Case: Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192
Outcome: considered
It is a common misconception that a declaration is an equitable remedy. It is not; it is a statutory remedy that is conferred in terms emphasising that its grant or refusal is within the discretion of the Court: see Tito v Waddell (No 2) [1977] Ch 106 at 259; Mayfair Trading Co Pty Ltd v Dreyer [1958] HCA 55 ; [1958] 101 CLR 428 at 454 per Dixon CJ; and Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4 th ed, Butterworths, 2002, at [19-159]. The discretion is to be exercised according to the facts and circumstances of the individual case, and the considerations that may be relevant to the exercise of the discretion are 'so numerous that it is not possible to enumerate them: see Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192 (' Salmar' ) at 203. 48 The Commonwealth relies upon Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 (' Forster' ) and Salmar for its contention that the Court might refuse declaratory relief where the issue is one which the Parliament has entrusted to a specialist body or tribunal, or a more convenient or satisfactory remedy otherwise exists. In Forster , the Court in fact granted declaratory relief, notwithstanding the existence of pending proceedings before the mining warden in which the same issue would arise for decision. The leading judgment was delivered by Gibbs J, with whom McTiernan, Stephen and Mason JJ relevantly agreed. Having held that nothing in the provisions of the Mining Act 1906 (NSW) excluded Jododex's right to apply to the Court for a determination of its legal rights (at 436-437), Gibbs J turned to the Court's discretion to make a declaration at 438-439: 'The question whether the Court should make a declaration which would have the effect of deciding a question in issue in pending proceedings may often be of some difficulty. It is of course important that the proceedings in the present case were not pending in an ordinary court. However, there were some obvious reasons why a judge should hesitate before intervening when the matter was about to come before the warden. It was, of course, possible that the warden would give effect to the contention that Jododex held a valid exploration license and would therefore refuse to grant any authority to enter to the appellant. The warden might have declined to grant the appellant's applications for some other reason. Moreover, if it were ultimately held that Jododex's contention ought to fail, the proceedings before the warden would have been delayed and the appellant would have been put to additional cost and inconvenience. On the other hand, to determine the existence of the right which Jododex sought to establish, it was necessary to ascertain the true meaning and effect of a statutory provision and of an instrument in statutory form. These were pure questions of construction such as would appropriately be decided in the Supreme Court. They were difficult questions, and apparently rights of considerable value depended on the answers to them. When all these conflicting considerations are weighed, it seems to me that it cannot be said that it was not a proper exercise of judicial discretion to proceed to make a declaration in all the circumstances of the case.' The fact that Jododex was seeking a declaration to forestall a possible contrary decision by the warden was not regarded as an objection to the grant of declaratory relief: per Gibbs J at 437. 50 In Salmar at 202-203, Mason JA said: 'In the context of this case it is, however, important to note that the courts have regarded the availability of another suitable remedy as a matter which is relevant to the exercise of the discretion. The significance and weight of this consideration becomes the greater if it appears that questions of the kind sought to be determined ordinarily fall within the jurisdiction of a court or tribunal having a special capacity or experience in dealing with questions of that kind. It is clearly undesirable that there should be a departure from the ordinary and established course of deciding matters in the absence of a discernible advantage to be derived from that departure. But it may nevertheless appear, as I think it does in this case, that the question for determination is one of general significance readily susceptible of decision by the Equity Court, and that there is advantage in having the question determined by that Court in preference to awaiting the outcome of a decision in accordance with the established procedure. In this case, so it seems to me, advantage or utility lies with the making of a declaration. The question is, as I have remarked, one of general significance of a kind which the Equity Court is frequently called upon to decide.' 51 In its submissions, AWB did not dispute the basic proposition that the existence of another suitable remedy is a matter which would be relevant to the exercise of the Court's discretion. However, AWB disputed that the procedures now available under s 6AA constituted another suitable remedy, and that the Commission can be regarded as, or equated with, a specialist tribunal of a kind described in Forster and Salmar . AWB also said that a judicial determination of the subsistence of legal professional privilege offered it discernible advantages which it is entitled to pursue.