Case: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) [1993] FCA 83 ; (1993) 41 FCR 89 
Outcome: referred to
last observation reflects what was said by a Full Court in Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) [1993] FCA 83 ; (1993) 41 FCR 89. It was there held that the Court has power under s 21 of the Federal Court of Australia Act to make a declaration of right in proceedings for injunctive relief brought under s 80 of the Trade Practices Act 1974 (Cth) irrespective of whether injunctive relief is granted or not: Sheppard J at p 98 (Foster J agreeing at p 106); Hill J at 110. As Sheppard J said: "[a]s in [ Australian Softwood Forests Pty Ltd v Attorney-General (NSW); Ex rel Corporate Affairs Commission [1981] HCA 49 ; (1981) 148 CLR 121] , it is often useful to be able to make a declaration in a case that does not warrant the granting of injunctive relief. The making of declaratory orders in such cases without the grant of injunctive relief in litigation brought under the general law to enforce public rights is not an uncommon course." In the same case, Hill J said (at 110) [t]here can be little doubt that a declaration might be obtained by a regulatory authority that particular conduct is in breach of a statutory provision ... It has never been suggested that no power exists to grant such declaratory relief merely because the consequence of a declaration is to declare the existence of a wrong. The declaration that an offence has been committed is the concomitant of the non-existence of a right. Semantically, it may be said to be the declaration of a negative right. It is appropriate, in my view, to refer to it as a declaration of right. 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.