Federal Court of Australia

Seniors and Disabilities Best Access Group v Commissioner of Main Roads (No 2) [2025] FCA 615

ORDERS

THE COURT ORDERS THAT:

1.    Paragraph 2 of the orders made on 21 May 2025 be discharged.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

FEUTRILL J:

1    These proceedings concern an application under s 46PP of the Australian Human Rights Commission Act 1986 (Cth) for an interim injunction to maintain the status quo as it existed immediately before the applicant lodged a complaint in the Australian Human Rights Commission.

2    On 24 April 2025 I made orders, amongst others, granting an interim injunction to restrain the respondent, whether by itself, its officers, employees, or agents or otherwise, from removing the balance of the pedestrian footpath that runs in a north-south direction between Scarborough Beach Road and Green Street and terminates to the east of the junction between Green Street and Waterloo Street in Joondanna in the State of Western Australia. That injunction was to remain in force until 22 May 2025 and I relisted the application for further hearing as to the continuation, discharge or variation of that injunction on 21 May 2025.

3    At the hearing on 21 May 2025 I discharged that injunction and granted another injunction to restrain construction of a short section of the proposed new shared path stretching between Scarborough Beach Road and Green Street, across Green Street, including the landings on either side of Green Street, and on the island of the new roundabout at the intersection of Green Street and Scarborough Beach Road before the intersection of Brady Street and Main Street in Joondanna.

4    The background to the proceeding and those orders is set out in the reasons published for the orders made on 24 April 2025 in Seniors and Disabilities Best Access Group v Commissioner of Main Roads [2025] FCA 424 which I will refer to as SANDBAG (No 1). For the reasons given in SANDBAG (No 1), I am satisfied that there is, for the purposes of s 46PP, a serious question to be tried, and the real issue is whether there should be a continuation of the interim injunction granted on 21 May 2025 so as to preserve a part of the status quo for the purposes of the complaint lodged in the Australian Human Rights Commission.

5    As is suggested by the interim injunction granted on 21 May 2025, the remaining part of the status quo ultimately involves the prevention of the construction of a small section of the shared footpath. The evidence before the Court on 21 May 2025 satisfied me that the original injunction granted was granted on a mistaken understanding of the state of the existing footpath, which has been partially removed. The completion or reinstatement of that footpath would require completion or reinstatement of a new footpath in accordance with current Australian standards. That is because the old or existing path was not constructed in accordance with those standards. Therefore, to maintain that part of the status quo is of limited, if any, utility.

6    There are a number of matters to be taken into account regarding the balance of convenience, but the approach I take involves, as has been set out in a number of authorities, looking at the risk of injustice to the applicant on the one hand and the risk of injustice to the respondent on the other should a decision to either not grant, in the case of the applicant, or grant, in the case of the respondent, an injunction turns out to be the ‘wrong decision’.

7    In the case of s 46PP, it is also relevant that an injunction is not to be granted on the condition that the applicant provide an undertaking as to damages which has the effect of, to some extent, militating against damages being a driving reason for refusing an injunction. As I say, risk of harm to the respondent is a factor but not necessarily a decisive factor as can sometimes be the case in more orthodox circumstances involving the grant of an injunction. Having regard to that factor, there are a number of other factors that are relevant to the exercise of discretion in this case. These include that there will be third parties whose interests may be affected by any continuation of the injunction.

8    As was explained in SANDBAG (No 1), the Commissioner of Main Roads is evidently exercising power under s 27A of the Main Roads Act 1930 (WA) because the roads in question are not highways, main roads or secondary roads within the meaning of that Act. The construction of a shared path is work that falls within the general functions of the Commissioner of Main Roads under s 15B of the Main Roads Act which, in turn, is conferred on the Commissioner of Main Roads under s 27A of that Act. The works here are evidently constructed in consultation with the relevant local governments, namely the City of Stirling and the City of Vincent. The proposed new shared path between Scarborough Beach Road and Green Street would be in the City of Vincent. It is not entirely clear, but it appears that the landing on the northern side of Green Street would be in the City of Stirling. Whether it be in the City of Stirling or the City of Vincent, it will be in a local government area.

9    In any case, any alternative to the present scope of work for construction of a shared path would require consultation and agreement between the Commissioner of Main Roads, City of Vincent and City of Stirling. And, neither the City of Stirling nor the City of Vincent are parties to the complaint lodged in the Australian Human Rights Commission, which is a significant matter in terms of deciding whether or not to grant continuation of the injunction as the rights of, at least the City of Vincent, and probably both the City of Vincent and City of Stirling, would be affected by any continuation of the injunction. This would also not presently have any part to play in any resolution of the complaint in the Australian Human Rights Commission. That is also a factor that tends to diminish the possibility or the probability of a conciliated outcome in the Australian Human Rights Commission as matters presently stand, which is, of course, one of the purposes for which an interim injunction or the power to grant an interim injunction is provided under the Australian Human Rights Commission Act.

10    The hearing on 21 May 2025 was adjourned largely to allow inquiries to be made of the Australian Human Rights Commission to determine the likely length of time it would take in that forum to reach a resolution through conciliation or termination of the complaint by one of the various ways in which a complaint can be terminated under the Australian Human Rights Commission Act. The evidence that has been submitted in respect of that proceeding is quite equivocal in terms of the length of time it is likely to take, but it does seem, whatever way one looks at the matter, reaching a resolution, one way or the other, in the Australian Human Rights Commission is likely to take a number of months. The consequence of that is, if the restraint is continued, the area between Scarborough Beach Road and Green Street near the relevant island will remain, in effect, a construction site. It will not be safe to be used as a thoroughfare and members of the public may be tempted to use it in its current state, even if measures are taken to exclude them from the area through fencing or barriers. That is to say, it will remain a hazard or risk to those members of the public who are prepared to take less care for their safety than others, which is also a relevant factor because for so long as the area remains in that condition, it is a risk that someone will come to harm in that area.

11    I also take into account that there will inevitably be additional costs in delaying completion of the works for any length of time or not completing it on the current schedule. If the restraint is continued, I infer, also, that there will be at least some additional costs incurred in continuing to maintain the site, either by way of erection, additional fencing and (or) other costs that are likely to be incurred to some extent on an ongoing basis.

12    I also take into account that other members of the public who are not members of SANDBAG will be denied access to the shared path in the relevant area for a considerable period of time. That will lead to some degree of inconvenience to other members of the public.

13    It is also of relevance that the Commissioner of Main Roads, as I have said, will no doubt incur some costs associated with the continuation of the injunction. One of the factors that is relevant and to be taken into account is the prospect that completion of the works will impede the possibility of a conciliated outcome in the Australian Human Rights Commission and this is a factor that favours, in general, maintaining the status quo. If costs are going to be incurred, in any case, in maintaining the injunction, particularly where costs will be incurred on an ongoing basis, then, to some extent, there is a disincentive to the conciliation process taking any significant length of time or being allowed to involve the City of Vincent and the City of Stirling. The conciliation process in this case will, no doubt, take some time, involve some complications where third parties are involved and incur ongoing costs to maintain the status quo. Therefore, to some extent, the continuation of the injunction may, in fact, operate as an impediment, rather than facilitate the conciliation process.

14    When all those factors are taken into account, in my view, the balance of convenience does not favour continuation of the injunction. For all those reasons, the order that I will make is that paragraph 2 of the orders made on 21 May 2025 be discharged. There will also be a second order that there be no order as to costs.

Associate:

Dated:    11 June 2025