Case: Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) 15 NSWLR 596
Outcome: referred to
Young J in Re McDougall: Australian Securities &amp; Investments Commission v McDougall (2006) 57 ACSR 175 at [55] observed, the courts, since Australian Softwood Forest Pty Ltd v Attorney-General (NSW) [1981] HCA 49 ; (1981) 148 CLR 121 have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) 15 NSWLR 596 at 603; 14 ACLR 644 at 647; Australian Securities &amp; Investments Commission v Sweeney [2001] NSWSC 114 at [30] - [31] ; Australian Securities &amp; Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561-574. Austin J in Australian Securities &amp; Investments Commission v Sweeney (2001) NSWSC 114 at 30-31 said: It is beyond contest that this Court has plenary jurisdiction to make a declaratory order concerning contravention of the Corporations Law, by virtue of ss 23 and 75 of the Supreme Court Act 1970 (NSW). In Australian Softwood Forests Pty Ltd v Attorney-General (NSW) [1981] HCA 49 ; (1981) 148 CLR 121 , the High Court expressly disagreed with the Court of Appeal of New South Wales, which had declined to grant a declaration with respect to contravention of the 'prescribed interests' provisions of the Companies Act 1961 (NSW). Gibbs CJ remarked that it was proper to grant a declaration in that case although it had been agreed that an injunction was not an appropriate remedy (at 125). In Corporate Affairs Commission v Transphere Pty Ltd (1989) 7 ACLC 205 , 209, Young J dealt with the question more fully. He observed that, while a declaration will not ordinarily be made that a defendant has committed a crime, there is jurisdiction to do so in a proper case. In his Honour's view, older cases which discouraged a statutory authority from commencing proceedings for declaratory relief are no longer applicable, in view of the changed social climate, and the Court will now grant declaratory relief at the suit of the statutory authority which exists to regulate an industry, in an appropriate case: at 214. In his Honour's view, the fact that the subject matter of the declaration is of public interest is an important consideration in favour of the granting of declaratory relief, even though the order may be of only slight utility: at 213. In that case the Court declined to make a declaratory order, because (inter alia) the declaration would affect investors who were not parties to the proceedings. That consideration is not present here. The approach taken in the Federal Court is very similar: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1993] FCA 83 ; (1993) 113 ALR 257. and at 34-35: The present proceedings have been brought by the public regulator to enforce the corporations and securities legislation. According to s 1(2) of the Australian Securities and Investments Commission Act 1989 (Cth), in performing its functions and exercising its powers, the plaintiff must strive to achieve various objectives, including: to promote the confident and informed participation of investors and consumers in the financial system; to administer the laws that confer functions and powers on it effectively and with a minimum of procedural requirements; and to take whatever action it can take, and is necessary, in order to enforce and give effect to the laws that confer functions and powers on it. These provisions imply that it is appropriate for the Commission to take civil proceedings for declaratory and injunctive relief in respect of past events, even if there is no risk of repetition, where the outcome may establish that the conduct complained of was wrongful (and thereby mark the Court's and the community's disapproval of it) and may deter other wrongdoers. It is appropriate for the Court to take these matters into account in the exercise of its discretion to grant or refuse such relief. Davies AJ in Australian Securities &amp; Investments Commission v Pegasus Leveraged Options Group Pty Ltd [2002] NSWSC 310 ; (2002) 41 ACSR 561 at [38] adopted what Austin J had said in Sweeney as well as by Young J in Corporate Affairs Commission v Transphere Pty Ltd (1989) 7 ACLC 205 at 209. In particular his Honour agreed with the views expressed by their Honours that when declarations are sought by a public authority such as ASIC then the declaration should be made if it is in the public interest to do so (at [39]).