Williams v Minister for the Environment & Heritage

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. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Mr A Oshlack appeared with leave on behalf of the Applicant.

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr M Beech-Jones

Solicitor for the Second Respondent Blake Dawson Waldron

Date of Hearing: 2 and 3 June 2003

Date of Judgment: 3 June 2003