The declarations
22 As noted in the March reasons, notwithstanding the enactment of the Competition and Consumer Act 2010 (Cth), Schedule 7 item 6 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth) preserves the operation of the Trade Practices Act in relation to acts or omissions that occurred before the commencement of the new legislation. The Trade Practices Act thus applies to the respondents' conduct in this case.
23 In the March reasons, I concluded that in accordance with the preponderance of relevant authority, the court had power to make declarations sought by consent on the basis of a statement of agreed facts in an ACCC instituted proceeding.
24 In ACCC v MSY Technology Pty Ltd (No. 2) [2011] FCA 382 ("ACCC v MSY"), Perram J has since expressed the view that, although declarations as to public rights may be made on the basis of an agreed statement of facts, they may not be made by consent. Rather, such declarations may be made only if a contradictor has contested the relief.
25 Perram J identified the two principal impediments to the making of declarations by consent and on the basis of agreed facts as:
(a) the principle derived from Wallersteiner v Moir [1974] 1 WLR 991 ("Wallersteiner v Moir") suggesting that declarations should not be made on submissions, but only on evidence ("the evidence requirement"); and
(b) the principle derived from Lord Dunedin's speech in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 ("Russian Commercial") suggesting that a declaration may not be made in the absence of a contradictor ("the contradictor requirement").
26 On a detailed analysis of the judicial antecedents in the above principles, Perram J concluded that the evidence requirement derived from Wallersteiner v Moir was based on a misreading of the authorities and was otherwise unpersuasive.
27 Further, in Perram J's view, Finkelstein J's holding in ACCC v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74 that a judge of the Federal Court was bound not to grant a declaration involving a public right in the absence of supportive evidence was based on a misconstruction of the ratio of BMI Ltd v Federated Clerks Union of Australia (1983) 76 FLR 141 ("BMI").
28 In contrast, Perram J recognised that Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 ("Forster") imposed a binding requirement for a proper contradictor. In Forster, Gibbs J (with whom McTiernan, Stephen and Mason JJ agreed on that issue) approved Lord Dunedin's description of a proper contradictor in Russian Commercial as "some one presently existing who has a true interest to oppose the declaration sought" (at 437 to 438).
29 In Perram J's view, the majority in BMI (Keely and Beaumont JJ) held that, additionally, a contradictor was "a party arguing against the granting of the relief and that this could not be satisfied where the matter proceeded by consent" (at [32]). Perram J considered that, as the absence of a contradictor (in the sense of a party contesting the declaratory relief sought) was the basis of the majority's decision in BMI, a single judge of the Federal Court was bound not to make a declaration involving a public right in the absence of a contest on the question.
30 His Honour nevertheless concluded that the majority view in BMI was probably incorrect and acknowledged that, contrary to his understanding of BMI, a large number of declarations by consent had in fact been made by this court.
31 Perram J concluded at [43]:
(d) this court is bound by Forster not to make declarations without a contradictor;
(e) as a matter of correct legal doctrine a contradictor will be present when all proper defendants have been joined and so are bound to the result. They will not cease to be contradictors merely because they consent to the proposed declarations;
(f) BMI has, as its ratio decidendi, the contrary proposition which binds me.
32 While in my view his Honour's conclusions in sub‑paragraphs 43 (d) and (e) are correct, I am not, with respect, persuaded that the ratio of BMI is such as to preclude single judges of this court from making declarations involving a public right in the absence of a contradictor who contests that relief.
33 In BMI, the applicants, a group of employer organisations, sought three distinct species of relief, viz:
(a) an interpretation under s 110 of the Conciliation and Arbitration Act 1904 (Cth) ("C&A Act") of certain provisions of a federal award,
(b) declarations under s 21 of the Federal Court of Australia Act 1976 (Cth); and
(c) declarations under s 108 of the C&A Act as "a person interested" that a State award was invalid under s 65 of the C&A Act, in so far as it purported to bind BMI in respect of employees engaged to perform various categories of work within three classifications of the federal award.
34 The applicants' first two claims were dealt with by a single judge, but the third claim for a declaration under s 108 of C&A Act was required to be heard by the Full Court.
35 The majority (Keely and Beaumont JJ) in their joint reasons observed that there was no opposition at the hearing of the application for the declaration under s 108 of the C&A Act. The applicants presented full argument, but the respondents represented at the hearing merely indicated that they raised no objection to declarations in the terms sought.
36 The majority observed that the discussions of Buckley and Scarman LLJ in Wallersteiner v Moir of the evidence requirement were pertinent to the present case. The majority stated that under s 108(3), the court had a discretion as to whether, in a particular case, it was appropriate to make a declaration and circumstances which must exist for the making of a declaration.
37 Their Honours stated (at 153):
For the reasons advanced by Buckley LJ and Scarman J above we think that it is generally undesirable that the court should grant relief by way of declaratory orders under s. 108 in the absence of any contest on the question.
38 Their Honours contemplated that it might be different if the matter were merely one of private right, but recognised that in the case before them, the declarations, if made, could practically extend well beyond the parties and would be seen to express the court's views, notwithstanding that it had not had the benefit of any contrary argument.
39 Their Honours proceeded to consider extensively a number of different matters, which also weighed against the exercise of their discretion, including:
(a) The fact that there were no practical benefit or useful purpose from the court's expression of its views on the question, as it had become, due to the agreement of the parties, academic.
(b) There were doubts about whether the federal award applied to the first applicant, BMI, as BMI may have been a member of an employers' association expressly excluded from the application of that award.
(c) It was arguable that the State award was not inconsistent with the federal award.
(d) There was doubt about, and no evidence of, the eligibility of BMI employees for membership of the State union or of any other respondent who consented to the declaration.
(e) The form of the declaration sought was unsatisfactory, because it declared an invalidity limited to certain activities of a particular employer, and, if made, could cause confusion, as it might be assumed that the court had found the State award otherwise valid.
40 Their Honours concluded (at 155) that:
In the circumstances we would decline to make the declaration sought. It is apparent from what we have said that the refusal of the relief sought is made on discretionary grounds…
41 In my opinion, while the majority in BMI characterised a proper contradictor as a party who contested the question, their discussion of that issue was expressly within the context of an application under s 108 of the C&A Act and the peculiar features of the case before them. On my reading of their Honours' reasons, they did not purport to enunciate absolute requirements for a proper contradictor generally applicable in all contexts. Further, the absence of a proper contradictor (as defined) was but one of a number of factors which the majority proceeded to consider as relevant to the exercise of their discretion. Their Honours noted that the absence of a contradictor who contested the relief sought had a particular impact on some other relevant factors, but it did not appear to be, in itself, decisive. Their Honours' comprehensive analysis of a number of other relevant factors suggests the contrary.
42 As the joint submissions stated:
77. The true ratio in BMI Ltd is that, as a matter of discretion, the Court was not persuaded to grant the declaratory relief because of a stated concern that such an order could give a misleading impression in relation to activities of parties not before the Court. This (merely) reflects an exercise of discretion in the circumstances of that case. The majority judgment neither states nor purports to state a more general principle of the type identified by Perram J.
78. Further, and in any event, the matters causing concern which presented in BMI Ltd do not present in the circumstances of the present case. Those matters, identified above, that persuaded the Court in BMI Ltd to exercise its discretion to not make the declaration there sought by the applicant are not present in this controversy.
43 For the above reasons, in my opinion, the BMI majority's requirement for a contradictor contesting the relief sought may be confined to declarations sought under the particular legislation relevant in that case and, moreover, was but one of a number of factors relevant to the exercise of the discretion.
44 Consequently, I considered that in the present case, the requirement for a proper contradictor was satisfied despite the absence of any contest, and it was both permissible and appropriate to make the relevant declarations by consent.