Case: Glasgow Navigation Company v Iron Ore Company [1910] AC 293
Outcome: followed
Historically, courts have been disinclined to hear and determine matters where the issues in controversy no longer have real practical significance. In Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, Lord Loreburn LC stated that it was not the function of a Court of law to advise parties as to what would be their rights under a hypothetical state of facts (cf Sutch v Burns [1944] KB 406, King v Lewis [1949] NZLR 779, Sumner v William Henderson &amp; Sons [1963] 2 All ER 712, Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335, and Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368, City of Norwood, Payneham and St Peters v Baker [2004] SASC 135). A useful illustration of the principle is the decision of the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VR 394 where the respondent had obtained a judgment for the sum of [sterling]300 and costs against the Insurance Commissioner. The Insurance Commissioner appealed to set aside the judgment. The appeal involved the construction of a section of an exclusion clause in a policy of insurance. The court was informed however that the Insurance Commissioner had paid the judgment debt and costs to the respondent, and that the parties had agreed that the Insurance Commissioner would neither seek the return of those moneys nor a new trial should the appeal succeed. In refusing to proceed further with the appeal, the Full Court observed: 'There is, therefore, now no real contest between the parties as to the right to that [sterling]300. We have, therefore, a position in which this Court is asked to deal with a matter where the legal rights of the parties to that [sterling]300 are not now in actual controversy...we think, as the matters now stand, what the Court is really asked to do is to give an advisory opinion on the construction of the policy of insurance.' (at 394) 19 There is no doubt that Mr Aalders is asking the Court to advise the parties as to what their rights would be under a hypothetical state of facts the hypothetical state of facts being the circumstances if Mr Aalders were unable to obtain registration as a tax agent on any other basis. As I have already pointed out earlier in this judgment citing Lord Loreburn LC in Glasgow Navigation Company v Iron Ore Company , that is not the function of a Court of law. 20 The only question which remains then is whether determination of the issue of the application of the TTMR Act to New Zealand tax agents in these circumstances would be in the public interest. Mr Aalders made strong submissions both in writing and orally to the effect that: &#8226; the Tribunal treated New Zealand qualifications with disdain, and discriminated against him as a New Zealand tax agent &#8226; the courts in New Zealand have enforced the Trans-Tasman arrangements, for example in relation to medical practice, and the Australian courts should also do so &#8226; the position taken by the Board before the Tribunal was a 'ploy or disguise' to attempt to defeat the intent and spirit of the Arrangement and the TTMR Act &#8226; the decision of the Tribunal requires the New Zealand government to give up its right to its own sovereign decisions and to make those subservient to whims of the tax bureaucracy of Australia in order for the TTMR regime to apply.