Case: Bass v Permanent Trustee [1999] HCA 9 ; (1999) 198 CLR 334
Outcome: referred to
Moore J did not agree with the majority on the question of futility of enforcement. His Honour was of the opinion that both long-standing common law authorities and recent High Court dicta support the proposition that relief should not be granted unless it would be effectual (or unless it there are reasonable grounds to believe an injunction will be effacious in the future). In support of this proposition, Moore J cited the following authorities: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [31] per Gleeson CJ and McHugh J: The term "matter" has meaning only in the context of a legal proceeding, as the passages from South Australia v Victoria , Re Judiciary and Navigation Acts, Stack v Coast Securities (No 9) Pty Ltd and Attorney-General (NSW) v Commonwealth Savings Bank demonstrate. A "matter" cannot exist in the abstract. If there is no legal remedy for a "wrong", there can be no "matter". A legally enforceable remedy is as essential to the existence of a "matter" as the right, duty or liability which gives rise to the remedy. Without the right to bring a curial proceeding, there can be no "matter". If a person breaches a legal duty which is unenforceable in a court of justice, there can be no "matter". Such duties are not unknown to the law. For example, in Australian Broadcasting Corp v Redmore Pty Ltd , this court had to consider the effect on a contract of a statutory provision which prohibited the making of the contract without the approval of a minister. The prohibition arose in a context where s 8(1) of the relevant Act imposed a duty on the board of the appellant to ensure that it did not contravene any provision of the Act but s 8(3) provided that "[n]othing in this section shall be taken to impose on the Board a duty that is enforceable by proceedings in a court". Although the point did not arise for decision, it is plain that breach of the prohibition was incapable of giving rise to a "matter". (footnotes omitted) Truth About Motorways v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11 ; (2000) 200 CLR 591 at [49] per Gaudron J: Absent the availability of relief related to the wrong which the plaintiff alleges, no immediate right, duty or liability is established by the court's determination. Similarly, if there is no available remedy, there is no administration of the relevant law. Thus, as Gleeson CJ and McHugh J pointed out in Abebe v Commonwealth , "[i]f there is no legal remedy for a `wrong', there can be no `matter' ". Bass v Permanent Trustee [1999] HCA 9 ; (1999) 198 CLR 334 at [47] : Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude. In Re F (Mental Patient: Sterilisation ), Lord Goff of Chieveley said that: a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, for example, in default of defence or on admissions or by consent. By "not a real question", his Lordship was identifying what he called the "hypothetical or academic". The jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense. Barwick CJ pointed this out in Commonwealth v Sterling Nicholas Duty Free Pty Ltd. However, that is not the present case. (footnotes omitted)