Declarations
Assoc Prof Cameron Stewart
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.
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.
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.
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
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.
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.
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.
Discretion
• Rivers v Bondi Junction-Waverley RSL Subbranch 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
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.
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.
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.
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.
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.
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 AttorneyGeneral 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.
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.
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
Foreseeable consequences — utility
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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
Defences
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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.
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
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.
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