1. Declarations Assoc Prof Cameron Stewart

2. Definition A declaration is a non-coercive order granted by a court that states with finality the true nature of the law or the rights, duties and interests of the applicant under it. The element of finality is important. Thus, in Nsi Group Pty Ltd v Mokas [2006] NSWSC 976, the court refused to make an interim declaration of right as to the true construction of a contract, because the construction of a contract is something to be determined once and for all at the final hearing of the dispute.

3. Why use them? It enables the parties to clarify their legal obligations and rights and avoid further costly litigation. A declaration may also establish that there are indeed rights to be enforced with the assistance of the courts, which may provide damages or some coercive remedy such as specific performance or injunction upon application.

4. Equity to Statute The declaration developed originally as an equitable remedy, though it has since become statutory in nature. The reason for this change in jurisdictional source was the restrictive practice of equity courts by which they would only grant a declaration as ancillary to some other form of relief. For example, a declaration that obligations were owed under the terms of a contract would be granted only pursuant to an action seeking a further order, such as one compelling specific performance of those obligations. Parties could not seek the court’s involvement to clarify their legal positions and then be left to resolve the matter themselves. It was said that equity would not grant ‘naked’ or mere declarations.

5. Equity to Statute The usefulness of the declaration in its own right led to its recognition by statute as a form of relief capable of being granted by all courts and without the need for other remedies to be sought by, or even made available to, the parties Judicature Acts Declaratory relief is ‘neither a legal nor an equitable remedy, but statutory’: Tito v Waddell (No 2) [1977] Ch D 106

6. NSW Supreme Court Act 1970 (NSW) s 75 The consequence of this power is that declarations can be granted irrespective of whether other remedies are sought, and whether or not the rights are derived from the common law or equity.

7. Declarations concerning statutory rights Statutes may exclude relief Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, Gibbs J, at 435–6, indicated that such a restriction upon the court’s jurisdiction could not arise merely by virtue of an implication drawn from the creation of a specialised tribunal: The jurisdiction to make a declaration is a very wide one … However, the jurisdiction may be ousted by statute, although the right of a subject to apply to the court for a determination of his rights will not be held to be excluded except by clear words.

8. Declarations concerning statutory rights Law Society of NSW v Weaver [1974] 1 NSWLR 271. In that case, the New South Wales Court of Appeal was quite prepared to grant a declaration that a solicitor had been engaged in professional misconduct, despite the existence of a specialist body to make such determinations. The court, at 272, said: It is a principle of statutory construction that a superior court of law will not be deprived of jurisdiction except by express words or necessary implication. The provision of another tribunal would not of itself ordinarily be sufficient to do so.

9. Discretion Rivers v Bondi Junction-Waverley RSL Sub- branch Ltd (1986) 5 NSWLR 362, at 376 (hope and Priestley JJA), ‘a plaintiff does not have an automatic right to a declaration because he can point to a failure by the defendant to comply with some requirement’ Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 – procedural fairness

10. Abstract or hypothetical questions Mellstrom v Garner [1970] 1 WLR 603 Harman LJ, at 604, said: [E]ach party seeks from the court a declaration as to the true interpretation of this nonsensical affair. It is not said that either of them has either broken any of its provisions or seeks to break them; it is not suggested that there are any facts whatever to be considered; and we are to make what in my younger days is to be called a declaration ‘in the air’. That is against the principles of the Court of Chancery as I understand them.

11. Abstract or hypothetical questions University of New South Wales v Moorhouse (1975) 133 CLR 1; 6 ALR 193 - Moorhouse, (a successful author) applied for a declaration that the University of New South Wales had, by placing a photocopier in its library, authorised private individuals to infringe his copyright under the terms of relevant Commonwealth legislation. The trial judge granted the declaration, although he acknowledged a lack of factual evidence that Moorhouse’s copyright had been infringed. On appeal, the High Court revoked the declaration. Gibbs J, at CLR 10; ALR 198, observed that ‘as a general rule, the power to make a declaration will not be exercised when the court is called upon to answer a question that is purely hypothetical’. This was the case here as the basis for the declaration was not any proven fact, but rather an assumption that Moorehouse’s copyright had indeed been infringed.

12. Abstract or hypothetical questions Egan v Willis (1998) 195 CLR 424 Egan refuses to produce papers to Legislative Council The Council then passed a resolution (i) finding him guilty of a contempt of the House; (ii) suspending him from sitting in the House for the remainder of that day; and (iii) ordering him to attend at the House on the following day in order that he should explain his refusal to table the documents which had been requested. Egan was escorted from the premises on to the street by the Usher of the Black Rod. Egan commenced an action in the Supreme Court of New South Wales seeking declarations that, first, the terms of the resolution were invalid, and second, that his removal to the footpath outside Parliament House constituted a trespass to his person. The matter was moved to the Court of Appeal, which found in favour of Egan only to the extent of finding a trespass to his person from the time he left the precincts of parliament and was deposited on the footpath.

13. Abstract or hypothetical questions Gaudron, Gummow and Hayne JJ, at CLR 438; ALR 529, in the High Court, ‘dealt with the merits of the matter rather than on the footing that a bare declaration with respect to the validity of proceedings in the Legislative Council should not be made’. Their Honours, at CLR 438-9; ALR 529-30, indicated that this would not have been their preferred approach to such a matter: Questions respecting the existence of the powers and privileges of a legislative chamber may present justiciable issues when they are elements in a controversy arising in the courts under the general law but they should not be entertained in the abstract and apart from a justiciable controversy. Declaratory relief should be directed to the determination of legal controversies concerning rights, liabilities and interests of a kind which are protected or enforced in the courts. This is so even though in the area of public law the ground of equitable intervention has not been limited to the protection of any particular proprietary or legal entitlement of the plaintiff.

14. Need for a ‘real interest’ — locus standi In order to obtain a declaration, the applicant must have a ‘real interest’ in the matter concerned. This is otherwise known as locus standi — the requirement that the applicant has standing to seek the relief sought. In respect of private rights such as those arising under a contract, it is easy to appreciate that persons whose rights are not at stake have no standing to ask the court to declare those of others. But it is in the area of public rights that the issue of standing is more complex.

15. Need for a ‘real interest’ — locus standi Boyce v Paddington Borough Council [1903] 1 Ch 109, at 114, Buckley J said: A plaintiff can sue without joining the Attorney- General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with … and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.

16. Need for a ‘real interest’ — locus standi In Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 Challenge to tourist development Gibbs J, at at CLR 530; ALR 270, said: [A]n interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. In this case the Australian Conservation Foundation was found not to have a ‘special interest’ in the sense required.

17. Foreseeable consequences — utility A declaration should not be granted if it would produce ‘no foreseeable consequences for the parties’.: Ainsworth A declaration ‘must have some effect on the rights and obligations of the parties to the proceeding in which the declaration is pronounced’: Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1

18. Foreseeable consequences — utility Cruse v Multiplex Ltd [2008] FCAFC 179, at [50], Goldberg and Jessup JJ said that courts, in exercising their discretion, could refuse declaratory relief in cases of this type in the following situations: 1. Where the dispute said to underlie the proceeding as a whole is entirely hypothetical … 2. Where … the underlying dispute has been settled, and it is part of the settlement that the court should be asked to make particular orders by consent. 3. As in situation 2, but where the parties are not agreed on the remedial orders which should be made (albeit that the facts and law are agreed or not controversial). 4. Where the terms of the declaration sought record the result of the case, but do not establish the content of the parties’ ongoing rights or obligations. 5. Where the declarations sought are in the form of what Gummow, Hayne and Heydon JJ described as ‘a bad precedent’ in Rural Press Limited v Australian Competition and Consumer Commission, [at CLR 91, ALR 245]. Commonwealth of Australia v BIS Cleanaway Ltd [2008] NSWCA 170

19. Defences Clean hands Laches Statutory rights? H Stanke & Sons Pty Ltd v O’Meara (2007) 98 SASR 450, at 459: In these circumstances, the declaratory orders sought by the plaintiffs would simply express the result of the application of the relevant equitable principles. Whether or not this results in the declarations themselves being properly regarded as equitable, there is little doubt that the plaintiffs are seeking the aid of equity. Accordingly, there is no reason to exclude from the court’s consideration other equitable principles such as the requirement as to clean hands.

20. Criminal law? Gedeon v Commissioner of the New South Wales Crime Commission (2008) 249 ALR 398, at 404, the High Court noted that the ‘power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings’ Airedale NHS Trust v Bland

21. Criminal law? Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505, the Crown alleged that certain documents that were the subject of a subpoena in criminal proceedings were privileged and therefore did not need to be produced. The High Court granted declaratory relief to the effect that the documents were not privileged.

22. Criminal law? Tom & Bill Waterhouse Pty Ltd v Racing New South Wales [2008] NSWSC 1013, at [74], Palmer J said that a court ‘is less reluctant to make a declaration involving questions of criminal law where the facts are clear and undisputed, there are no criminal proceedings pending, and there is a pure question of law to be decided’. In that case, Waterhouse sought a declaration that the way it conducted its betting business did not constitute a criminal offence under certain legislation. In the circumstances of the case, his Honour found that all three of the factors mentioned were satisfied and granted the declaration