FEDERAL COURT OF AUSTRALIA

Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002

PRACTICE AND PROCEDURE – power of the Court to decide any question separate from the trial in the proceedings – demurrer not available in the Federal Court – dangers that stem from the separate determination of questions – circumstances of the case render separate determination of questions appropriate –  Federal Court Rules O 29 r 2

Federal Court Rules O 11 r 9, O 11 r 16, O 20 r 3, O 29 r 1, O 29 r 2

Trade Practices Act 1974 (Cth) ss 45(2)(a)(ii), 45(2)(b)(ii)

High Court Rules 2004 r 27.07

Tepko Pty Ltd v Water Board (2001) 206 CLR 1, cited

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, discussed

Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488, cited

Harts Australia Ltd v Commissioner of Taxation (2001) 109 FCR 405, cited

Kockums AB v Commonwealth [2002] FCAFC 138, cited

Reading Australia Pty Ltd v Australian Mutual Providence Society [1999] FCA 718, cited

South Australia v Commonwealth (1962) 108 CLR 130, cited

Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117, cited

Hughes and Vale Pty Ltd v New South Wales (1952) 87 CLR 49, cited

Levy v Victoria (1997) 189 CLR 579, discussed

Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd and Ors

NSD 740 of 2003

SACKVILLE J

SYDNEY

22 JULY 2005

THE COURT ORDERS THAT:

1.         Pursuant to Federal Court Rules, O 29 r 2(a), the following questions be heard and determined separately from and before the determination of all other questions in the proceedings:

(a)    Assuming the facts as alleged in the Second Further Amended Statement of Claim are established, does the First to Eighth Respondents’ Defence to the Second Further Amended Statement of Claim based on the construction and operation of s 45 of the Trade Practices Act 1974 (being the matter pleaded in para 18 of the Defence filed 15 July 2005) raise a valid and complete defence to the whole of, or to any cause of action pleaded in, the Second Further Amended Statement of Claim?

(b)   Assuming the facts as alleged in the Second Further Amended Statement of Claim are established, does the First to Eighth Respondents’ Defence to the Second Further Amended Statement of Claim based on the Constitution (being the matter pleaded in para 20 of the Defence filed 15 July 2005) raise a valid and complete defence to the whole of, or to any cause of action pleaded in, the Second Further Amended Statement of Claim?

2.         The costs of paragraph 1 of the motion be costs in the cause.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

the dangers of separate questions

1                     Order 29 r 2 of the Federal Court Rules (‘FCR’) empowers the Court to make orders for

‘(a)      the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings’.

A ‘question’ includes (r 1):

‘any question or issue in any proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise’.

2                     In recent times, repeated reminders have been given of the dangers that attend the making of orders for the separate trial of particular questions or issues that arise (or are thought to arise) in proceedings.  In Tepko Pty Ltd v Water Board (2001) 206 CLR 1, Kirby and Callinan JJ (who dissented on the main issue) warned (at [168]) that the:

‘attractions of trials of issues rather than of cases in their totality, are often more chimerical than real.  Common experience demonstrates that savings in time and expense are often illusory…’

            Their Honours pointed out that the dangers of a trial of separate issues include the potential for interlocutory appeals delaying final determination of the proceedings.  For this and other reasons they expressed the view (at [170]) that:

‘[s]ingle-issue trials should … only be embarked upon when their utility, economy and fairness to the parties are beyond question’.

3                     The dangers of a separate trial of particular questions are illustrated by numerous cases in which orders for the determination of separate questions have effectively miscarried.  Examples include Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 (where the High Court set aside declarations that were not based on facts found by a court); Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488 (where the answers to separate questions concerning the construction and effect of legislation were held not to resolve the factual dispute between the parties); Harts Australia Ltd v Commissioner of Taxation (2001) 109 FCR 405 (where the terms on which the parties reached agreement as to the facts meant that no conclusive or final decision could be made on the basis of those facts); and Kockums AB v Commonwealth [2002] FCAFC 138 (where the questions in effect sought advisory opinions as to future events).

4                     This is by no means to say that an order pursuant to O 29 r 2 should never be made, nor that such an order cannot assist in achieving the expeditious and inexpensive resolution of litigation.  There are circumstances, for example, in which the answers to separate questions will quell a legal controversy between the parties and the use of the procedure provided by O 29 r 2 is likely to contribute to a significant saving of time and cost: Reading Australia Pty Ltd v Australian Mutual Providence Society [1999] FCA 718, at [8], per Branson J.  But an application for the determination of separate questions should be treated with some caution.

the motion

5                     In the present case, the first to ninth respondents (‘the respondents’) have moved the Court pursuant to O 29 r 2 for an order that certain questions be heard separately from any further trial in the proceedings.  The questions have been identified as follows:

 ‘1.       Assuming the facts as alleged in the Second Further Amended Statement of Claim are established does the [respondents’] Defence… based on the construction and operation of s 45 of the Trade Practices Act 1974 [(Cth)] (being the matter pleaded in para 18 of the [Defence]) raise a valid and complete defence to the whole or any part of the Second Further Amended Statement of Claim?

2.         Assuming the facts as alleged in the Second Further Amended Statement of Claim are established does the… Defence… based on the Constitution (being the matter pleaded in para 20 of the [Defence]) raise a valid and complete defence to the whole or any part of the Second Further Amended Statement of Claim?’

6                     The applicant acknowledges that the hearing of the proceedings is likely to involve substantial pre-trial preparation and a lengthy trial.  Nonetheless it opposes the orders sought by the respondents, essentially on the ground that the evidence in the proceedings is likely to reveal further facts relevant to the respondents’ defences.  Accordingly, so the applicant submits, the attempt to formulate separate questions is inappropriate and not likely to be fruitful.

the pleadings

7                     In order to understand the respective positions of the parties, some background is necessary. 

8                     The applicant was formerly the head lessee of Homebush Shopping Centre and is now the owner.  In these proceedings, the relief it seeks includes an order restraining five of the respondents from instituting or pursuing certain proceedings in the Land and Environment Court of New South Wales (‘LEC’) and declarations that the respondents have made or given effect to arrangements in contravention of s 45(2)(a)(ii) and s 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) (‘TP Act’). 

9                     Section 45(2)(a)(ii) of the TP Act provides, among other things, that a corporation shall not make an arrangement if a provision of the proposed arrangement has the purpose, or would have or be likely to have the effect, of substantially lessening competition.  Section 45(2)(b)(ii) prohibits a corporation from giving effect to a provision of an arrangement, if that provision has the purpose, or has or is likely to have the effect of substantially lessening competition.

10                  In the Second Further Amended Statement of Claim (the ‘Statement of Claim’) the applicant pleads that five of the respondents commenced, or were joined as applicants in, proceedings in the LEC.  It is said that in those proceedings orders were sought preventing several parties, including the present applicant, from carrying on certain activities at the Homebush Shopping Centre (pars 37-38), but that the proceedings were summarily dismissed in December 2004 (par 40).

11                  The applicant pleads that its parent company (‘Austexx’) proposes to operate ‘outlet centres’ at specified retail outlets in different parts of Australia.  It is alleged that one such proposal relates to the Liverpool Shopping Centre (par 42).  It is said that in 2003, Liverpool Council advertised an amendment to the then current Liverpool Local Environment Plan (‘LEP’) in order to enable Austexx to open an outlet centre (par 43).  The applicant alleges that several entities associated with one or another of the respondents made separate submissions ‘objecting to the proposed [‘or draft]’ amendment’ to the LEP (pars 44-47).  The particulars identify specific letters sent by these entities to Liverpool Council, but the text of the letters is not set out in the pleadings.

12                  The Statement of Claim also pleads that Austexx proposes to establish an outlet centre at a retail development located at Brisbane Airport (par 48).  The applicant alleges that two of the respondents (or companies associated with them) commenced proceedings in this Court seeking to prevent Austexx from opening the outlet centre (pars 49-50).  It is said that these proceedings were dismissed in February 2005 (par 52).

13                  The applicant further alleges that Austexx proposes to operate an outlet centre at Essendon Airport in Victoria (par 53) and that the Essendon Airport Master Plan, which provides for retail development at the Airport, was approved by the relevant Commonwealth Minister in March 2003 (par 54).  The applicant pleads that several entities associated with one or other of the respondents ‘objected to the Master Plan’ approved by the Minister (pars 55-56).  The particulars identify letters sent by those entities to Essendon Airport Pty Ltd, but again do not set out the contents of those letters. 

14                  The applicant then pleads that the ninth respondent applied to the Administrative Appeals Tribunal (‘AAT’) for review of the decision of the Minister to approve the Master Plan and that entities associated with other respondents effectively joined that application (pars 57-60).  The ninth respondent, (‘QIC’) is said to have objected to the approval of the draft Major Development Plan released for public comment pursuant to the Master Plan (pars 61-63).  QIC is also said to have applied to the AAT for review of the Minister’s decision to approve the Major Development Plan (pars 64-65).

15                  Under the heading ‘The Section 45 Claim’, the Statement of Claim pleads that before commencing the LEC proceedings, the respondents made an arrangement which included provisions to oppose the development and operation of outlet centres on industrial zoned or airport land (par 66).  It is alleged that by reason of the matters pleaded in pars 37 to 65 each of the respondents gave effect to the arrangement by, inter alia, challenging the operation of the Homebush Shopping Centre and preventing or hindering the approval and development of the other three shopping centres (Liverpool, Brisbane and Essendon) (par 67).  The purpose of each of the provisions of the arrangement is said to be to substantially lessen competition in certain retail tenancy or retail centre services markets (par 69).  In consequence, so the pleading runs, each of the respondents made an arrangement in contravention of s 45(2)(a)(ii) of the TP Act and gave effect to an arrangement in contravention of s 45(2)(b)(ii), thus causing damage to the applicant (pars 70-71).

16                  Separate defences have been filed by the first to eighth respondents and by the ninth respondent.  As they are in very similar terms, I refer only to the defence filed by the first to eighth respondents.

17                  The defence denies or does not admit pars 66 to 71 of the Statement of Claim.  However, the defence admits in whole or in part many (although not all) of the allegations in pars 37 to 65 of the Statement of Claim.  For example, the defence admits that a company associated with the seventh and eighth respondents (‘Stockland’) made a submission objecting to the proposed amendment to the Liverpool LEP.  The defence also admits that a company associated with the second and third respondents (‘Westfield’) objected to the proposed amendment, but does not admit that the objection was in ‘substantively the same terms’ as Stockland’s objection.  Similarly, the defence admits that Westfield and another company associated with the fifth respondent objected to the Essendon Master Plan, but does not admit that Westfield did so on the ground that the proposed development would severely affect the financial viability of its own nearby development.

18                  The defence pleads affirmative defences to the applicant’s claim that the respondents have contravened s 45(2) of the TP Act, as follows:

‘18.      In answer to the whole of the… Statement of Claim, the… Respondents say that the conduct referred to in paragraphs 37 to 69 of the… Statement of Claim does not, as a matter of law, give rise to a contravention of either s 45 (2)(a)(ii) or s 45(2)(b)(ii) of the [TP Act].

                                    Particulars

Sections 45(2)(a)(ii) and 45(2)(b)(ii) do not render unlawful efforts to persuade any of the branches of government (including courts and tribunals) on the interpretation, formulation and application of planning laws where the conducts consists of:

(i)                 commencing legal proceedings (paragraphs 37, 49 and 57);

(ii)               making submissions in relation to proposed planning instruments (paragraphs 44, 45, 46 and 47); and

(iii)             objecting to planning instruments (paragraphs 55 and 56).

19.       The… Respondents further say that the conduct of seeking to persuade any of the branches of government (including courts and tribunals) on the interpretation, formulation and application of planning laws does not and could not have the effect, or likely effect, of substantially lessening preventing or hindering competition in a market in that if (which is denied) a substantial lessening, preventing or hindering of competition in a market has or does occur, then it will have been the effect of an independent determination by the relevant government officer, authority, tribunal and/or court.

Constitutional Defence

20.       Further, and in the alternative to paragraph 18, the… Respondents say that, if s 45 of the [TP Act] has the construction and operation alleged in paragraph 70 of the… Statement of Claim, then, as a matter of law:

(a)               Freedom of communication about government or political matters and the right of access to courts and tribunals are each essential aspects of the system of government for which the Constitution provides;

(b)               S 45 of the [TP Act] effectively burdens freedom of communication about government or political matters and the right of access to courts and tribunals in its terms, operation and effect;

(c)                S 45 of the [TP Act] also has the effect of preventing or controlling communication upon political and governmental matters and the right of access to courts and tribunals in a manner which is inconsistent with the system of government for which the Constitution provides;

(d)               S 45 of the [TP Act] must be read down so as not to prohibit any of the conduct referred to in paragraphs 37 to 69 of the … Statement of Claim, in order to conform to the requirements of the Constitution;

(e)                In the alternative to clause (d) above, s 45 of the [TP Act] is invalid because of its failure to conform to the requirements of the Constitution.’

submissions

19                  The respondents contended that the procedure provided by FCR, O 29 r 2(a) is appropriate if answering the separate questions is likely to make a substantive hearing unnecessary (assuming the questions are answered in a particular way) and if the questions simply raise an issue of law.  Mr Jackman SC, who appeared with Mr Hewitt for the respondents, recognised that the joint judgment of the High Court in Bass v Permanent Trustee has made it clear that a court should not make declarations on purely hypothetical facts, as distinct from facts found or agreed between the parties.  Mr Jackman pointed out, however, that the joint judgment acknowledged that the procedure followed in Bass v Permanent Trustee itself was ‘far removed’ from that concerned with demurrers.

20                  Mr Jackman submitted that the proposed separate questions raised issues of law only and would be appropriate for determination in the High Court by way of demurrer.  He accepted that the procedure for separate questions, if followed in the present case, would not necessarily result in all facts possibly relevant to a final hearing being presented to the Court.  In particular, he did not dispute that the precise terms of the documents referred to in the Statement of Claim might not be tendered at the hearing to determine the separate questions.  He maintained, however, that this was immaterial because on the reading of the Statement of Claim most favourable to the applicant, its case was bound to fail.  By way of example, he submitted that the contents of any letters sent by the respondents to Liverpool Council were irrelevant, since the respondents’ argument was that the mere act of objecting to a proposed amendment to a local planning instrument was protected by the implied freedom of communication on government matters.

21                  Mr Jackman acknowledged that if the Court took the view that the valid application of s 45(2) of the TP Act to the respondents’ conduct depended upon the precise content of the communications made to the local authorities, or to the other bodies referred to in the Statement of Claim, the separate questions would have to be answered ‘Inappropriate to answer’.  Nevertheless he submitted that it was appropriate for the Court to make the orders sought, since this would enable the respondents to put their argument on the point of law.  If it succeeded, the case in its entirety would be resolved.  If it failed, the case would proceed to a hearing in the usual way.

22                  Although the applicant accepted that the proceedings are likely to involve a lengthy hearing, it opposed the orders sought by the respondents.  It did so on the grounds that:

·        particular findings of fact are necessary and will bear upon the defences raised by pars 18 and 20 of the defence; and

·        the application is a ‘strike-out application in another guise’ by which the applicant is seeking to avoid the ‘unarguability’ test which applies to strike-out applications.

23                  Mr Bannon SC, who appeared with Mr Lancaster for the applicant, submitted that par 20 of the defence conflates distinct concepts, such as freedom of communication about government matters, freedom of communication about political matters and rights of access to the courts.  He contended that if these concepts are to be applied, the Court will need to address factual issues such as whether particular conduct constitutes trade or commerce as opposed to political activity and whether particular statements or submissions constitute communications about government or political matters for the purposes of constitutional doctrine. 

24                  Mr Bannon argued that the Court could not endorse or provide an advisory opinion, to the effect that objecting to planning instruments, or commencing legal proceedings to restrain development, could not contravene s 45(2) of the TP Act.  Once the Court resists an invitation to provide an advisory interpretation of s 45(2) of the TP Act, the question whether the conduct alleged against the respondents comes within s 45(2) must be determined on the basis of specific findings of fact.  In particular, so he contended, it would be important to ascertain not only what was said on behalf of or by the respondents, but the context in which any statements were made.  These matters would influence the Court’s characterisation of any arrangement entered into by the parties and the application of the constitutional principles on which the respondents rely.

REASONING

25                  FCR, O 20 r 3, provides that no proceeding by way of demurrer shall be brought in any proceeding.  However, O 20 r 3 allows a party challenging the adequacy of the whole or part of any pleading to apply, inter alia, under O 20 r 2(1)(a) for an order dismissing the proceedings or under O 11 r 16 for an order striking out the pleading, as disclosing no reasonable cause of action. 

26                  FCR, O 11 r 9, allows a party by its pleading to raise any point of law.  This rule permits a pleading to identify a point of law in lieu of a demurrer: Butterworths Federal Court Practice, at [39,845.1]. It is not in doubt that a order for the determination of separate questions may be an appropriate means of enabling the Court to decide a discrete issue of law that may resolve the dispute between the parties. 

27                  The High Court retains the demurrer: High Court Rules 2004, r 27.07.  This rule permits a party to demur to a pleading of the opposite party or to so much of that pleading as sets up a distinct cause of action: r 27.07.1.  The demurrer must state the ground or grounds in law for the demurrer: r 27.07.3.  If the claim or defence of a party depends, or may depend, upon the construction of a document referred to in the pleading, the demurring party may set out in its demurrer the part or parts of the document it alleges are material: r 27.07.5

28                  A demurrer denies the legal sufficiency of the facts alleged in the pleading that are said to entitle the plaintiff or applicant to a legal remedy or to establish a defence to a pleaded cause of action: cf South Australia v Commonwealth (1962) 108 CLR 130, at 141-142 per Dixon CJ.  A demurrer admits for the purpose of its disposition all allegations of fact made in the statement of claim or other opposing pleading: Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117, at 125, per Barwick CJ.  A defendant or respondent who demurs to a statement of claim admits, for the purposes of the demurrer, the facts pleaded by the plaintiff, but alleges that those facts do not reveal a cause of action against him or her: Kathleen Investments, at 135, per Gibbs J.  The only facts which are taken to be admitted for this purpose are those which are expressly or impliedly averred in the pleading itself and the Court cannot take as admitted a fact which is not averred but is merely an inference from facts which are averred in the pleading: Kathleen Investments, at 135.  As Gibbs J observed in Kathleen Investments (at 135):

‘[t]he virtue of proceeding by demurrer is that in an appropriate case it enables a quick decision to be given on a question of law when that will dispose of the whole action.  Sometimes however, particularly when the pleadings are defective, the demurrer will not lead to any final decision but … will result “only in delay of the proceedings and increase of costs”.’

29                  The demurrer procedure has frequently been utilised to crystallise and present for decision the validity of legislation impugned on constitutional grounds: see for example, Hughes and Vale Pty Ltd v New South Wales (1952) 87 CLR 49, where the plaintiff demurred to a defence which invoked New South Wales legislation, on the ground that the relevant legislation contravened s 92 of the Constitution and was beyond the powers of the Parliament of New South Wales.

30                  The demurrer procedure was used relatively recently in Levy v Victoria (1997) 189 CLR 579, as the mechanism for presenting for decision the question whether regulations made under Victorian legislation were invalid as infringing the implied constitutional freedom of communication.  In that case, the plaintiff had been charged with entering a permitted hunting area during prohibited times contrary to the Victorian regulations.  He instituted proceedings in the High Court against the State of Victoria, seeking declarations that the regulations were invalid and that the charges against him were accordingly unlawful. 

31                  The plaintiff’s statement of claim pleaded in detail the purposes he had in entering the proclaimed area, including his intention to protest against the hunting laws.  He alleged that the regulations were beyond the powers of the Victorian Parliament by reason of the implied constitutional freedom of communication, which rendered invalid any law unreasonably preventing him from pursuing his right to speak publicly or to protest about State laws.  The State demurred to the statement of claim.

32                  Only two members of the court specifically commented on the procedure that had been used to raise the constitutional issue.  Brennan CJ observed at (598-599) that:

[a]lthough it is possible that the validity of a law with respect to a subject within legislative power could depend upon some factual matter touching the freedom of discussion of government or politics, questions of fact seldom have to be resolved.  Only in rare instances would it be impossible to determine the validity of such a law on demurrer.  In such a case, the constitutional facts could first be ascertained by the stating of a case, by resort to information publicly available or, possibly, by the tendering of evidence.  But constitutional facts are not to be regarded for the purposes of a demurrer as though they are facts in issue in civil litigation between parties.  In the latter case, the facts expressly or impliedly alleged in the pleading demurred to must be taken as established for the purposes of the demurrer.  But facts which are relevant to the existence of, or restriction on, power to enact an impugned law stand in a different category’. (Footnotes omitted)

33                  Kirby J noted (at 648) that the plaintiff had submitted that the demurrer was an inappropriate procedure, arguing that in a case involving an evaluative exercise of judgment as to whether the impugned law infringed the constitutionally protected freedom, evidence would need to be considered.  Such evidence was said to be relevant, for example, to judging the appropriateness of the law or the proportionality of the inhibition on freedom of expression.  His Honour said this (at 649):

‘The jurisprudence on demurrers is covered with cobwebs.  After the narrative form of pleading was adopted by Australian courts following the abolition of common law pleading it has been a subject but rarely considered by the courts.  In South Australia v The Commonwealth [at 142], Dixon CJ explained, in relation to a demurrer in this Court, that it presented certain difficulties because of the adoption by the Court of the narrative and not the common law system of pleading…

[I]n the manner in which these proceedings have been conducted, the statement of claim pleaded and the demurrer successively amended, I believe that the Court should respond to the substance of the issue tendered.  In determining constitutional challenges the procedure of demurrer has been found useful to this Court since its earliest days.  It is now too late to revive the rigidities of demurrer practice at common law.’ (Footnotes omitted.)

34                  Within this framework, the remarks made in the joint judgment of six members of the Court in Bass v Permanent Trustee are relevant. Their Honours pointed out (at [45]) that a central purpose of a judicial determination is to make a conclusive or final decision ‘based on a concrete and established or agreed situation which aims to quell a controversy’.  It is for this reason that courts decline to provide answers to hypothetical questions or to give advisory opinions.  Such answers or opinions are not based on concrete situations and do not amount to a binding decision raising a res judicata between the parties (at [48]).

35                  After noting that the answers given and the declarations made by the Full Court in Bass v Permanent Trustee had been ‘purely hypothetical’, their Honours said (at [50)]):

‘The procedure adopted in the present case is far removed from that concerned with demurrers, a form of procedure which assumes the truth of a particular set of facts.  If the “facts” which are the basis of an answer to a legal question are identified, that answer will have utility for the parties provided that no other evidence could add to or qualify those “facts”.  In such a case, the parties’ rights will be determined when the evidence finally determines the existence or non-existence of those “facts”.  Because that is so, demurrers have been much used in determining the rights of parties to litigation.  The demurrer proceeds upon identified facts and enables a court to declare whether or not they provide a cause of action or a defence or reply to another party’s pleading.  Unlike the present case, however, a demurrer assumes that the pleadings exhaust the universe of relevant factual material.  The utility of demurrers is, however, heavily dependent on the pleadings containing all the relevant facts.  When the parties are uncertain whether further investigation will reveal further factual material, the utility of the demurrer is diminished’.

36                  Their Honours observed that preliminary questions may be questions of law, questions of mixed law and fact or question of fact.  They identified particular problems that can arise where the preliminary question is one of mixed fact and law.  They noted (at [52]), however, that:

‘[some] questions of law can be decided without reference to the facts.  Others may proceed by reference to assumed facts, as on demurrer or some other challenge to the pleadings.  In those cases, the judicial process is brought to bear to give a final answer on the question of law involved.  Findings of fact are made later, if that is necessary’.

37                  The present case does not involve a demurrer, since that procedure is not available in this Court.  The respondents seek, in effect, to achieve the same result as a demurrer by means of orders for the determination of separate questions pursuant to FCR O 29 r 2.  It is important to bear in mind, however, that what I have to assess is whether I should make the orders sought, not whether the respondents could have demurred to the applicants’ statement of claim had the proceedings been commenced in or removed to the High Court.  Nonetheless, the practice relating to demurrers in the High Court provides some assistance by way of analogy in determining whether the proposed separate questions should be addressed. 

38                  In my view, the most important issue is whether the separate questions formulated by the respondents can be answered by reference to an assumed set of facts (derived from the applicant’s pleadings) and whether these will constitute the relevant universe of facts for the purposes of deciding a question of law.  If so, and if the answers to the separate questions might resolve the dispute between the parties thereby potentially saving considerable time and costs, it is likely to be appropriate to make the orders sought.

39                  The respondents wish to argue at the hearing of the separate questions that the facts pleaded by the applicant are incapable of establishing conduct that gives rise to a contravention of s 45(2) of the TP Act.  They say, as I follow their argument, that making an objection to a proposed planning law or commencing proceedings in a court or tribunal to restrain unlawful conduct, cannot, as a matter of law, constitute a contravention of s 45(2) of the TP Act.  They are prepared to put this argument on the basis that if the Court decides, contrary to their contentions, that the separate questions cannot be answered without reference to additional facts the Court will be unable to give the answers for which they contend.  Thus if the questions cannot be answered without further evidence being adduced, such as the precise terms of the letters referred to in the Statement of Claim or the circumstances surrounding the making of the objections, the respondents will not obtain the answers they seek and the case will proceed in the usual way.

40                  It might be thought that the respondents have taken on themselves a heavy burden that may be difficult to discharge.  Be that as it may, I think that if the separate questions are approached in the manner that has been explained the orders sought by the respondents:

·        will enable an issue of law to be decided on the basis of facts pleaded by the applicant;

·        no other facts will be required to determine whether the questions should be answered in the manner suggested by the respondents;

·        if the respondents’ foreshadowed contentions are correct, answering the questions is likely to produce a very considerable saving of time and cost in the proceedings, even allowing for the possibility of an interlocutory appeal;

·        if the questions are not answered as the respondents suggest, the parties will not have been put to disproportionate expense, having regard to the complexity of the factual and legal issues that will need to be resolved at a final hearing.

41                  I should add two observations.  First, I think that the separate questions, instead of referring to ‘any part of’ the Statement of Claim should refer to ‘any cause of action pleaded in’ the Statement of Claim.  This amendment will overcome a possible ambiguity in the questions framed by the respondents. 

42                  Secondly, I do not think that making the orders sought by the respondents will give them an unfair forensic advantage.  It is no doubt open to them to apply to strike out the applicant’s statement of claim.  But that is not the only way in which an issue of law can be presented for determination by the Court.  Moreover, the argument the respondents intend to put on the hearing of the separate questions ensures that if additional facts are required to answer those questions, the respondents will not obtain the answers they seek.

43                  Subject to the amendment to the questions referred in [41] above, I propose to seek the orders sought by the respondents.  The costs of the motion should be costs in the cause.

Associate:

Dated:              22 July 2005