Case: Platypus Leasing Inc v Commissioner of Taxation (No 2) (2005) 189 FLR 411
Outcome: followed
is one thing; whether or not it is appropriate to exercise it is another. There is no right to declaratory relief. In Platypus Leasing Inc v Commissioner of Taxation (No 2) (2005) 189 FLR 411 Gzell J of the New South Wales Supreme Court referred (at [81]) to the undesirability of the use of declaratory relief as a "staging post" in litigation. In refusing, as a matter of discretion, to grant declaratory relief in respect of a goods and services tax controversy not yet the subject of an assessment his Honour referred with approval to the following observation made by Young J in McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 312: The plaintiff's summons asks for a declaration that the yacht is the property of the plaintiff. I do not believe that such a declaration should be made. Declarations should not be made as a staging post in litigation, and in a case where some executive orders have to be made, it is usually best to proceed to consider those executive orders rather than making declarations. I share the diffidence of Young J and Gzell J in relation to the use of declaratory relief as a "staging post". On behalf of Santos and Delhi Petroleum it was submitted that the declarations sought by the Applicants in paragraphs 1 and 2 of the Amended Application were staging posts to the end of an assertion in the future of a right to negotiate. I agree that this is, in any event, the true way of conceiving the declarations sought. Therefore, even if for that reason alone, I should not be disposed, as a matter of discretion, to grant that relief. Outcome Given the conclusions which I have reached, the appropriate course to take in the circumstances is to dismiss the application. The alternative suggested, striking out of the amended statement of claim, is not appropriate. The only way to address the fundamental jurisdictional difficulty presently attending the application would be to plead a claim for native title. That would be pregnant with a potential for embarrassment derived from different findings given that the Applicants already claim a native title determination in respect of the claim land in other proceedings in the Court. Further, I have in any event concluded that it is not appropriate, as a matter of discretion, to grant the declaratory relief sought. For these reasons, I should not be disposed to allow any such amendment. I shall hear from the parties as to costs, including whether costs should merely follow the event or whether s 85A of the NTA operates so as to require each party to bear their own costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 18 December 2009 Counsel for the Applicant: Mr J McCarthy QC with Mr J Kildea Solicitor for the Applicant: Eddy Neumann Lawyers Counsel for the First and Third Respondents: Mr S Lloyd SC with Mr S Cooper Solicitor for the First and Third Respondents: Blake Dawson Counsel for the Second Respondent: Mr P Flannagan SC with Mr G Del Villar Counsel for the Second Respondent: Crown Law Date of Hearing: 23 June 2009 Date of Judgment: 18 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1532.html