14 In light of s23 of the Federal Court Act and the interpretation of this section in Patrick Stevedores', it is clear that the Federal Court is empowered to make interim orders that are appropriate "to ensure the effective exercise of the jurisdiction invoked". It is, therefore, important to identify the jurisdiction which has been invoked in the relevant proceeding. In the instant proceeding the applicant has invoked the jurisdiction of the Court under s39B of the Judiciary Act 1903 (Cth) and s21 of the Federal Court Act in respect of a purported exercise of power by the respondent. At the very least, these provisions provide the Court with the jurisdiction to decide the substantive proceeding. The Court is empowered to make interim orders which "ensure the effective exercise" of this jurisdiction.
15 No valid quarrel can be raised concerning the power of the Court to make interim orders which fall squarely within the four corners of the final relief which is sought. Consequently, a court may order interlocutory relief, including release from custody, where final relief seeks the review of a decision to hold the applicant in custody; see Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 ("Msilanga") and Betkhoshabeh v Minister for Immigration and Multicultural Affairs [1999] FCA 470, (1999) 92 FCR 504 at [77] and [78], per Weinberg J ("Betkhoshabeh"). However, the present case differs from Msilanga and Betkhoshabehin that the substantive proceeding is not one in which there is a challenge to a decision not to order Professor Timar's release. I disagree with the applicant's submission that in effect Professor Timar's challenge to the warrant was a challenge to the respondent's decision not to order Professor Timar's release. As noted above, the substantive proceeding concern the legality of the warrant issued under s23 of the Act and the final relief sought is to have the respondent validly exercise the discretion given to her under s22(2) of the Act.
16 I disagree with the proposition that the Court can never make interim orders of a kind which it does not have the power to make as final orders. In ensuring "the effective exercise of the jurisdiction invoked", it may be appropriate for the Court to make interim or interlocutory orders which extend beyond the final relief sought. For example, in some circumstances it may be necessary for a Court to grant interim relief that is wider than the final relief claimed to provide for the protection and enforcement of rights or the preservation of the subject matter at issue. Such an order may also be necessary to preserve the integrity of the Court's processes. See Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 at [35], (1998) 195 CLR 1 at 33 and Patrick Stevedores No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 31 at [1], 153 ALR 641 at 641, per Hayne J.
17 In the present case, Mr Kaufman has submitted that an order for the release of Professor Timar is necessary in order to preserve the subject matter of the litigation - that is to preserve Professor Timar. It is submitted that unless Professor Timar is released there is a high risk he will not survive.
18 It has long been recognised that a court may take steps to preserve the subject matter of the proceedings. Most famously, in Tait v The Queen (1962) 108 CLR 620 ("Tait"), a full court of the High Court of Australia stayed the execution of a prisoner so his application for special leave to appeal could be heard. More recently, in Tighe v Watson (1998) 86 IR 44 at 47-48 ("Tighe") interim relief extending beyond the final relief sought was necessary to preserve the subject matter of the litigation. While Tighealso concerned s209 of the Workplace Relations Act 1996 (Cth), a section under which special considerations apply to the grant of interim relief, it remains an illustration of the lack of universal application of the saying that "the stream can never rise beyond its source". In my view there must always be a "Tait Creek". To the extent that Msilanga is said to support a contrary view, it is at odds with the view expressed by the High Court in Patrick Stevedores.
19 I am of the opinion that the Court has the power to grant an order for release if it is required to preserve the subject matter of litigation, namely Professor Timor. However, the applicant must show granting an order for release is a necessary and appropriate step to take to preserve the subject matter of the litigation. To this end counsel for Professor Timar provided the Court with evidence of his medical condition
20 Evidence currently before the Court reveals the following:
· On 31 October 2000 Professor Timar's right kidney was removed during surgery at St Vincent's Hospital;
· Professor Timar suffers from unstable high blood pressure which requires medication and close monitoring and has been exacerbated since incarceration;
· Professor Timar's high blood pressure is likely, in the long term, to adversely affect his remaining kidney;
· Professor Timar suffers from impaired glucose tolerance, which has implications for cardiovascular problems. He also is at risk of other vascular complications of hypertension.
21 Although Professor Timar is clearly unwell, there is no evidence that his life is at risk if he is not released from custody. Doubtless continued incarceration is stressful for him but he is in receipt of medical care and attention whilst in custody. I do not consider that his state of health is so parlous that his release is necessary to secure his continued existence pending the substantive proceedings. If Professor Timar's health was so parlous that his life was at risk without release from detention, I consider that the Court would have the power to make an order for his release so as to preserve the subject matter of the litigation. The respondent's re-exercise of her discretion would be otiose if Professor Timar did not survive.
22 Absent compelling medical evidence that Professor Timar's life is at risk by continued detention, I am of the view that the Court is not in a position to hold that his release is an appropriate exercise of the Court's powers under s23 of the Federal Court Act. My opinion, in this regard, is consistent with that expressed by Kenny J in Peniche v Vanstone [1999] FCA 168, (1999) 96 FCR 38 ("Peniche") where at [27] she stated that she was not "satisfied that the proposed interlocutory orders can be considered relevantly appropriate in that they would, if made, provide for the protection and enforcement of the rights and subject matter in issue". It is interesting to note that earlier her Honour observed at [27] that "I am not satisfied that the Court would have power to grant, by way of final relief, Mr Cabal's release from detention". This approach appears to be in conflict with her later view, expressed above, that suggests there may be times when interlocutory orders that extend final relief are appropriate. For reasons given in this judgment I prefer her Honour's later view.
23 Given my view that interlocutory relief is an inappropriate exercise of the Court's power under s23 of the Federal Court Act in the current circumstances, it is unnecessary at this stage to consider whether there is a serious question to be tried, the degree of such seriousness or where the balance of convenience lies. This is notwithstanding that no issue was raised by Mr Livermore with Mr Kaufman's contention that the evidence before the Court currently discloses that there is a serious issue to be tried in the substantive application.
24 Regrettably, for the given reasons, I have come to the view that the Court should not make an order that Professor Timar be released pending the hearing and determination of the proceeding. Given that I do not foreclose the possibility of a situation arising where it may be appropriate to grant release from custody to a person who has challenged the validity of a s23 warrant, I do not consider that the Court lacks the jurisdiction to grant the relief claimed. However, I do not consider the making of an interlocutory order as sought in the instant circumstances would be an appropriate exercise of the Court's power under s23 of the Federal Court Act. Consequently the motion will be dismissed with costs.