FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Order 21 of the orders made on 2 May 2011 is set aside.

3.    In lieu therefore it is declared:

3.1.    The First Respondent, MSY Technology Pty Ltd (MSY), during the period from about 28 July 2010 to 28 October 2010, in trade or commerce, in connexion with the supply or possible supply of goods or in connexion with the promotion of the supply or use of goods to consumers:

3.1.1.    by:

3.1.1.1    displaying notices and making available price lists in stores managed by it, and issuing receipts, each of which disclaimed MSY’s responsibility for providing warranties to consumers;

3.1.1.2.    displaying notices and making available price lists in stores managed by it, and issuing receipts, each of which restricted MSY’s responsibility for providing warranties to consumers;

3.1.1.3.    displaying pamphlets in stores managed by it which restricted MSY’s responsibility for providing warranties by inviting consumers to pay a fee for the warranties from a third party warranty supplier;

3.1.2.    engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the Trade Practices Act 1974 (TPA) by reason of the fact that:

3.1.2.1.    Division 2 of Part V of the TPA implied into all contracts for the supply of goods to a consumer, conditions and warranties which were non-excludable under s 68 of the TPA; and

3.1.2.2.    the availability of conditions and warranties which were implied into all contracts for the supply of goods to a consumer by Division 2 of Part V of the TPA were not dependent on a fee paid by the consumer; and

3.1.3.    falsely represented the existence, exclusion or effect of conditions, warranties, guarantees, rights or remedies available to a consumer under Division 2 of Part V of the TPA in contravention of s 53(g) of the TPA by reason of the fact that:

3.1.3.1.    Division 2 of Part V of the TPA implied into all contracts for the supply of goods to a consumer, conditions and warranties which were non-excludable under s 68 of the TPA; and/or

3.1.3.2.    the availability of conditions and warranties which were implied into all contracts for the supply of goods to a consumer by Division 2 of Part V of the TPA were not dependent on a fee paid by the consumer.

3.2.    The Second Respondent, M.S.Y. Technology (NSW) Pty Ltd (MSY NSW), during the period from about 1 July 2010 to 28 October 2010, in trade or commerce, in connexion with the supply or possible supply of goods or in connexion with the promotion of the supply or use of goods to consumers:

3.2.1.    by:

3.2.1.1.    displaying notices in stores managed by it which disclaimed MSY NSW’s responsibility for providing warranties to consumers;

3.2.1.2.    displaying notices in stores managed by it which restricted MSY NSW’s responsibility for providing warranties to consumers;

3.2.2.    engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the TPA by reason of the fact that:

3.2.2.1.    Division 2 of Part V of the TPA implied into all contracts for the supply of goods to a consumer, conditions and warranties which were non-excludable under s 68 of the TPA; and

3.2.3.    falsely represented the existence, exclusion or effect of conditions, warranties, guarantees, rights or remedies available to a consumer under Division 2 of Part V of the TPA in contravention of s 53(g) of the TPA by reason of the fact that:

3.2.3.1.    Division 2 of Part V of the TPA implied into all contracts for the supply of goods to a consumer, conditions and warranties which were non-excludable under s 68 of the TPA.

3.3.    The Third Respondent, MSY Technology (Qld) Pty Ltd (MSY QLD), during the period from about 19 July 2010 to 28 October 2010, in trade or commerce:

3.3.1.    by:

3.3.1.1.    displaying notices in stores managed by it which disclaimed MSY QLD’s responsibility for providing warranties to consumers;

3.3.2.    engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the TPA by reason of the fact that:

3.3.2.1.    Division 2 of the Part V of the TPA implied into all contracts for the supply of goods to a consumer, conditions and warranties which were non-excludable under s 68 of the TPA; and

3.3.3.    falsely represented the existence, exclusion or effect of conditions, warranties, guarantees, rights or remedies available to a consumer under Division 2 of Part V of the TPA in contravention of s 53(g) of the TPA by reason of the fact that:

3.3.3.1.    Division 2 of Part V of the TPA implied into all contracts for the supply of goods to a consumer, conditions and warranties which were non-excludable under s 68 of the TPA.

3.4.    The Fourth Respondent, MSY Technology (SA) Pty Ltd (MSY SA), during the period from about 6 August 2010 to 28 October 2010, in trade or commerce, in connexion with the supply or possible supply of goods or in connexion with the promotion of the supply or use of goods to consumers:

3.4.1    by:

3.4.1.1.    displaying notices and making available price lists in stores managed by it, and issuing receipts, each of which disclaimed MSY SA’s responsibility for providing warranties to consumers;

3.4.1.2.    displaying notices and making available price lists in stores managed by it, and issuing receipts, each of which restricted MSY SA’s responsibility for providing warranties to consumers;

3.4.2.    engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the TPA by reason of the fact that:

3.4.2.1.    Division 2 of Part V of the TPA implied into all contracts for the supply of goods to a consumer, conditions and warranties which were non-excludable under s 68 of the TPA; and

3.4.3.    falsely represented the existence, exclusion or effect of conditions, warranties, guarantees, rights or remedies available to a consumer under Division 2 of Part V of the TPA in contravention of s 53(g) of the TPA by reason of the fact that:

3.4.3.1.    Division 2 of Part V of the TPA implied into all contracts for the supply of goods to a consumer, conditions and warranties which were non-excludable under s 68 of the TPA.

3.5.    The Fifth Respondent, MSY Technology (WA) Pty Ltd (MSY WA), during the period from about 7 August 2010 to 28 October 2010, in trade or commerce, in connexion with the supply or possible supply of goods or in connexion with the promotion of the supply or use of goods to consumers:

3.5.1.    by:

3.5.1.1.    displaying notices, making available price lists and receipts in stores managed by it, and issuing receipts, each of which disclaimed MSY WA’s responsibility for providing warranties to consumers;

3.5.1.2.    displaying notices and making available price lists in stores managed by it, and issuing receipts, each of which restricted MSY WA’s responsibility for providing warranties to consumers;

3.5.1.3.    displaying pamphlets in stores managed by it which restricted MSY WA’s responsibility for providing warranties by inviting consumers to pay a fee for the warranties from a third party warranty supplier;

3.5.2.    engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the TPA by reason of the fact that:

3.5.2.1.    Division 2 of Part V of the TPA implied into all contracts for the supply of goods to a consumer, conditions and warranties which were non-excludable under s 68 of the TPA;

3.5.2.2.    the availability of conditions and warranties which were implied into all contracts for the supply of goods to a consumer by Division 2 of Part V of the TPA are not dependent on a fee paid by the consumer; and

3.5.3.    falsely represented the existence, exclusion or effect of conditions, warranties, guarantees, rights or remedies available to a consumer under Division 2 of Part V of the TPA in contravention of s 53(g) of the TPA by reason of the fact that:

3.5.3.1.    Division 2 of Part V of the TPA implied into all contracts for the supply of goods to a consumer, conditions and warranties which were non-excludable under s 68 of the TPA; and/or

3.5.3.2.    the availability of conditions and warranties which were implied into all contracts for the supply of goods to a consumer by Division 2 of Part V of the TPA were not dependent on a fee paid by the consumer.

4.    There is no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    The Australian Competition and Consumer Commission (the ACCC) instituted civil penalty proceedings against the respondents (collectively, the MSY parties) arising out of representations in their stores as to the limited or non-existent nature of customers’ warranty rights. The ACCC alleged that, in making such representations, the MSY parties had engaged in conduct which was in contravention of s 53(g) of what was then known as the Trade Practice Act 1974 (Cth) (TPA). It also alleged that the conduct was misleading or deceptive, contrary to s 52 of the TPA.

2    Civil penalties may be imposed in respect of a contravention of s 53(g) of the TPA but not in respect of a contravention of s 52. A contravention of either may ground a claim for declaratory, injunctive and ancillary relief. The ACCC additionally sought such relief against the MSY parties.

3    The MSY parties admitted the alleged contraventions. A statement of facts agreed as between the ACCC and the MSY parties was tendered before the learned primary judge. At the same time, the parties proposed to his Honour orders the terms of which had been agreed between them. These proposed orders provided for the imposition of penalties, the making of declarations, the granting of injunctions, the undertaking of a compliance programme and the publication of corrective advertising. His Honour, correctly, approached the question of whether to make the proposed orders on the basis that consent neither conferred power to make the same nor bound him in the way in which a discretion ought to be exercised.

4    In the result, the leaned primary judge made orders in the terms proposed, save that he declined to grant declaratory relief: Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) (2011) 279 ALR 609. His Honour declined that relief because he considered that he was bound so to do by an earlier judgment of the Full Court: B.M.I. Ltd v Federated Clerks’ Union of Australia (N.S.W.) Branch (1983) 76 FLR 141 (B.M.I.). More particularly, his Honour considered that declaratory relief could not be granted in the absence of a contradictor and, contrary to his own understanding of the position as a result of his analysis of other authorities, further considered that, sitting in the original jurisdiction, he was bound by B.M.I. to hold that the consent of the MSY parties to the granting of such relief meant that there was no contradictor.

5    The ACCC has appealed against so much of the orders made by the primary judge as dismissed its claim for declaratory relief. It contends that B.M.I. did not bind his Honour to decline to grant declaratory relief or, if it did, that that case was wrongly decided and should not be followed. More particularly, it contends that, in the circumstances of this case, the MSY parties were contradictors and that there is a public interest in the granting of declaratory relief. It submits that the appeal should be allowed and that the declaratory relief originally sought should be granted.

6    For their part, the MSY parties have, in respect of the appeal, filed a submitting appearance. That is their right. We are in no way critical of them for exercising that right. Obviously enough and unlike the ACCC, they do not have a strategic interest in the circumstances in which declaratory relief may be ordered in this type of case. In light of the stance taken by the MSY parties and in recognition of the wider importance of the issues raised by the appeal, the Commonwealth took the commendable course of retaining counsel to seek leave to make submissions as amici curiae. That leave was readily given. Their submissions were of assistance not only in relation to B.M.I. but also as to the nature of the power to grant declaratory relief and the circumstances in which such relief may be granted.

7    The facts giving rise to the contraventions are more fully described in the reasons of the primary judge. It is not necessary to rehearse them for the purpose of determining the appeal. Rather, the question is one of principle namely, whether, having regard to the consent by each of the parties to the granting of, materially, the declaratory relief proposed, his Honour was thereby prevented from granting that relief.

8    Though the Federal Court is not a court of unlimited general jurisdiction, there is no question that, by statute, it has power to grant declaratory relief in cases in which jurisdiction has been conferred upon it. Indeed, the existence of jurisdiction is the only qualification expressly found in the Federal Court of Australia Act 1976 (Cth) (FCA) in relation to the granting of declaratory relief. Subsection 21(1) of the FCA empowers the Court, in civil proceedings in relation to a matter in which it has original jurisdiction, to make binding declarations of right, whether or not any consequential relief is or could be claimed. That section further provides, by s 21(2), that a suit “is not open to objection on the ground that a declaratory order only is sought”.

9    Section 21 states a position which, at least in modern times, is regarded as prevailing in any event, having regard, so far as this Court is concerned, to its creation as a superior court of record and one of law and equity (s 5, FCA) and the general conferral of power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate (s 23, FCA): Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582 (Ainsworth). In relation to matters in which jurisdiction is conferred upon it, these two sections assimilate the position of the Federal Court with that of superior courts of record of general jurisdiction. That the latter courts are now regarded, as stated in Ainsworth, as having inherent power to grant declaratory relief used not to be the general view, as Aronson, Dyer and Groves correctly opine in Judicial Review of Administrative Action, (4th Ed, Lawbook Co, 2009) (Aronson) at [15.15]. The same may be said of what, in the case of this Court, would be more aptly described, in light of s 5 and s 23 of the FCA and the prescription by s 19 of that Act that the Court has such jurisdiction as is conferred upon it by statute, as implied or incidental, rather than inherent, power. Section 21 of the FCA was enacted well before the statements made in Ainsworth in relation to the power to grant declaratory relief. Its purpose is to put the existence of the power to grant declaratory relief beyond doubt and to make clear that a suit is not open to objection because only a declaration of right is claimed. It is helpful to recall the heritage of s 21.

10    The origins of s 21 of the FCA may be traced to remedial United Kingdom legislation in the 1850s conferring power on the Court of Chancery to grant declaratory relief, which was in turn adopted by Australian colonial legislatures: Aronson, at [15.20]. Even then, the practice was that, though that court could make binding declarations of right, these were granted only if some right to relief which that court could grant, whether claimed or not, were shown: Jackson v Turnley (1853) 1 Drew 617; 61 ER 587; Rooke v (Lord) Kensington (1856) 2 Kay & J 753; 69 ER 986; (Lady) Langdale v Briggs (1856) 8 De G.M. & G. 391; 44 ER 441. In the English common law courts at that time an action for a judgment declaratory of existing or future rights was not possible. Even after the Judicature Acts 1873 (UK) and before 1883, what had hitherto been the practice of the former Court of Chancery was followed: Cox v Barker (No 1) (1876) LR 3 Ch D 359. The Rules of the Supreme Court for England and Wales 1883 (RSC) contained a rule, O 25 r 5, which liberalised further the hitherto prevailing position in relation to the granting of declaratory relief. That rule provided:

No action or other proceeding shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not.

11    This rule was seen at the time as a significant reform with O 25 r 5 being described by Lindley MR as “an innovation of a very important kind”: Ellis v Bedford (Duke of) [1899] 1 Ch 494 at 515 and by Stirling LJ as a rule which made “a great change in the law with reference to declaratory judgments”: West v (Lord) Sackville [1903] 2 Ch 378 at 393. Section 21 of the FCA replicates for this Court O 25 r 5 of the RSC. The passage of time since 1883 and the frequency of encounter in modern times with claims for and grants of declaratory relief have a tendency to diminish an appreciation of the reformist purpose of s 21 of the FCA and its cognates. An appreciation of the heritage of the section and its purpose is of assistance in the resolution of the present appeal.

12    In Australia, it was the recollection of this heritage which preceded observations made by Gibbs J (as his Honour then was) in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 (Forster v Jododex) at 437-438 with respect to another analogue of O 25 r 5 of the RSC, s 10 of the Equity Act 1901 (NSW):

It is neither possible nor desirable to fetter the broad discretion given by s. 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. should in general be satisfied before the discretion is exercised in favour of making a declaration:

The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought.

Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v. Egbuna:

After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration.

[Footnote references omitted]

13    These observations, which in turn adopt authoritative statements made in the United Kingdom with respect to the granting of declaratory relief, particularly by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 (Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd), have become the root authority in Australia in relation to the granting of such relief pursuant to powers which are analogues of the original O 25 r 5 of the RSC: see, for example, their recognition and adoption by Lockhart J, Spender and Cooper JJ agreeing, in this Court in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 414 (Aussie Airlines). Aussie Airlines was recently approved by the High Court in Edwards v Santos Ltd (2011) 242 CLR 421 in a way which suggests that there should be no narrow conception of the power to grant declaratory relief.

14    In the passage from the speech of Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd, set out above in the quote from the judgment of Gibbs J in Forster v Jododex, His Lordship explained that a proper contradictor was “some one presently existing who has a true interest to oppose the declaration sought”. There is a difference between having an interest to oppose the granting of declaratory relief and, having that interest, choosing whether or not to oppose the granting of that relief. The ACCC submitted that only the former, not the existence of actual opposition by a person having an interest to oppose, is a necessary prerequisite for the granting of declaratory relief.

15    Just this point was made by Dawson J, sitting in the High Court’s original jurisdiction, in Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643 (Oil Basins). To appreciate this it is necessary to mention something of the background to that case. It arose against the background of a dispute between parties to a royalty agreement as to the amount payable by the assignees of the party with the payment obligation, “the producers”, to the assignee of the party entitled to royalty payments, Oil Basins Ltd. One issue in the dispute arose from an assertion by the producers that some of the petroleum resource rent tax (PRRT) paid by them was paid on behalf of the Oil Basins Ltd. The producers asserted that they were entitled to deduct this part of the PRRT from those royalty payments. Oil Basins Ltd disputed that it was liable to pay PRRT and that the producers paid tax on its behalf. Oil Basins Ltd instituted proceedings in the High Court’s original jurisdiction joining the Commonwealth, the Commissioner of Taxation and also the producers as defendants. The Commissioner had neither issued an assessment to Oil Basins Ltd in respect of a liability on its part for PRRT nor given any indication to that company as to whether he had formed a view as to whether it was or was not liable to pay PRRT. The Commonwealth and the Commissioner, whose interests were identical, contended that Oil Basins Ltd was not entitled to any relief against them because the statement of claim did not allege any material fact from which it might be concluded that there had been or would be any wrongful act or omission on the part of the Commissioner.

16    Against that background and with reference to the passage from Lord Dunedin’s speech in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd, as cited by Gibbs J in Forster v Jododex, Dawson J stated (178 CLR at 648-650):

Be that as it may, it is plain that the plaintiff has a real interest in obtaining a declaration that it is not liable to pay P.R.R.T. …

The question raised by the plaintiff is neither abstract nor hypothetical and the answer to that question will clearly produce consequences for the parties. In those circumstances I would, for my own part, doubt whether the failure on the part of the Commissioner to indicate whether or not he disputes the plaintiff's claim could preclude the plaintiff from seeking against him the relief which it does. The most that could be urged is that there is no proper contradictor, but I doubt whether that is so when the Commissioner's participation in the action is likely to force him to abandon his present stand of neutrality. Even if he were to maintain that stand, I doubt whether that would prevent him from being a proper contradictor. He clearly has a true interest in the plaintiff's claim and, if he were to choose not to oppose it and to abide by any order which the Court might make, that might perhaps amount to no more than the performance of his role as a contradictor in a particular manner.

But there is no need in this case to reach any conclusion whether the Commissioner is a proper contradictor because the producers obviously have a true interest in opposing the declaration sought. There is no requirement that all defendants in an action claiming a declaration must oppose the plaintiff. In Forster v Jododex Australia Pty Ltd, for example, the mining warden submitted to the order of the court, but the court made a declaration binding upon him where another party opposed the declaration being made.

[Emphasis added; footnote references omitted]

Though it is clear from this passage that Dawson J considered it unnecessary finally to determine the point, it is equally clear that his Honour’s understanding of what Lord Dunedin had stated in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd as to who was a “proper contradictor” was that it was sufficient if the party had a true interest in the plaintiff's claim even if that party came to see that interest served by not opposing the relief claimed. That dictum supports the submission made by the ACCC.

17    Similar support is to be found in the judgment of French J (as his Honour then was) in IMF (Australia) Ltd v Sons Of Gwalia Ltd (Administrator Appointed) (2004) 211 ALR 231 (IMF (Australia) Ltd v Sons Of Gwalia ) at [47]:

47    The requirement of a proper contradictor in a declaratory context is not merely to ensure that the court will be provided with all materials but also that absent a contradictor there is no person to be bound by the relief sought: Acs v Anderson [1975] 1 NSWLR 212 at 215 per Hutley JA citing PW Young, Declaratory Orders, 1st ed, Butterworths, Sydney, 1975, p 210. A proper contradictor, for jurisdictional purposes, in my opinion cannot be confined to the class of party who comes to court ready to oppose the relief sought. There may be a case in which a party, whether a private person or body or a statutory regulator, expresses opposition to, and an intention to oppose, a proposed course of action by another party on the basis that it is in breach of some contractual or statutory prohibition. The party opposing the conduct may however decide for any one or more of a variety of reasons not to contest declaratory proceedings about the lawfulness of the proposed conduct. So the declaration may be made by consent or may be uncontested. This does not mean that the court lacks jurisdiction or power to grant the declaration in such a case. The proceedings will have resolved a pre-existing controversy. A more difficult question arises where a party with an interest in opposing a particular course of conduct refuses to say whether it will take any action in respect of that conduct. Such a party may be said to be one which, notwithstanding its silence, has an interest in opposing the proposed conduct.

[Emphasis added]

18    Lord Dunedin’s speech in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd is cited with approval by Lord Woolf and Woolf J in their work, Zamir & Woolf The Declaratory Judgment (4th Ed, Sweet & Maxwell, 2011) at 6-12 in their discussion of the topic, “The nature of the necessary interest of the defendant”. In the course of that discussion the learned authors state (at 6-16):

Usually the court will adopt an extremely pragmatic approach to the circumstances of a particular case. It will be reluctant to grant a declaration if a person who could be prejudiced by the grant of that declaration has not been made a party. Equally, however, it will be anxious to protect persons from unnecessarily being joined in proceedings in view of the expense and inconvenience involved. The decision of the court in any particular case will be very much a matter for its discretion and except in those rare cases where some error of principle can be ascertained, an appellate court will not interfere with the decision of the judge at first instance.

This statement reflects the learned authors’ understanding of the practice in England and Wales but the position in this Court is no different. Their discussion of the topic is noteworthy for the absence of any suggestion that an interest to oppose is to be equated with active opposition or that the latter is a condition precedent to the granting of declaratory relief.

19    IMF (Australia) Ltd v Sons Of Gwalia is also noteworthy for the highlighting by French J of the interplay between the limits of federal jurisdiction and the availability of declaratory relief. His Honour (at [46]) observed of Forster v Jododex that it was a case determined in the Supreme Court of New South Wales, which was not then exercising federal jurisdiction. His Honour had earlier observed (at [43]), by reference to Abebe v The Commonwealth (1999) 197 CLR 510 at 524, that the exercise of federal jurisdiction was dependent upon the existence of a “matter” in the constitutional sense, ie a justiciable controversy in respect of rights, duties, liabilities or obligations. Referring to Ainsworth (1992) 175 CLR at 582, French J stated (at [43]) that, “the availability of declaratory relief is confined by the boundaries of judicial power”. From this it followed, according to French J (at [43]), that “A declaration sought upon the basis of an hypothetical situation or facts which are contingent or may never occur has the character of an advisory opinion which does not relate to a real question”. In his summary of principles relating to the granting of declaratory relief in Aussie Airlines (1996) 68 FCR 406 at 414, Lockhart J made a like point, referring to In re Judiciary and Navigation Acts (1921) 29 CLR 257.

20    These observations by French J and Lockhart J draw attention to a well recognised condition precedent to a valid exercise of federal jurisdiction. If there were no initial controversy with respect to a right, duty, liability or obligation as between an applicant and a respondent with an interest in the same, that absence of controversy would, in this Court, go not just to whether, as a matter of discretion, the power to grant declaratory relief should be exercised but rather to the non-existence of a “matter” and thus the absence of a subject for the exercise of federal jurisdiction. None of this is to suggest any want of jurisdiction if, after the institution of proceedings, what was once a controversy is resolved.

21    This jurisdictional constraint upon the power of this Court to grant declaratory relief in the exercise of its necessarily federal jurisdiction is what lies behind the explicit jurisdictional qualification found in s 21 of the FCA. Subject to this qualification, what was said by Gibbs J in Forster v Jododex in relation to the granting of declaratory relief applies just as much in this Court as in any other which has power to grant declaratory relief.

22    The primary judge canvassed pertinent authority, commencing with Forster v Jododex. His Honour explored in some depth the foundation in Scottish jurisprudence for the Scottish rules referred to by Lord Dunedin in his speech in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd, concluding that the summary offered by His Lordship was accurate. It is quite clear from his Honour’s reasons for judgment that, but for the inhibition that his Honour felt B.M.I. presented, his view would have been that the consent of the MSY parties did not mean that they were not a proper contradictor.

23    That is an apt note on which to turn to consider B.M.I..

24    B.M.I. was an industrial case in which, as Keely and Beaumont JJ record (76 FLR 141 at 151) in their joint judgment:

…the applicants sought several distinct forms of relief: first, pursuant to s 110 of the Conciliation and Arbitration Act 1904 (Cth) (the Act), an interpretation of certain provisions of the Vehicle Industry — Repair, Services and Retail — Award 1980 (the Federal award); secondly, a declaration, pursuant to s 21 of the Federal Court of Australia Act 1976 giving effect to the interpretation of the Award contended for by the applicants; and thirdly, a declaration, pursuant to s 108 of the Act, that the Clerks' (State) Award, an award made under the Industrial Arbitration Act 1940 (NSW) is invalid by virtue of s 65 of the Act in so far as that Award purports to bind the first applicant in respect of its employees performing the various categories of work specified in the application.

25    Their Honours further record that the differences between the parties in that case had been “recently resolved” such that, as was jurisdictionally permitted under the then Conciliation and Arbitration Act 1904 (Cth) (Arbitration Act), a single judge of the Court had dealt with the first and second of these claims for relief, making certain orders by consent in respect of the first claim and declining to grant declaratory relief in respect of the second claim. Under the Arbitration Act, the jurisdiction of the Court in respect of the third claim was required to be dealt with by a Full Court. That jurisdiction, conferred by the then s 108 of the Arbitration Act, allowed for a declaration to be claimed that a State law dealing with an industrial matter, or an order, award, decision or determination of a State Industrial Authority, was invalid under s 65 of that Act. Section 65 of the Arbitration Act provided that, where a State law or industrial instrument was inconsistent with or dealt with a matter dealt with in a federal award, “the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid”.

26    Whether or not, in light of what had become an absence of opposition by such respondents as had taken an active part in the proceedings, declaratory relief under s 108 of the Arbitration Act should be granted produced a difference of opinion in B.M.I. as between the presiding judge, Northrop J, on the one hand and Keely and Beaumont JJ on the other. For present purposes, the judgment of Northrop J is noteworthy for his Honour’s appreciation of the origin in O 25 r 5 of the RSC of reforms to the power to grant declaratory relief and of a related subsequent disposition on the part of courts to interpret that rule and its analogues liberally. He remarked (76 FLR at 151) of s 108 of the Arbitration Act that it “should not be restricted by the artificiality of past equitable restrictions”. We respectfully agree with that remark.

27    The statement in the joint judgment of Keely and Beaumont JJ which was the source of the inhibition felt by the learned primary judge was this (76 FLR at 154):

In our view, not only is there no contradictor in the present case but also the question now put is academic and as a matter of discretion, the court should not grant declaratory relief in such a case, even where it has a statutory jurisdiction to do so.

28    Their Honours had earlier (76 FLR at 153-154) stated:

If the matter were merely one of private right between particular parties, for example, a question as to the respective rights of parties under a contract, it may well be appropriate for a court to make a declaration as to those rights by consent. In such a case, the public and other parties cannot be affected, let alone bound, by such a declaration.

But different considerations apply in a case such as the present. If a declaration were made, even in the terms sought, its practical operation may well extend beyond the activities of the first applicant. The claim has been fully argued by the applicants and if we were to make the declarations sought, we have little doubt that the grant of such relief would be perceived by others as the expression by the court of its views on the matter, notwithstanding that the court has not had the benefit of any contrary argument.

29    Of this passage, the learned primary judge observed (at [42]):

Conceptually their Honour’s statement is, with respect, analytically opaque. Forster requires a contradictor; Beaumont and Keely JJ held that there was no contradictor because there was no contest. There is nothing in Forster to indicate that the contradictor requirement was different in cases involving public as opposed to private rights. The origin or nature of the private rights exception is obscure. That does not mean that the fact that public rights are involved is irrelevant. To the contrary the public nature of the rights involved will almost always be relevant to whether a declaration should be granted. The present point is that that proposition has got nothing to do with the contradictor rule.

Because this was a considered expression of opinion by a majority of a Full Court, his Honour considered himself obliged to hold that, in the circumstances of the present case, there was no proper contradictor. Accordingly, he refused declaratory relief.

30    Subject to one qualification, we agree with the observation made by the primary judge. The qualification is that we would not, with respect, describe the joint judgment of Keely and Beaumont JJ in B.M.I. as “analytically opaque”. Nonetheless, to the extent that the statement in the joint judgment of Keely and Beaumont JJ suggests that the absence of opposition by an interested party to the declaratory relief sought means that there is no proper contradictor and that this disentitles an applicant to a grant of declaratory relief, it evidences a misunderstanding of the explanation given by Lord Dunedin in his speech in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd, adopted by Gibbs J in Forster v Jododex. The correct position is as opined by Dawson J in Oil Basins and by French J in IMF (Australia) Ltd v Sons Of Gwalia in the passages quoted above. In this case, the MSY parties had an interest to oppose the declaratory relief sought. That was sufficient to make them a proper contradictor. There was no want of power to grant declaratory relief. Rather, the question was whether, in light of the events which had transpired, which relevantly included a lack of any continued opposition to the declaratory relief sought, that relief ought still to be granted as a matter of discretion. B.M.I. should be understood as a case where, because the question of the invalidity had become academic, that discretion had been exercised so as to refuse the declaratory relief sought. As the passage from their Honours’ joint judgment reveals, that was an additional basis upon which Keely and Beaumont JJ refused the application for declaratory relief.

31    Whether the rendering academic of the controversy told against the granting of declaratory relief was, as the dissent of Northrop J in that case evidences, a subject upon which reasonable minds might reasonably differ. Even though a declaration would only bind the parties to the proceeding, it is evident that Keely and Beaumont JJ were nonetheless concerned that the declaration might have a wider industrial resonance. Given the nature of the jurisdiction invoked in B.M.I., it was not irrelevant to take that into account.

32    It does not follow from B.M.I. that, in every case in which a justiciable controversy has become academic, declaratory relief should be refused. The matter is always one for the exercise of a judicial discretion. In some cases that feature may tell against the granting of such relief; in others the declaratory relief proposed to the court may be a feature of the agreement between the parties that has rendered that controversy academic. There can be no hard and fast rule.

33    In Australian Competition and Consumer Commission v Willesee Healthcare Pty Ltd (No 2) [2011] FCA 752 Dodds-Streeton J considered that B.M.I. was to be explained on this basis. Later, in Australian Competition and Consumer Commission v Sampson [2011] ATPR 42-374, Tracey J expressed agreement with her Honour’s analysis. Unlike the primary judge, her Honour considered that B.M.I. was distinguishable on the basis that the statement made by Keely and Beaumont JJ concerned s 108 of the Arbitration Act rather than s 21 of the FCA. That, with respect, may well be a distinction without a difference but it is unnecessary to express any concluded view on that subject. Her Honour’s opinion (and that of Tracey J) as to who constitutes a proper contradictor accords with our own and that which, but for B.M.I., the primary judge would have shared.

34    It follows that the primary judge was not bound to refuse to grant the declaratory relief sought on the basis of an absence of a proper contradictor. It was not suggested that, if the appeal were allowed, the case should be sent back to the learned primary judge for further consideration. Therefore, it falls to us to decide whether the discretionary power in s 21 of the FCA should be exercised so as to grant declaratory relief.

35    As has been rightly said, “The remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment”: Warramunda Village Inc v Pryde (2001) 105 FCR 437 at [8]. There must be some utility in the granting of declaratory relief. In Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at [95] (Rural Press) Gummow, Hayne and Heydon JJ saw that utility in the setting out of the basis of the liability found and, in turn, in the basis for the penalties imposed. There is a similar utility here. Further, the declarations which the parties proposed do not, in contrast with those remarked upon in Rural Press, possess the vice of imprecision as to the way in which the statute was contravened.

36    The appeal should be allowed. The order refusing the grant of declaratory relief should be set aside. In lieu, there should be declarations in the terms proposed by the parties.

Associate:

Dated:    18 April 2012