Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: cited
Court's discretion under s 21 of the FCA "is confined by the considerations which mark out the boundaries of judicial power ": Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582. Accordingly, this Court's original jurisdiction to grant the relief sought by ASIC is found in either s 1337B of the Act or s 39B of the Judiciary Act 1903 (Cth). The question is whether this proceeding involves a "matter" within the meaning of those provisions. Owston accepts that declaratory relief is often given on the motion of a regulator, but it says that usually a declaration is only granted in conjunction with substantive relief which is in its nature either protective such as by the grant of injunctive relief or corrective advertising orders or alternatively a punishment by awarding, for example, civil penalties. It contends that a bare declaration will be made only in rare circumstances, absent other relief that gives effect to a right or obligation. It cites Gaudron J in Truth About Motorways Pty Limited v Macquarie Infrastructure Management Limited [2000] HCA 11 ; (2000) 200 CLR 591 at [52] : There may be cases where a bare declaration that some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention. Ainsworth v Criminal Justice Commission (109) was such a case. But a declaration cannot be made if it "will produce no foreseeable consequences for the parties". (110) That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution . And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth. (See Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582, per Mason CJ, Dawson, Toohey and Gaudron JJ). Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 was cited by Owston in support of the proposition that the Court may not be "forced to consider a hypothetical situation where its decision will produce no foreseeable consequences for the parties". Jododex is not authority for such a proposition. Rather, this formulation reflects the language of the joint judgment in Ainsworth at p 582 adopting what had been said in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1 at 10 as to a hypothetical question and in Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188, as to "foreseeable consequences". It is also the formulation adopted by Gaudron J in Truth About Motorways at [52]. Gibbs J at 435 in Jododex said that the jurisdiction to make a declaration is a very wide one. Jododex is, as was also approved by the majority judgment in Ainsworth, authority, at 437, that the power of superior courts to grant declaratory relief is discretionary which "it is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise". The jurisdiction to grant declaratory relief is wide. In JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 at 435-436 there is a useful collection of relevant authority to that effect. King CJ, with whom Prior and Perry JJ agreed observed: Authoritative judicial statements make it clear that the jurisdiction to grant declaratory relief is very wide and that judicial pronouncements appearing to restrict the circumstances in which such relief will be granted relate to the sound exercise of the discretion rather than to jurisdiction; Ibeneweka v Egbuna [1964] 1 WLR 219 at 225; Forster v Jododex Australia Pty Ltd esp per Gibbs J at 438; Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192 per Mason JA at 201. It is not necessary that the plaintiff have a cause of action against the defendant: Guaranty Trust Company of New York v Hannay and Co [1915] 2 KB 536. A statement by Lord Sterndale MR in Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at 507, quoted by Gibbs J in Forster v Jododex at 435, appeared to confine the otherwise unlimited character of the jurisdiction to cases involving "a question of defining the rights of two parties". As was pointed out, however, by Street CJ in Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 51, that statement was made "at a time when the declaratory jurisdiction had not achieved the full development manifested in the last 20 or 30 years." By 1970 the Privy Council could say in Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136 at 1158 that to exclude the jurisdiction it must appear "that the questions were purely abstract questions the answers to which were incapable of affecting any existing or future legal rights of the plaintiffs" [emphasis mine]. In Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation (above), Street CJ (at 53) repudiated the notion of jurisdictional cut-off points in relation to declaratory relief. Moffitt P said (at 57): The proper conclusion to be drawn concerning the power to make a declaration is that the jurisdiction (in the strict sense) to grant declaratory relief in a properly constituted action is very wide, so that no particular limitation can be pointed to ... I can find no warrant for the imposition by the courts of a self-denying restriction on their jurisdiction to grant declaratory relief. In my opinion there is no jurisdictional limit. The court's power to grant such relief is "only limited by its own discretion" ( Hanson v Radcliffe at 507), and the boundaries of judicial power: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-582.