Case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: cited
23 of the Federal Court Act 1976 (Cth) ('the Federal Court Act') provides that the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. The section does not itself confer jurisdiction. Where jurisdiction is conferred by an Act that provides an exhaustive code of available remedies or otherwise limits the power of the courts to grant relief, s 23 does not provide a basis for transcending that limitation. ( Thomson Australian Holdings Pty Ltd v the Trade Practices Commission [1981] HCA 48 ; (1980-1981) 148 CLR 150 at 161; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at [27] - [28] ). Section 23 will not generally be read as giving power to grant additional remedies of a kind already specifically provided for in other legislation which is to be seen as a comprehensive statement of the remedies there available. This presents a difficulty to an applicant seeking broader orders than those provided in the ADJR Act: " the stream cannot rise higher than its source " ( Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41 ; (1992) 34 FCR 169 at 177, 179 per Beaumont J, with whom Black CJ agreed). The Court also has inherent power, as a superior court of record and as a court of law and equity, to make an interlocutory order which is necessary to enable it to perform its function as such as court. This includes the power to make an order directed to preserving the subject matter of litigation ( Williams No 2 at [16] per Lindgren J). That power exists independently of the power in s 23 ( Williams No 2 at [18]). Mr Dates contends that an injunction is necessary to preserve the subject matter of the litigation, namely the untouched parts of Alum Mountain asserted to be of Aboriginal cultural significance. The Minister and the RTA point out that such an order extends beyond that envisaged by the relevant statutes. If the Court were to grant such an injunction it would, as the RTA submits, usurp the decision of the Minister and make, in effect, a s 9 "emergency" declaration. Further, as the RTA observes, the Protection Act provides for injunctions that would preserve the subject matter of a declaration but the precondition is the making of a declaration. Thus, the statutory regime does not envisage an injunction pending the making of, or the determination of a challenge to a refusal to make, a declaration under s 9 or s 10. The RTA submits it is neither a proper contradictor, nor a person whose evidence will assist in the determination of whether the Minister's decisions to refuse to make the s 9 and s 10 declarations should be set aside. The RTA submits that it is, relevantly, a stranger to the Minister's decision under review. This is not affected, for the purposes of s 16(1)(d), by the fact that the RTA made submissions or submitted a report to the Minister which he took into account in making his decision. The question is whether Mr Dates is otherwise entitled to injunctive relief against the RTA, whether or not it is joined as a party ( Williams No 2 at [43] per Lindgren J). The right given by s 9 (or s 10) of the Protection Act to any Aboriginal person to apply for a ministerial declaration does not constitute a right to claim injunctive relief against a third party nor does the general law recognise an Aboriginal person as having an interest in the specified area protectable by injunctive relief. The right given to any Aboriginal person by s 9 of the Protection Act does not constitute such an interest. ( Williams No 2 at [44]). Joinder for the purpose of granting an interlocutory injunction to prevent the RTA from proceeding with the works would afford Mr Dates rights greater than those available under the Protection Act, which does not provide for injunctions per se and in the absence of a declaration. Joinder would also afford rights greater than those under the ADJR Act which, if Mr Dates were successful, could at its highest result in remittal to the Minister for redetermination of his decision. The Minister submits that the RTA may be proper but not a necessary party to the substantive proceedings but that it is not a proper or necessary party to the motion if there is no power in the Court to grant the injunctive relief sought in the notice of motion.