Waters v Commonwealth [1951] HCA 9

High Court of Australia Fullagar J. Waters v Commonwealth [1951] HCA 9

ORDER Action struck out for want of jurisdiction. No order on motion for interlocutory injunction. No order as to costs.

Cur. adv. vult.

J Fullagar delivered the following judgment:—

March 19 Fullagar J

I have to deal with (1) a motion by the plaintiff for an interlocutory injunction, and (2) a motion by the defendant to strike out for want of jurisdiction, in an action in which the plaintiff, Fred Waters, otherwise known as Fred Nadpur, purports to sue the Commonwealth and the Director of Native Affairs. The latter defendant is appointed and holds office under Ordinances made by the Governor-General under the Northern Territory (Administration) Act 1910-1949. The plaintiff is an aboriginal within the meaning of Ordinances relating to aboriginal natives, and the cause of action is the alleged detention of the plaintiff against his will in an aboriginal reserve constituted under the Ordinances and situate at a place called Haast Bluff, about one hundred miles from Alice Springs. Before the action was commenced certain other proceedings were launched which I think it necessary briefly to mention. I will refer throughout to Fred Waters as "the plaintiff."

The alleged detention of the plaintiff commenced on 12th February 1951. Shortly after that date an application was made to me ex parte for an order nisi for habeas corpus under Order XLVIII., rule 3, of the Rules of this Court. The application was based on an affidavit by one Murray Norris, who deposed that he was the President of the North Australia Workers' Union, an organization registered under the Commonwealth Conciliation and Arbitration Act 1904-1950. I refused the application, without considering its merits, on the sole ground that I had no jurisdiction. The matter was, in my opinion, neither a matter in which original jurisdiction is conferred upon this Court by s. 75 of the Constitution nor a matter in which the Parliament has conferred jurisdiction upon this Court under s. 76 of the Constitution. I did not consider the further jurisdictional question to which I shall have to refer in a moment. No question of locus standi seemed to me to arise. Subject to certain qualifications, any person may move any court of competent jurisdiction for habeas corpus in respect of any person alleged to be unlawfully detained.