Case: Johns v Australian Securities Commission [1993] HCA 56 ; (1992) 178 CLR 408
Outcome: applied
was pointed out in Johns v Australian Securities Commission [1993] HCA 56 ; (1992) 178 CLR 408 by Brennan J at 433 that s 16(1)(d) does not enable the Court to make an order against a party in litigation where no ground for relief under the general law is established against that party. There must, his Honour said, be " legal reference points by which to steer ". The power is in addition to the power to quash or set aside an impugned decision ( Park Oh Ho v Minister for Immigration &amp; Ethnic Affairs [1989] HCA 54 ; (1989) 167 CLR 637 at 644). It does not enable orders to be made against persons who 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; those persons are, in that sense, strangers to the decision ( Johns at 459 per Gaudron J). Johns was applied by Wilcox J in Williams v Minister for the Environment and Heritage (2003) 74 ALD 124 (' Williams No 1 ') to refuse relief by way of a restraining order against a joined third party under s 16(1)(d) of the ADJR Act, even after a refusal to make a s 9 declaration was declared invalid and set aside. His Honour concluded that such an order was beyond power. On the application for interlocutory relief following the decision of Wilcox J, Lindgren J expressed the view in Williams v Minister for the Environment and Heritage [2003] FCA 627 ; (2003) 199 ALR 352 (' Williams No 2 ') at [31] that there was not an arguable case that Wilcox J had erred in his view that Johns obliged him to refuse the interlocutory injunction. That is, Lindgren J expressed the view at [40] that a party seeking an injunction under s 16(1)(d) of the ADJR Act must establish a "right" to it under general law principles. Specifically, his Honour concluded at [44] that the general law does not recognise an Aboriginal person as having an interest in the specified area in an application under the Protection Act, protectable by injunctive relief. The right given by s 9 is to apply for a ministerial declaration and that does not constitute such an interest. On appeal in Williams , Gray J with whom Tamberlin J agreed, expressed the view, arguably in obiter dicta, that such power does exist ( Williams v Minister for the Environment and Heritage [2004] FCAFC 58 ; (2004) 132 LGERA 368 at [29] , [30] and [40]). Justice Ryan, in Carter v Minister for Aboriginal Affairs [2005] FCA 667 ; (2005) 143 FCR 383 at [39] - [41] , expressed the view that, as Wilcox and Lindgren JJ concluded, Johns compels the conclusion that such interlocutory relief against the third party is not available. In the present case, where the declaration has not been made and the Minister's decision has not been set aside, it is not necessary for me to consider that matter further. However, like Ryan J, I see much force in the reasoning of Wilcox and Lindgren JJ. Johns does not allow for the interlocutory order as sought. The Judiciary Act Section 39B(1A)(c) of the Judiciary Act confers jurisdiction on the court in any matter arising under a law made by the Parliament. This would include the Protection Act. However, the limitation is that the matter must arise under that Act. The Federal Court Act and Rules