Case: Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334
Outcome: applied
Private Detectives Case is but a particular example of the application of the principles expounded in the joint judgment in Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 as to the means of differentiating between a permissible invocation of judicial power and the impermissible posing of an academic or hypothetical question. That exposition is of particular importance because of the way in which "matter" has come to be understood for the purposes of Federal jurisdiction. The following propositions emerge from that exposition: (a) The purpose of a judicial determination is the making of a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy (at 355, [44]); (b) In light of that purpose, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions (at 355-356, [47]); (c) It does not violate this proposition for a declaration to be sought as to whether conduct which has not yet taken place will not be in breach of contract or a law (at 356, [47]); and (d) The crucial difference between the seeking of such a declaration and an advisory opinion is whether what is sought is based on a concrete situation as opposed to being divorced from the facts (at 356, [48]). The last of these propositions was illustrated by the High Court in that case (at 356, [48]) by reference, with evident approval, to the following passage from Zamir I and Lord Woolf, The Declaratory Judgement, (2 nd ed, 1993) at 132: "If ... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion." [Emphasis in original] In the Private Detectives Case (at 401-402, [29]-[32]) Sackville J analysed the nature and effect of the pleaded case in the following way: In the present case, a reading of the Statement of Claim makes it plain that the Institute seeks the declarations it claims independently of any specific factual allegations. The pleading does not allege that the Institute or its members have sought specific information from an identified organisation for a particular purpose. Nor is it alleged that the organisation denied the request by reason of a particular provision of the Privacy Act or determination of the Commissioner. As I have noted, the Institute seeks no relief in respect of any refusal by the Commissioner to make a determination under s 72 of the Privacy Act. The Statement of Claim merely alleges that the Institute 'through its members' undertakes investigations on behalf of clients in connection with 'litigation, potential litigation and matters related to litigation' and that the investigations involve obtaining personal information from organisations which record the information for their own business purposes (pars 4, 6). It is then said that the Privacy Act proscribes the disclosure by organisations of personal information to the Institute and its members unless the disclosure is 'required or authorised by or under law'. The Statement of Claim does not identify the circumstances in which particular investigations have taken place, the organisations requested for information or the particular use to which the information was intended to be put. The difficulty is not that declarations sought by the Institute go merely to future events or circumstances. The difficulty is that they cannot quell any existing controversy between the Institute and the Commissioner. The first declaration, before it can be meaningful, requires a number of factual and legal issues to be determined. It must be established that the disclosing entity is an 'organisation' within the meaning of the Privacy Act and that the organisation is subject to the National Privacy Principles. The disclosure must be of 'personal information', as defined in the Privacy Act . It also must be for the purpose of enabling the Institute or a member to investigate on behalf of citizens in corporations 'matters concerning litigation, or potential litigation' (whose purpose is not made clear). The second declaration creates the same difficulties. The conclusion which his Honour reached as a result of that analysis (at 402, [32]) was that, "in effect, the Institute seeks an advisory opinion from the Court without reference to any concrete facts". That conclusion was fatal for the Applicant Institute in that case. Applying the propositions evident in Bass v Permanent Trustee Co Ltd , Sackville J held that the proceeding did not involve a "matter" and hence that the Court lacked jurisdiction under s 39B(1A)(c) of the Judiciary Act to entertain the Institute's claim for declaratory relief.