Declarations? Keep the Utility in Mind

Declaratory relief is not granted just for the asking. The learned authors of ‘On Equity’ say that:¹

“It is clear that before there can be a declaratory action, there must be a controversy of a justiciable nature.”

The utility of seeking declaratory relief needs to be kept squarely in mind.

In Manthey Redmond (Aust) Pty Ltd (in liq) & Ors v Manthey & Ors, Jackson J said:²

[34] By s 10(2) of the Civil Proceedings Act 2011 (Qld):

“The court may hear an application for a declaratory order only and may make a declaratory order without granting any relief as a result of making the order.”

[35] Section 19(2) is the modern manifestation of the reforms begun in the 19th century³ to make clear the power of the court to grant purely declaratory relief. Nevertheless, discretionary principles inform the exercise of the power, including that a court will decline to grant a declaration which lacks utility or has insufficient practical purpose.⁴

[36] Where no substantive relief will follow from the grant of a declaration, and the declaration will be inutile to resolve or quell any other controversy between the parties, the court may not grant the declaratory relief sought, as a matter of discretion. The difficulty in the present case is to identify what “real interest”⁵ the plaintiff has in the relief sought.

[37] Perhaps the leading statement of principle on this point is contained in the plurality reasons in Ainsworth v Criminal Justice Commission⁶, as follows:

“It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which ‘it is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise’. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have a ‘real interest’ and relief will not be granted if the question is ‘purely hypothetical’, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the court’s declaration will produce no foreseeable consequences for the parties’”.⁷

[38] Another useful discussion appears in Commonwealth v BIS Cleanaway Ltd⁸ where Hodgson J said:

“There would in my opinion be no practical consequences of the making of declarations of the kind sought, except such consequences as they may have in relation to a breach, claim or expense of the kind I have mentioned. And even if the claimant were to allege any such breach, claim or expense, this would almost certainly raise specific question as to the interpretation of the licence, as to what, if there had been a novation, or were the precise terms and effect of the novation (for example in relation to activities which had been undertaken prior to the novation) and what (if there had been termination of the licence or some other event effecting its operation as from any particular time) was the effect of the termination, of that affectation, as to any application the licence had into the future from that time. Issues such as these would be issues that would be best dealt with together with determination of issues raised in connection with the orders actually sought in the proceedings, rather than separately from them in a piecemeal way.

The determination of the issues such as these, separately from determination of issues relating to the declarations sought, will be very likely to raise serious problems of a kind that can be raised when separate determinations of interrelated questions are sought. It is for those reasons particularly, in addition to the theoretical and very general and unspecific nature of the declarations, that I consider that it could not be an appropriate exercise of discretion in this case to grant the declarations sought.”

[39] Questions of these kinds arise about some of the paragraphs of the relief sought by the plaintiffs by counterclaim.

This extract was recently referred to by Ryan J in Cameron v Cameron & others.⁹

1 By Young, Croft and Smith, 2009, at [16.770], page 1077.

2 [2017] QSC 145 at [34] – [39].

3 In particular for present purposes the Chancery Procedure Act of 1852 (UK), s 50 and the provisions which adopted it, such as the Equity Act 1867 (Qld), s 73, which was relocated to the Supreme Court Act 1995 (Qld), s 128.

4 See Dharmananda and Papamatheos, Perspectives on Declaratory Relief, Sydney, The Federation Press, 2011, pp 48-49, 69-70, 142, 145, 149, 159; Zamir and Woolf, The Declaratory Judgment, 4 ed, London, Sweet & Maxwell, 2011, pp 168-174 [4-99]-[4-109]; and Young, Declaratory Orders, 2 ed, Sydney, Butterworths, 1975, pp 60-61, [703]-[704].

5 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 438.

6 (1992) 175 CLR 564.

7 (1992) 175 CLR 564, 581-582.

8 [2008] NSWCA 170, [8]-[10].

9 [2023] QSC 61 (24 March 2023) at [155].