Competition Law Reading Room
Declarations - Homer Simpson's remedy - Is there anything they cannot do?
Justice Robert French
University of Western Australia - Faculty of Law - 30 November 2007
Perspectives on Declaratory Relief
Justice French discusses declaratory relief generally. It includes discussion of the nature of declaratory relief under Part IIIA of the TPA and for purposes of s 50 of the TPA - in this respect his Honour refers to his own declaratory decision in the AGL case. He notes:
[para 26] 'A claim for declaratory relief may be faced with a preliminary objection to jurisdiction on the basis that what is sought is merely an opinion and that there is no justiciable controversy. In a relatively recent example in federal jurisdiction a declaration was sought that the proposed acquisition by a corporation of interests in another corporation would not contravene s 50 of the Trade Practices Act. The declaration was sought against a background of threatened divestiture action by the Australian Competition and Consumer Commission (ACCC) if the acquisition proceeded. On an objection to jurisdiction heard and determined as a preliminary question, it was held that the court was apprised of a real controversy with real consequences depending upon its resolution. On the other hand an inquirer who wished to proceed with an acquisition and, without communication with or threat from the ACCC or any third party came to court to seek a declaration would face with considerable difficulty. On the face of it there would be no “matter” to determine. Moreover it would be difficult to see how the regulator or any other party could be conscripted as a contradictor absent any prior position adopted or threat made by that party.'
His Honour also discusses the power of the Federal Court to make declarations under s 163A of the TPA. In this respect his Honour notes, at para 42:
'It is a particular feature of s 163A that any person may seek a declaration or order under it. Its constitutional validity was challenged but upheld in the High Court in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1999) 200 CLR 591. The Court held that the law making power of the Commonwealth Parliament extended to allow a person not injured or affected by a breach of its laws to institute proceedings in respect of the breach. There was no requirement that a person must owe a duty to the person who institutes such proceedings for there to be a “matter” within Ch 3. Both s 80, which provides for injunctive relief, and s 163A which provides for declaratory relief were valid in so far as they purported to confer standing on the applicant.'
His Honour concludes that the declaratory remedy 'is now an indispensable tool in the administraiton of justice in both public and private law'
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