CHAN V. THE COMMONWEALTH OF AUSTRALIA

Stephen J. 12/12/1980

CHAN Vv.

THE COMMONWEALTH OF AUSTRALIA

I propose to accede to this application for an interlocutory injunction and to enjoin the Defendants from

continuing to detain the plaintiff in custody in Pentridge

Gaol.

The use of injunctive relief for such a purpose is unusual, but this in itself provides no ground for withholding that relief if jurisdiction is made out and if I am satisfied

that as a matter of discretion an injunction ought to go.

Section 31 of the Judiciary Act confers jurisdiction

generally in this area - Beecham Group Ltd v. Bristol

Laboratories Pty Ltd. (1968) 118 C.L.R. 618 at p. 622, and Order 49, rule 12 (1) of the Rules of this Court are applicable. It was not suggested in argument that because the present injuctive relief is Girected to securing the plaintiff's release from custody this in itself was enough to deny him the remedy

sought.

It was said on the Defendants' behalf that s.39 (8) of the Migration Act confers an exclusive power to order the

release of the plaintiff. I regard that sub-section as

directed to a very different situation to the present; one in which there has been a curial decision that a deportation order is invalid. It does not, I think, give rise to any inference as to want of jurisdiction in the present case nor do I regard the general power conferred by the Judiciary Act

to have been rendered inapplicable by any specific provision

of the Migration Act.

The jurisdiction is discretionary, I intend to exercise my discretion in accordance with the judgment of this Court in the Beecham Group case. I have accordingly looked at two questions: the establishment of a prima facie case as that term is there explained and the balance of

hardship or injury.

I do not propose to discuss the several grounds upon which the plaintiff, in his statement of claim, attacks the legality of his present imprisonment and proposed deportation; to do so would in this case be very much to "undertake a preliminary trial." I have heard argument concerning these grounds, not of course in the detail which will be required in due course but at sufficient length to enable me to appreciate the substance of each ground and of what is urged against it; I am indebted to Counsel in this respect for the clarity and conciseness of their submissions. I had previously heard something of the plaintiff's contentions