Clark v Minister for the Environment (No 2) [2019] FCA 2028

The question of the power of the Court to restrain a third-party from taking action that would threaten the subject of a judicial review proceeding arose in the context of litigation commenced by the traditional owners of Djab Wurrung Country, near Ararat in Victoria. The applicants had sought a protective declaration from the Commonwealth Minister for the Environment[1] (Commonwealth Minister) over parts of Djab Wurrung Country and six trees located in that area that were claimed to be of cultural significance, and under threat of injury or desecration due to a proposed upgrade of the Western Highway. The Commonwealth Minister had declined to make such declarations and the applicants sought judicial review of the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

The applicants were successful in their application for judicial review: Clark v Minister for the Environment [2019] FCA 2027. Justice Robertson ordered that the Commonwealth Minister’s decision be set aside, and that the applicants’ application for a protective declaration be referred to the Commonwealth Minister for further consideration according to law. However, the applicants had also sought consequential relief against the State of Victoria. The State was not a party to the judicial review proceedings, but was, through the Major Roads Project Authority, the entity responsible for the delivery of the proposed road works which were said to constitute the threat to Djab Wurrung Country and the trees. The applicants sought an order that the State be joined to the proceedings, and also sought an order to restrain the State from undertaking any works in connection with the upgrade until the Commonwealth Minister had remade the decision which was subject to review.

The question for consideration was whether the Court had power to make the orders sought by the applicants and, if so, what the source of that power was. Three possible sources were identified. First, the applicants urged the Court to find such a power in s 16(1)(d) of the ADJR Act, which provides that the Court may, in its discretion, make “an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from doing, of which the court considers necessary to do justice between the parties.” Secondly, the applicants submitted that such a power would fall within the Court’s inherent jurisdiction to protect its processes, “so that those processes not be stultified”. Thirdly, they argued that s 23 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), which provides the Court with powers in relation to matters in which it has jurisdiction “to make order of such kinds, including interlocutory orders […] as the Court thinks appropriate,” was a source of power.

Justice Robertson rejected all three bases as providing a source of power to make the orders sought by the applicants: Clark v Minister for the Environment (No 2) [2019] FCA 2028 (Clark (No 2)).

First, his Honour applied the reasoning of the majority in Johns v Australian Securities Commission,[2] who held that absent a right to relief against a person under law, the Court does not have power under s 16(1)(d) of the ADJR Act to grant any injunction against that person. His Honour then turned to the question of whether the applicants had a right to relief under general law against the State, holding that they did not. The Heritage Protection Act did not confer upon the applicants any right until a protective declaration had been made. Citing the observations of Wilcox J in Bropho v Tickner, Robertson J considered that this was not a case where the action of a third party is unlawful unless and until a valid administrative decision is made; as, for example, the grant of a consent under town planning legislation. In so far as the Heritage Protection Act was concerned, unless and until there was a valid declaration containing provisions for the protection or preservation of the trees and the specified area, the State’s activities in undertaking the roadworks were lawful. Further, Robertson J observed that (setting aside the law of native title) the general law does not recognise Aboriginal persons as having a legally enforceable interest in a specified area able to be enforced or protected by injunctive relief. A right to have an application considered under the Heritage Protection Act also does not constitute such an interest.[3] Until a declaration was made under the Heritage Protection Act, the applicants had no legal interest in the area or the trees which was protected by the general law: Clark (No 2), [21].

Secondly, his Honour noted earlier obiter observations of Gray J (with whom Tamberlin J agreed) to the effect that if s 16(1)(d) of the ADJR Act does not provide the Court with the power to preserve the subject matter of a controversy when the Court finds it necessary to remit that controversy for further consideration by a decision-maker, then such a power “must derive from s 23 of the Federal Court Act”.[4] Justice Robertson did not consider himself bound by Gray J’s obiter comments, and declined to follow this approach, preferring the approach of Bennett J in Dates v Minister of Environment, Heritage and the Arts,[5] in which her Honour held that s 23 of the Federal Court Act does not confer a freestanding power to grant an injunction, unrelated to the identification of rights or duties otherwise existing.

Thirdly, his Honour accepted that no other source of power existed in the Court to grant the interlocutory relief sought by the applicants against the State. In particular, his Honour rejected a submission that a source of the power was to be found in “doctrines and remedies […] which protect the integrity of [the Court’s] processes once set in motion”.[6] This was because, having made an order in the application for judicial review setting aside the original decision and remitting the application to the Commonwealth Minister for further consideration according to law, the exercise of the Court’s jurisdiction was complete and the Court’s processes were no longer engaged: Clark (No 2), [17]-[20].

Accordingly, the applicant’s interlocutory application was dismissed.