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 support of which it is sought. There must be a real issue to be tried (or a prima facie case) in support of some form of final relief to which the interim injunction is connected. Here, the proposed interim injunction connects to the proposed final injunction that would require compliance with the requirements of the removal notice as interpreted by the Commissioner (although, being mandatory in form and effect, it does not so connect by preserving the status quo pending a final hearing). For the interim injunction to be continued, the Commissioner must show that she has a prima facie case for the final injunction that she seeks. So much was not controversial.

21 Two issues were agitated in this connection:

(a) whether the removal notice was a valid exercise of power under s 109; and

(b) whether, given that the notice only requires (and can only require) X to take "reasonable steps" to ensure removal of the material, the proposed final injunction goes further than what is required for compliance with the notice.

Validity of the removal notice

22 Section 109 of the OS Act, which is the source of power for the removal notice, has been set out above. If the notice was not authorised by s 109, it is of no legal effect and clearly cannot form the basis for the grant of an injunction under s 121 of the RP Act.

23 X Corp argues that, therefore, the issue of a valid removal notice is part of what the Commissioner must prove at a final hearing. The Commissioner has led no evidence at this interlocutory stage for the validity of the removal notice, other than the notice itself. Such evidence as has been adduced (by X Corp) concerning the delegate's reasons for issuing the notice indicates, according to X Corp, that the Commissioner probably will not be able to establish the validity of the notice. That evidence will be considered shortly.

24 The argument that the Commissioner must prove the validity of the notice at the final hearing cannot be accepted at its highest. In Ousley v The Queen (1997) 192 CLR 69 at 130–131 (Ousley), Gummow J said:

eSafety Commissioner v X Corp [2024] FCA 499