HEARING DATE: 17 April 2025 and written submissions dated 24 April 2025

JUDGMENT OF: His Honour Deputy President Judge Calligeros

Application made by the respondent compensating authority to restrain counsel for the applicant worker from appearing at the hearing of this proceeding - The basis of the application is that the primary medical witness for the respondent is the brother of counsel for the applicant - The respondent claims that it will not have the benefit of a just and fair trial if counsel cross-examines his brother - The application is opposed by the applicant on jurisdictional grounds - The applicant also submits that a fair-minded, reasonable observer would not conclude that the administration of justice would be damaged by allowing counsel to continue to act - HELD: 1. The ambit of this Court's power is limited by comparison to the ambit of the power of the Supreme Court - 2. The South Australian Employment Tribunal Act 2014 (SAET Act) does not contain power to restrain counsel from acting in the circumstances of this proceeding as that power comes from the supervisory jurisdiction of the Supreme Court - The circumstances in which a practitioner can be restrained from appearing are described in s 51(3) of the SAET Act - 3. The South Australian Employment Tribunal Rules 2024 and Uniform Civil Rules 2020 do not provide this Court with power to restrain counsel from acting in this proceeding - 4. Given there is no jurisdiction to make the order sought, it is not appropriate to comment on the merits of the application.

Johnson v Johnson [2000] HCA 48 [53]; [2000] HCA 48; (2000) 201 CLR 488

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15

Lyons v Legalese Pty Ltd and Others [2016] SASC160

John Fairfax & Sons Pty Ltd v McCrae [1955] HCA 12; (1955) 93 CLR 351

Kirk v The Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531

Rex v Barker [1762] EngR 20; (1762) 3 Burr 1265; 97 ER 823

H Stanke & Sons Pty Ltd v Von Stanke [2006] SASC 308; (2006) 95 SASR 425

Davies v Clough [1837] EngR 360; (1837) 8 Sim 262; 59 ER 105

Newman (Trustee of Estate of Littlejohn) v Phillips Fox (a firm) [1999] WASC 171; (1999) 21 WAR 309

Frankland River Olive Co Ltd v Charters Securities Pty Ltd [2004] WASC 88

Director of Public Prosecutions (WA) v Bennett & Co [2005] WASC 1; (2005) 151 A Crim R 516

Rouse v IOOF Australia (No 2) [1999] SASC 205

Kallinicos and Anor v Hunt and Ors [2005] NSWSC 1181; (2005) 64 NSWLR 561

Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; (2001) 4 VR 501

Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222

Mills v Day Dawn Block Gold Mining Co Ltd; Re Marsland (1882) 1 QLJ 62

Rakusen v Ellis, Munday and Clarke [1912] UKLawRpCh 47; [1912] 1 Ch 831

Abse v Smith [1986] QB 536

Gentle v Rapps [1901] UKLawRpKQB 200; [1902] 1 KB 160

1. This decision concerns an interlocutory application (AFD) brought by the compensating authority and respondent to this proceeding, Helping Hand Aged Care Inc (Helping Hand). The proceeding concerns a rejected claim for compensation for a left shoulder injury made under the Return to Work Act 2014 (RTW Act) by the applicant, Nikica Mujakovic.
2. The claim was rejected on 30 May 2024. An application to review the rejection was lodged in mid-June 2024. The dispute was referred for hearing and determination under s 104(2) of the RTW Act on 1 November 2024.
3. The applicant was ordered to file and serve all affidavits and expert reports by 10 January 2025. A settlement conference took place but there was no resolution. Helping Hand was ordered to file and serve affidavits and expert reports by the end of February 2025. At a pre-hearing conference on 24 February 2025, time to comply with that order was extended to 19 March 2025. At the 24 February 2025 pre-hearing conference, Helping Hand advised that it was instructed to bring the AFD.

1. The AFD is dated 20 March 2025 and seeks the following orders:
   1. The Applicant's Barrister, Mr Saies, be removed as counsel from the South Australian Employment Tribunal dispute, namely ET-24-02695.
   2. The applicant is not entitled to costs thrown away by reason of such removal.
   3. The applicant is to pay the respondents costs incidental to the application.
   4. Such further or other orders as the Tribunal deems fit.
2. Mr Michael Saies is a barrister who frequently appears before this court. The AFD seeks to have Mr Saies removed or restrained from acting as counsel because his brother, Dr Andrew Saies, an orthopaedic surgeon who not infrequently gives evidence in this court, is the main expert witness relied upon by Helping Hand in relation to the dispute.
3. The AFD was argued on 17 April 2025. Affidavit evidence was submitted by each party. No witness was required for cross-examination. For the reasons which follow, I consider that this Court does not have jurisdiction to make order 1. It follows that orders 2 and 3 should be dismissed.

1. The following affidavit evidence was tendered at the hearing of the AFD.
2. Deidre Black is the claims consultant for Helping Hand. By affidavit dated 15 April 2025 Ms Black deposed that on 28 November 2024 she instructed solicitors to request a report from Dr Saies in relation to the left shoulder injury with the intention that Dr Saies would be the respondent's primary medical expert. On 19 December 2024 Ms Black was advised by the solicitor for Helping Hand that Mr Saies had been retained to act for the applicant.
3. Ms Black expressed her concerns in the following way:[1]

I was immediately concerned with the news that the Applicant's counsel is the brother of Helping Hand's lead expert witness, Dr Andrew Saies. My concerns centre around how the familial relationship between Dr Andrew Saies and Mr Michael Saies may impact the answers that Dr Andrew Saies gives at trial, whether I can trust that Helping Hand has been afforded a just and fair trial (should the dispute progress to trial), and whether the evidence from its primary medical expert, Dr Andrew Saies, in relation to the left shoulder injury is given completely and impartially.

My concerns are not allayed if Mr Michael Saies and / or Dr Andrew Saies were to give an assurance that they would not be impacted by their familial relationship in how they behaved in these proceedings.

Even if such an assurance is given by either or both Mr Michael Saies and Dr Andrew Saies, I cannot be confident whether in the course of their familial relationship as brothers that they haven't discussed in general terms Dr Andrew Saies' views on these particular types of matters, his theories and / or concepts of causation and methods of assessment such that Mr Michael Saies has an advantage that other counsel would not and do not have in these proceedings.

I have concerns that Helping Hand will not have the benefit of a just and fair trial if Mr Michael Saies is permitted to remain the Applicant's counsel in these proceedings.

Had the Applicant engaged Mr Michael Saies before Helping Hand engaged an orthopaedic surgeon, I would not instruct KJK Legal to engage Dr Andrew Saies because of their familial relationship as brothers and my concerns as outlined at paragraphs 12 and 15 above.

1. By affidavit dated 15 April 2025, Andrew Wright, solicitor for the applicant, deposed that when he instructed Mr Saies to act as counsel on 25 November 2024, he was unaware there was a familial relationship between Mr Saies and Dr Saies. Mr Wright deposed that the decision to engage Mr Saies had nothing to do with the identity of the medical expert consulted by Helping Hand.
2. Mr Wright stated that he advised solicitors for Helping Hand that Mr Saies had been engaged as counsel on 16 December 2024. It was only then that Mr Wright learned that Mr Saies and Dr Saies were brothers. Mr Wright deposed that he recalled being told by the solicitor acting for Helping Hand that her client would "remain silent (or words to that effect)" about the familial relationship issue.[2]
3. Tracey Kerrigan, solicitor for Helping Hand, swore an affidavit on 16 April 2025 in which she refutes the assertion by Mr Wright that her client would remain silent in relation to the familial relationship issue. Ms Kerrigan also refuted Mr Wright's assertion that she did not raise an issue in relation to Mr Saies acting as counsel until a pre-hearing conference on 24 February 2025. Ms Kerrigan deposed that she raised the issue at a pre-hearing conference on 16 December 2024 and Mr Saies in response stated that he did not share her concern.
4. Dr Saies affirmed an affidavit on 15 April 2025 in which he deposed that he was of the view that he could remain impartial when giving evidence. Dr Saies advised that he has been cross-examined by Mr Saies on one occasion without incident. He added that his evidence was peripheral to the main claim in that proceeding whereas his views are central to this proceeding.
5. It is not necessary to make findings of fact given the lack of jurisdiction.

1. Ms Makris, counsel for Helping Hand, submitted that s 37 of the South Australian Employment Tribunal Act 2014 (SAET Act), which provides the Tribunal with power to "do whatever is necessary for the speedy and fair conduct of the proceedings", enables the orders sought to be made.
2. In relation to whether there is a conflict of interest, Ms Makris submitted that the test is what a fair-minded member of the public who is neither complacent nor unduly sensitive or suspicious would think: Johnson v Johnson.[3] Ms Makris submitted that the process which applies is that described in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor.[4]
3. Ms Makris relied upon the paragraphs in Ms Black's affidavit set out above as the basis of the concern held by Helping Hand and to satisfy the test to establish there is a conflict of interest that should be addressed by the court. Ms Makris submitted that it is not only important that justice be done but that it also be seen to be done.
4. Mr Warren KC, counsel for Ms Mujakovic on the AFD, submitted that the court does not have the power to remove Mr Saies as counsel because either inherent or supervisory jurisdiction is required to make such an order. He submitted that s 37 of the SAET Act does not provide that power and is a procedural provision, not a jurisdictional provision. Reference was made to Lyons v Legalese Pty Ltd and Others.[5]
5. Mr Warren submitted that there was no breach of the South Australian Legal Practitioner Conduct Rules or r 99(e) of the Australian Bar Association Barristers' Conduct Rules which provides that a barrister may return a brief or refuse to appear before a court if required to cross-examine or criticise a friend or relation. It was said that whilst a barrister may return a brief in such a situation, they are not required to do so.
6. Despite the jurisdictional issue, Mr Warren urged me to consider the merits of the AFD. He did not seek to make submissions about the timing of when Mr Saies and Dr Saies were engaged by their respective clients. He submitted that if there is power to make the order sought, the discretion is not enlivened because a fair-minded, reasonable member of the public would not have any apprehension that justice cannot be done or be seen to be done based on the affidavit material. Mr Warren acknowledged that the test is whether there might be such an apprehension, not that there would be.
7. Mr Warren submitted that there is no evidence about whether Mr Saies and Dr Saies have a close relationship. He added that the application is based on a perception and has no regard to the respective duties of Mr Saies and Dr Saies. He submitted that as the evidence in issue is medical evidence, it is difficult to see how Mr Saies might "unleash" some information or knowledge on Dr Saies in cross-examination that might benefit the applicant based on Mr Saies' familial proximity to his brother.
8. As to the context of the medical evidence, Mr Warren submitted that the issue here is whether an incident at work rendered a previously asymptomatic degenerative condition symptomatic. He said that is not only a medical issue, but a question of fact to which legal principles apply.
9. In reply Ms Makris submitted that the focus is not on Mr Saies or on Dr Saies but on the interaction between them in a hearing. She reinforced the concerns expressed by Ms Black.
10. Ms Makris was given an opportunity to make written submissions on the issue of jurisdiction. Those submissions reiterate Helping Hand's reliance on s 37 of the SAET Act and in particular, the words "and do whatever is necessary" in s 37.
11. Ms Makris submitted that if s 37 of the SAET Act does not provide jurisdiction to restrain Mr Saies from acting as counsel, r 7 of the South Australian Employment Tribunal Rules 2024 (SAET Rules) does so. Rule 7 provides that if an issue or procedure is not dealt with by the SAET Rules, the Uniform Civil Rules 2020 (UCR) as they apply to the District Court of South Australia may be adopted and applied. Reliance was placed on r 12.1(1) of the UCR, a rule with a broad ambit that confers power to make orders.
12. In his written reply, Mr Warren submitted that s 92 of the SAET Act does not include a power to make rules conferring jurisdiction, nor does r 7 of the SAET Rules or r 12.1 of the UCR.

The power to restrain a legal practitioner from acting

1. In Lyons, Hinton J said the following:[6]

In instituting proceedings in this Court seeking an order restraining the defendants from acting in an inferior court, Ms Lyons engages this Court's supervisory jurisdiction. That jurisdiction is vested in this Court by s 17(2)(a)(ii) of the Supreme Court Act 1935 (SA) in that the like jurisdiction, as was formerly vested in, or capable of being exercised by, the Court of Queen's Bench is vested in this Court in and for this State. The jurisdiction of the Court of Queen's Bench included a general supervisory function of "seeing that justice was administered and not impeded in lower tribunals".[7] Thus the like jurisdiction in and for this State is conferred on this Court. The jurisdiction may be exercised in a manner corrective and protective using the prerogative writs, orders in the nature of the prerogative writs, and the power to punish for contempt of inferior courts.[8]

1. That passage makes it clear that the power to restrain a practitioner from acting in a proceeding in this State is vested in the Supreme Court and is part of the Supreme Court's supervisory jurisdiction. That jurisdiction exists to protect the administration of justice and act in the public interest and is not dependent on a professional conduct rule being breached.
2. As Ms Makris submitted, the test to determine whether a solicitor should be restrained from acting for a party is objective and asks whether a fair-minded, reasonably informed member of the public would consider that the order is necessary to protect the integrity of the judicial process and the due administration of justice.[9] To that end, justice must not only be done, it must also be seen to be done.
3. An application to restrain a practitioner from acting for a party will involve a consideration of the timing of the application, the stage the proceeding is at and the effect of making an order on the cost, inconvenience, or impracticality that a party may face in obtaining new representation. The inherent jurisdiction of a court is discretionary and exceptional and should be exercised with caution.

1. Mr Warren submitted that it is implicit from what happened in Lyons, that Hinton J considered that the power to restrain a legal practitioner from acting was not available to the Magistrates Court. That appears from the passage set out above and was the view of the Magistrate who dealt with the restraint application.[10] The trial was adjourned to allow the defendant's solicitors to make the application to the Supreme Court which came before Hinton J. His Honour did not find the Magistrate was mistaken nor did he remit the application to the Magistrate to deal with.
2. Hinton J referred to H Stanke & Sons Pty Ltd v Von Stanke,[11] where White J said the following:[12]

The availability of a power to exercise authority over solicitors as officers of the court as to the propriety of their actions is well established. The existence and exercise of the power have been discussed in a number of authorities including Davies v Clough; Newman (Trustee of Estate of Littlejohn) v Phillips Fox (a firm); Frankland River Olive Co Ltd v Charters Securities Pty Ltd; Director of Public Prosecutions (WA) v Bennett & Co; Rouse v IOOF Australia (No 2); Kallinicos v Hunt (in which a number of authorities were reviewed); and Spincode Pty Ltd v Look Software Pty Ltd. The power exists to protect the integrity of the judicial process and to ensure that the administration of justice is not brought into disrepute by the conduct of members of the legal profession. In some cases, the occasion for an exercise of the power has been determined by applying an objective test, namely, whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required that a solicitor act, or be restrained from acting, in a specified way.

(Citations omitted)

1. In Kallinicos and Anor v Hunt and Ors,[13] Brereton J considered whether the NSW Supreme Court's inherent supervisory jurisdiction extended to restraining a solicitor from acting against a former client following the decision in Bolkiah v KPMG.[14] His Honour concluded that the court was empowered to make the order, observing that one of the three bases for doing so was the court's "inherent supervisory jurisdiction over solicitors".[15] Brereton J surveyed some earlier authorities in relation to that jurisdiction in this passage:[16]

In Davies v Clough [1837] EngR 360; (1837) 8 Sim 262; 59 ER 105, albeit that questions of confidential information arose, Sir Lancelot Shadwell VC, in a judgment which was affirmed by Lord Cottenham LC, founded the jurisdiction to intervene on the court's authority over its own officers as to the propriety of their behaviour.

In Mills v Day Dawn Block Gold Mining Co Ltd; Re Marsland (1882) 1 QLJ 62, the Full Court of the Supreme Court of Queensland, albeit in a case concerning confidential information, held that the jurisdiction to restrain a solicitor from acting against a former client rested on the power of the court to keep control over all its officers.

In Rakusen v Ellis, Munday and Clarke [1912] UKLawRpCh 47; [1912] 1 Ch 831 at 835, Cozens-Hardy MR referred to "the special jurisdiction over solicitors", Fletcher-Moulton LJ (at 841) mentioned "the power that we certainly possess of directing what the officers of the court should and should not do", and Buckley LJ (at 843) referred to the jurisdiction over solicitors as officers of the court.

In Abse v Smith [1986] QB 536 at 546, Donaldson MR referred to the inherent right of a court, incidental to the proper administration of justice, to refuse to hear any individual barrister or solicitor when the proper administration of justice necessitates it.

1. Section 6 of the Supreme Court Act 1935 (SA) (SC Act) provides:

The Supreme Court of South Australia as by law established is hereby continued as the superior court of record, in which has been vested all such jurisdiction (whether original or appellate) as is at the passing of this Act vested in, or capable of being exercised by that court.

(1) The court shall be a court of law and equity.

(2) Subject to subsection (3), there is vested in the court in its General Division -

(a) the like jurisdiction, in and for the State, as was formerly vested in, or capable of being exercised by, all or any of the courts in England, following:

(i) The High Court of Chancery, both as a common law court and as a court of equity:

(ii) The Court of Queen's Bench:

(iii) The Court of Common Pleas at Westminster:

(iv) The Court of Exchequer both as a court of revenue and as a court of common law:

(v) The courts created by commissions of assize:

(b) such other jurisdiction, whether original or appellate, as is vested in, or capable of being exercised by the court:

(c) such other jurisdiction as is in this Act conferred upon the court.

(3) The court does not, in its General Division, have jurisdiction in respect of the matters that are, under section 19B, to be heard and determined by the Court of Appeal.

1. As well as vesting the Supreme Court with the powers of those named English Courts, s 17(2) of the SC Act provides that the Supreme Court may exercise any other power capable of being exercised by a court. The use of the word "continued" in s 6 of the SC Act suggests that the Supreme Court was able to exercise the powers in s 17(2) prior to, and independently of, enactment of the SC Act. The limitation imposed by s 17(3) of the SC Act delineates between the jurisdiction of the Supreme Court in its General Division and that of the Court of Appeal.
2. Unlike the Supreme Court, this Court does not have inherent jurisdiction or a supervisory jurisdiction. Section 5 of the SAET Act establishes the Tribunal. Section 5(3) provides that the Tribunal has a part which in Court Session is the South Australian Employment Court. The SC Act confers much broader powers than the SAET Act. This Court is a court of record by virtue of s 5(2) of the SAET Act, but it is not a superior court of record and does not have the powers of the Supreme Court or those of the English Courts mentioned in s 17 of the SC Act. This Court would cease to operate if the SAET Act was repealed.
3. The question remains whether the ambit of s 37 of the SAET Act is broad enough to make the order sought by Helping Hand without relying on any inherent or supervisory jurisdiction. Section 37 provides:

(1) The Tribunal may give directions at any time in any proceedings and do whatever is necessary for the speedy and fair conduct of the proceedings.

(2) The Tribunal may give directions on its own initiative or at the request of a party.

(3) A directions hearing may be held for the purposes of this section before any other hearing in any proceedings.

(4) The Tribunal may give a direction requiring a party to produce a document or other material, or to provide information, to the Tribunal or another party.

1. The ability to "do whatever is necessary" in a proceeding is to ensure "the speedy and fair conduct" of the proceeding. Could restraining counsel from acting be said to come within ensuring fair conduct of a proceeding?
2. Section 51 of the SAET Act concerns representation and is relevant. Section 51(1)(b) provides that a party to proceedings may be represented by counsel. Section 51(3) provides:

A person may not act as a representative in proceedings before the Tribunal if -

(a) the person is a legal practitioner whose practising certificate has been suspended; or

(b) the person's name has been struck off the roll of legal practitioners; or

(c) the person would be acting in any other manner that is inconsistent with disciplinary proceedings that have been taken under the Legal Practitioners Act 1981.

1. Section 51(3) is limited to instances of proven or pending professional misconduct and directs the Tribunal to prevent counsel from acting. There is no discretion in s 51 to restrain counsel from acting if there is some good reason to do so. Given the limited ambit of s 51(3), and the absence of any stated discretion to restrain counsel from acting, I am not persuaded that Parliament intended the Tribunal to grant the relief sought here. Mr Warren's submission that s 37 is a procedural provision is correct.
2. Finally, it makes good sense from a policy point of view to leave responsibility for supervising the conduct of legal practitioners to the highest court in this State's judicial hierarchy. Greater consistency is achieved by having one court exercise that function.
3. The alternative argument advanced by Helping Hand relies on r 7 of the SAET Rules which provides:

Subject to contrary order made by the Tribunal, where an issue or procedure is not provided for by the Rules, the SAET Act or a relevant Act, the Uniform Civil Rules apply, and relevant forms used by the District Court may be adopted and used with such modifications as the particular case may make necessary.

1. Rule 7 is concerned with providing coverage where the SAET Rules do not provide for an issue or procedure. The Uniform Civil Rules 2020 may then be applied. However, regardless of which rules are applied, rules and regulations are subordinate legislation or delegated legislation and are subservient to legislation:[17]

...This statutory limitation is, probably unnecessary, as the courts have always accepted the notion that subordinate legislation will be invalid if it contradicts - or, as it is usually stated, is repugnant to or inconsistent with - the Act under which it is made.

1. Given this Court does not have the power to restrain Mr Saies from acting under legislation, the common law or equity, I consider an inconsistency would arise if r 7 is interpreted in the way suggested by Helping Hand.
2. Section 92 of the SAET Act concerns rules. Relevantly, s 92(1) provides:

(i) restricting or prohibiting certain classes of persons from appearing as representatives in proceedings before the Tribunal; and

(k) regulating costs and providing for the assessment and settling of costs; and

(ka) providing that a rule made pursuant to paragraph (k) is to prevail over an inconsistent provision of a relevant Act; and

1. Section 92(1)(i) is directed to classes of persons appearing in the Tribunal, not individuals, and does not apply in these circumstances.
2. Section 92(1)(ka) provides that a rule made under s 92(1)(k) may prevail over a provision of an Act that is inconsistent with the rule. The subject matter of s 92(1)(k) is the regulation and assessment of costs. It is not surprising that Parliament has given the Tribunal a power to make rules about costs that can override the provisions of an Act. The Tribunal is better placed than Parliament to understand and make decisions about costs in individual cases and under relevant Acts. The SAET Act places great emphasis on cost-effectiveness and on the amount of costs incurred in a proceeding being proportionate to the amount sought. Those goals are facilitated by giving the Tribunal greater scope to make an appropriate costs order and produce appropriate costs scales.
3. The power in s 92(1)(ka) of the SAET Act is the exception that proves the rule that legislation takes precedence over delegated legislation. The uniqueness of s 92(1)(ka) is recognised by s 92(5) which provides:

Except to the extent specified in subsection (1)(ka), the rules must be consistent with the regulations, and with any relevant Act.

1. Section 92(5) is confirmation of the precedence legislation takes over rules in the event of an inconsistency between the two.
2. For those reasons I am satisfied that this Court does not have jurisdiction to make order 1 sought by the AFD.
3. Mr Warren asked me to consider the merits of the AFD despite this Court not having jurisdiction to grant what the AFD seeks. He said that dealing with the merits of the AFD may save a further application being made to the Supreme Court and avoid a further hearing. Initially I was drawn to that suggestion but have formed the view that it is not appropriate to consider the merits of what the AFD seeks.
4. Exercising supervisory jurisdiction over legal practitioners is the province of the Supreme Court. The scheme of the SAET Act strongly suggests that this Court was not intended to deal with applications like the AFD. Given that, it is not appropriate for this Court to express a view about the merits. As observed earlier, one reason to repose supervisory jurisdiction with the Supreme Court is to achieve consistency of approach. That goal is not assisted by this Court advancing a view about the merits. The application in Lyons was referred to the Supreme Court without any comment by the Magistrate about the merits. I do observe though that Mr Saies owes a paramount duty to the administration of justice under r 5(1)(a) of the Barrister's Conduct Rules and Dr Saies owes a paramount duty to assist the Tribunal impartially under r 65(1) of the SAET Rules. There is no reason to expect that Mr Saies and Dr Saies will not discharge their duties.
5. The AFD should be dismissed and the applicant should receive her reasonable costs of and incidental to the AFD to be agreed or adjudicated.

[1] Affidavit dated 15 April 2025 [12]-[16].

[2] Affidavit dated 15 April 2025 [16].

[3] [2000] HCA 48 [53]; [2000] HCA 48; (2000) 201 CLR 488 per Kirby J.

[4] [2023] HCA 15.

[5] [2016] SASC 160.

[7] John Fairfax & Sons Pty Ltd v McCrae [1955] HCA 12; (1955) 93 CLR 351 at 363-365 (Dixon CJ, Fullagar, Kitto and Taylor JJ). See also, Sir William Holdsworth, A History of English Law, Vol X pp 246-253; Vol XIV pp 198-204.

[8] John Fairfax & Sons Pty Ltd v McCrae [1955] HCA 12; (1955) 93 CLR 351 at 363 (Dixon CJ, Fullagar, Kitto and Taylor JJ); Kirk v The Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [98]- [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In Rex v Barker [1762] EngR 20; (1762) 3 Burr 1265; 97 ER 823 Lord Mansfield CJ referred to mandamus having been granted to restore an attorney to practice in an inferior court. A fortiori an injunction could achieve the opposite.

[9] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

[2023] HCA 15.

[10] [2016] SASC 160 [38].

[11] [2006] SASC 308; (2006) 95 SASR 425.

[13] [2005] NSWSC 1181; (2005) 64 NSWLR 561.

[14] [1998] UKHL 52; [1999] 2 AC 222.

[17] Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 4th ed 2012) 287.