come to the view that there is not an arguable case that his Honour erred in his view that Johns obliged him to refuse the interlocutory injunction against Barrick.

32                  The facts of Johns are adequately set out in the headnote as follows (at 408—409);

“Section 19(2)(b) of the Australian Securities Commission Act 1989 (Cth) empowered the Australian Securities Commission (“the A.S.C.”) to require certain persons to appear before a member of the A.S.C. or a member of its staff for examination on oath.  Examinations were to take place in private: s 22(1).  Section 25(3) empowered the A.S.C. to give a person a copy of a written record of the examination.  Section 127(1) required the A.S.C. to “take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers”.  Subsection (4)(b) authorized the disclosure of information where it would enable or assist the government or an agency of a State or Territory to perform a function or exercise a power. 

A delegate of the A.S.C. required the former managing director of companies in the T. group to attend before her for examination pursuant to s 19(2)(b).  The examinations took place in private and transcripts of them were made.  Pursuant to s 127(4)(b), the delegate authorized the disclosure of certain transcripts to a State Royal Commission enquiring into T’s affairs for the internal use of the Royal Commission.  Purporting to act under s 25(3), the delegate subsequently gave further transcripts to the Royal Commission and authorized the Royal Commission to use them in public hearings.  When copies of the transcripts were tendered in evidence in public hearings, the Royal Commission made copies available to journalists and information in the transcripts was published in the media.”

33                  Mr Johns unsuccessfully sought in this Court review of the decisions of the Australian Securities Commission (“ASC”) which resulted in the handing over of the transcripts of his examination to the Royal Commission.  He also failed on his appeal to a Full Court (Johns v Australian Securities Commission (1992) 35 FCR 146). 

34                  Mr Johns’s appeal to the High Court succeeded in part.  It succeeded to the extent that the decisions to release the transcripts in circumstances which allowed their contents to be published generally were held invalid.  But the Court’s refusal of injunctive relief to Mr Johns was upheld.  The only aspect of that refusal which is of present interest is the refusal of injunctive relief against The Herald and Weekly Times Ltd (“HWT”) and the Australian Broadcasting Corporation (“ABC”) under s 16(1)(d) of the AD(JR) Act.

35                  Five judgments were delivered in Johns.  Brennan J stated in relation to s 16(1)(d) as follows (at 433—434 – in all passages quoted from Johns, I have usually omittedfootnotes and references to them): 

“Nevertheless, Mr Johns submits that he is entitled to a remedy against H.W.T. and the A.B.C. under the A.D.(J.R.) Act.  That Act confers on the Federal Court jurisdiction to make orders “directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties”: s 16(1)(d).  H.W.T. and the A.B.C. were joined as respondents to Mr Johns’ application to the Federal Court, but it does not follow that an injunction may issue restraining them from using the transcripts merely because they are made parties to the litigation.  The relief which may be ordered under s 16(1)(d) of the A.D.(J.R.) Act is not so much at large that the Court may make an order against a party to litigation even though no ground for relief under the general law is established against that party.  Section 16(1)(d) does not set the Court on an uncharted course without legal reference points by which to steer.  Some observations in Park Oh Ho v Minister for Immigration and Ethnic Affairs [(1989) 167 CLR 637 at 644—645] were relied on in support of an argument that the recipient of information was within the purview of that paragraph if the information was received in consequence of a reviewable and void decision.  In that case, this Court said [at 644]:

‘The legislative purpose to be discerned in the conferral by s 16(10(c) and (d) of power to grant declaratory and injunctive relief in addition to the power to quash or set aside (with effect from a specified date) an impugned decision is clear.  It is to allow flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will achieve what is ‘necessary to do justice between the parties’ (s 16(1)(d)) and which will avoid unnecessary re-litigation between the parties of those issues.  The scope of the powers to make orders which the sub-section confers should not, in the context of that legislative purpose, be constricted by undue technicality.’

However, s 16(1)(d) applies only when the making of an order is “necessary to do justice between the parties”.  That means justice according to law.  It may be that a person who acquires information knowing that the information is imparted to him in breach of a statutory duty is in the same position as he would have been if the duty were an equitable obligation of confidence.  But H.W.T. and the A.B.C. received the transcripts from the Royal Commission, not from the A.S.C., and it does not appear that either of them had knowledge of any breach of duty on the part of the A.S.C. in permitting publication of the transcripts by the Royal Commission. 

If there be no right to relief against a person under the general law, that person does not become liable to have an adverse order made under s 16(1)(d) merely by reason of being joined as a respondent in an application to the Federal Court under the A.D.(J.R.) Act. 

I am unable to ascertain any basis for the grant of relief under the A.D.(J.R.) Act against H.W.T. or the A.B.C.”

36                  Dawson J agreed generally with Brennan J.  In relation to s 16(1)(d), in particular, his Honour said he agreed with Brennan J that Mr Johns had not made out grounds for relief under that provision against HWT and ABC.

37                  Toohey J stated (at 458) that s 16(1)(d) could not assist Mr Johns in his application against HWT and ABC

“where there is otherwise no right to relief against any of the respondents.”

38                  Gaudron J stated as follows (at 458-459):

“There is no doubt that the power of the Federal Court under s 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the A.D.(J.R.) Act”) to make “an order directing any of the parties to do, or to refrain from doing, any act or thing … [as it] considers necessary to do justice between the parties” is to be construed widely.  That is so, both by reason of the general principles applicable to the construction of provisions which confer power on a court and by reason of the purposes which attend the A.D.(J.R.) Act.  But, as a matter of general principle, the purposes of the A.D.(J.R.) Act also mark out the boundaries of the power conferred by s 16(1)(d).  Having regard to those purposes, that paragraph cannot, in my view, authorize relief which is not otherwise authorized by law against persons who, like the sixth and seventh respondents, were not in any way involved in the processes or procedures which led to the decision under review and who benefit from the decision, if at all, only indirectly.  It may be that, on that account, s 16(1)(d) has no bearing on the position of persons who are, in that sense, strangers to the decision under review, but that is not a matter that has to be decided in this case.  The appellant also claimed equitable relief against the sixth and seventh respondents on the basis that the transcripts are confidential, and it is accepted that that claim was part of the entire matter which was before the Federal Court.”

Her Honour proceeded to consider at some length the question whether Mr Johns was entitled to injunctive relief against HWT and ABC on the ground that they had received confidential information.  Her Honour concluded that the question whether Mr Johns was entitled to relief against HWT and ABC could not be determined on the material and arguments presented in the High Court, and that this aspect of the matter should be returned to this Court for further consideration.

39                  Finally, McHugh J stated (at 474—475) as follows:

“The appellant submitted that the transcripts have not lost their confidentiality.  He also contended that he has not lost his right to relief in respect of that confidentiality.  Whether or not this is so, no relief can now be obtained against the Royal Commission:  it has returned the transcripts and made non-publication orders in respect of the material tendered in public hearings.  However, the appellant seeks an injunction against the media organizations to restrain a breach by them of the equitable duty to maintain the confidentiality existing in the material. 

Once information becomes public knowledge, or is in “the public domain”, equity will refuse to intervene to protect the information because the information has lost is confidentiality.  In some circumstances, however, equity will intervene if public dissemination has been limited.  Consequently, a person who has received information published in breach of confidence may be restrained from publishing that information even though there has been a limited publication. 

In the present case, the information retained its confidential character when received by the Royal Commission (because the decision of the A.S.C. to release the transcripts was invalid).  However, the information may have lost its confidential character when it was tendered at the public hearings of the Royal Commission.  On the other hand, either as a matter of law or of fact, the confidential character of the material may have endured.  For the reasons given by Gaudron J, I do not think that the material and the arguments put before the Court enable us to determine the issue which should be returned to the Federal Court for determination.”

40                  In sum, the judgments of Brennan, Dawson and Toohey JJ are express authority for the view that a party seeking an injunction under s 16(1)(d) of the AD(JR) Act must establish a “right” to it under general law principles.  Gaudron J and McHugh JJ implicitly shared that view.  That they did so is shown by their discussion of the question of the availability of injunctive relief against an innocent recipient of confidential information, and their inquiry into the question whether the information contained in the transcripts remained confidential when it was received by HWT and ABC, or whether confidentiality had been lost by reason of the information having entered the public domain.

41                  Mr Oshlack relies on the judgment of Gaudron J, and, in particular, on her Honour’s reference to the HWT and ABC as not having been “in any way involved in the processes or procedures which led to the decision under review and [as benefiting] from the decision, if at all, only indirectly”.  He points out, correctly, that in this case Barrick made submissions to the Minister as to why the Minister should not make a declaration, and, further, to the fact that Barrick benefits from the Minister's refusal to make the declaration.  He points out, correctly, that HWT and ABC had had no connection whatever with the decision maker in Johns.

42                  But it is important to read in context what Gaudron J said in Johns.  Her Honour was making it clear that the positions of HWT and ABC were at the outer limits.  It does not follow that her Honour meant to say that any person in any way “closer” to the decision-maker than HWT and ABC were in Johns, is in a position to invoke s 16(1)(d).  Although Barrick made a submission to the Minister, it was a “stranger to the decision under review” (cf Johns at 459 per Gaudron J) because it did was not an applicant before the Minister and the decision was not one to grant it rights, such as a decision which it needed in order to carry out lawfully its activity on the Specified Area.  The decision was not, for example, a decision to grant Barrick a mining lease or an exploration licence.

43                  I think it clear that Gaudron J did not disagree at all with the statement made by Brennan J that s 16(1)(d) does not enlarge the scope for a person placed as Mr Williams is to obtain an injunction.  In substance, all members of the Court were saying that a person placed as Mr Williams is in no better position to obtain an order under s 16(1)(d) by reason only of the fact that Barrick is joined as a party.  What one must ask is whether Mr Williams would otherwise be entitled to injunctive relief against Barrick.

44                  The status on which Mr Williams relies is the one which the ATSIHP Act stipulates – “an Aboriginal”.  The general law does not recognise an Aboriginal person (any Aboriginal person from any part of Australia) as having an interest in the Specified Area protectable by injunctive relief.  The right given by s 9 of the ATSIHP Act to any Aboriginal person to apply for a Ministerial declaration does not constitute such an interest.

45                  Faced with the difficulty presented by Johns, Mr Oshlack referred in the course of his submissions to other bases on which Mr Williams’s application for injunctive relief might be supported.  But no evidence was led before me to support any other basis.  In one way or another the submissions depended on Mr Williams’s association with the Specified Area.  Those submissions would have opened up a very large factual inquiry.  Apparently:

·        there are two competing native title determination applications covering the Specified Area:

·        in the case of one of the two, Mr Williams is one of the applicants;

·        the other one has been accepted for registration under s 190A of the Native Title Act 1993 (Cth), but that in which Mr Williams is one of the applicants has not been accepted for registration; and

·        applicants in that other application have come to an arrangement with Barrick as to terms under which its activities within the Specified Area are permitted.

46                  In his submissions Mr Oshlack referred, generally and without reference to any evidence before me, to Mr Williams’s “equitable interest” in Aboriginal sites and objects and artefacts in the Specified Area; to the unconstitutionality of certain provisions of unspecified legislation in 1967 and 1969, by which, according to his submission, the title to Aboriginal artefacts was vested in the Crown in right of the state of New South Wales; and to provisions of the Australian Constitution relating to religious freedom and the acquisition of property without just compensation.  In the absence of evidence and properly articulated submissions, I have not felt obliged to pursue these matters further.

CONCLUSION

47                  For the above reasons, the appeal does not have any prospects of success and the motion will be dismissed with costs.

Associate:

Dated:                          23 June 2003