B.M.I. Ltd & Ors v Federated Clerks Union of Australia (NSW) Branch & Ors [1983] FCA 403

organization of employers under the Commonwealth Act. Each is a party to the 1980 Commonwealth Award and thus they and

their respective members are bound by the terms of that

award. BMI carries on business at Greystanes in the state of New South Wales. It carries on the business of motor vehicle

repairs and servicing, motor vehicle parts sales, fuel sales, tyre retreading and sales and new and used vehicle sales.

under the Commonwealth Act. The Clerks' Union is not a party

to the 1980 Commonwealth Award and thus it and its members

Among the classifications of employees covered by the 1980 Commonwealth Award are "record keeper", "automotive salesman (experienced)", and "motor vehicle salesman". In the course of its business BMI employs persons coming within those classifications. Quite clearly, employees engaged by BMI to perform duties of the kind performed by a record keeper are eligible to be members of the Clerks' Union. The eligibility of persons to be members of the Clerks' Union who

are engaged by BMI to perform duties of the kind performed by

employees within the other two classifications is not so

clear, but that doubt is immaterial for the resolution of the

the proper construction of the 1980 Commonwealth Award, BMI

was not bound by the terms of that award in respect of its

employees engaged to perform duties within the three Classifications already mentioned. The interpretation sought by the applicants under s. 110, Commonwealth Act was to the effect that BMI was bound by the provisions of the 1980

Commonwealth Award in respect of its employees engaged to

perform duties within the three classifications already mentioned and that employees performing duties described in the affidavits filed in support of the application were within one or other of the three classifications. The applicants sought also a declaration to the same effect under

Having regard to s. 110, Commonwealth Act, it is difficult to see why the applicants gave notice of the application to the Clerks' Union. Any interpretation under that section would not be binding on the Clerks' Union. Possibly the claim for the declaration under s. 21, Federal Court Act, was sought to overcome that difficulty. Even so, it is difficult to see the basis on which such a declaration could be made since that declaration would be based on the equitable declaratory order which originated in the Court of Chancery in England and which, by the Judicature Act 1873, (Imp.), could be granted by the High Court of Justice in England. See also O.XXV, r. 5, Rules of the Supreme Court 1883 (Eng.) Similarly the Supreme Courts of those States of

Australia which adopted the Judicature Act provisions had

power to grant declaratory orders; see, for example, what 1s

now sub-section 62({1) Supreme Court Act 1958 (Vic) which was

first enacted in 1883. Section 21 Federal Court Act is based

The application came on for directions at Melbourne on 22 October, 1982. The Federated Clerks' Union, New South

Wales Branch, "the State Union", a corporation under New South Wales State law, made application for the application to be heard and determined in Sydney. In support of the claim for the change of venue, the State Union asserted that the existing dispute with BMI originally commenced in the Industrial Commission of New South Wales, a State Industrial Tribunal. The State Union was a necessary party to those proceedings. At the directions hearing, consent orders were

made including a direction that the applicants have leave to

amend their application. Pursuant to that leave, the

applicants added a claim pursuant to s. 108, Commonwealth Act

for a declaration that the Clerks' (State) Award, "the State

Award", being an award made by a State Industrial Authority under legislation of the Parliament of the State of New South Wales was invalid under s. 65, Commonwealth Act in so far as it purported "to bind BMI in respect of its employees" engaged to perform the various categories of work within the three classifications of the 1980 Commonwealth Award already mentioned. This declaration was sought under the express provisions of s. 108, Commonwealth Act. That section is set

"108. (1) A person interested may apply to the Court for a declaration that a State law

dealing with an industrial matter, or an order, award, decision or determination of a

State Industrial Authority, is invalid under section 65.

(2) The applicant shall give fourteen days' notice of the application to the

Attorney-General of the State concerned, who shall have the right to appear upon the

application. (3) The Court shall hear and determine the

application and make such declaration as it thinks just."

"65. Where a State law, or an order, award, decision or determination of a State

Industrial Authority, is inconsistent with, or deals with a matter dealt with in an award,

the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid."

The application was due to come on for further directions in Melbourne on 16 December 1982, but on 10 December 1982 in Sydney the Court refused an application by the State Union that the directions hearing fixed for 16 December 1982, be adjourned on the ground of non-compliance

with directions given on 22 October 1982. Material before

the Court on 22 October 1982 and on 10 December 1982,

indicated that the State Union was considering challenging

the validity of sections 65 and 108, Commonwealth Act.

On 16 December 1982 in Melbourne the Court gave directions that the application be amended by naming as respondents each of the organizations of employees named in Schedule A to the 1980 Commonwealth Award, being organizations bound by the terms of that Award, each of the organizations of employers named in Schedule B to the 1980 Commonwealth Award other than the M.T.A. (N.S.W.) and V.A.C.C., being organizations bound by the terms of that Award, the Clerks' Union and the State Union. Additional

directions were given directing service of the application as

directed on various respondents including the Clerks' Union

and the State Union, that the applicants deliver a statement

of claim, that defences thereto be delivered and that notice be given under s. 78B of the Judiciary Act 1904 in respect of

The applicants delivered a statement of claim on 21 December 1982. Paragraphs 11 and 12 thereof alleged that the

Clerks' Union and the State Union claimed that BMI was not

bound by the 1980 Commonwealth Award in respect of its employees engaged to perform duties within the three classifications referred to earlier in these reasons, but was

bound by the State Award in respect of those employees. By

paragraph 10 of their joint defence, the Clerks' Union and the State Union admitted they made the claims set out in paragraphs 11 and 12 of the statements of claim. Their defence did not raise the question of the validity of

sections 65 and 108, Commonwealth Act. It appears that no

At a further directions hearing in Melbourne on 1 February 1983, the Court gave directions that there be mutual discovery and interrogatories between BMI and M.T.A. (N.S.W.) on the one hand, and the Clerks' Union and the State Union on the other and that the evidence to be relied on by the parties at the hearing of the application be given by way of affidavit. These directions were complied with, but not always within the time specified by the directions. Voluminuous material was filed by the parties directed to the issue raised by the interpretation sought under s. 110, Commonwealth Act and the declaration sought under s. 108,

Under the provisions of s. 118A, Commonwealth Act and sections 19 and 20, Federal Court Act, the application

under s. 110, Commonwealth Act and the claim under s. 21,

Federal Court Act, had to be heard and determined by the

Federal Court constituted by a single Judge, while the

application under s. 108, Commonwealth Act had to be heard

and determined by a Full Court of the Federal Court. No order had been made under s. 118C, Commonwealth Act, that the

claim under s. 110 be heard and determined by a Full Court.

On 21 November 1983, the amended application came on for hearing before a Full Court. Counsel appeared for the applicants. Counsel appeared for some of the respondent organizations of employees. Counsel appeared for the Clerks' Union and the State Union. There was no appearance for the other organizations, whether of employees or employers. There was no appearance on behalf of the Attorney-General for the State of New South Wales, although notice had been given to him under s. 108, Commonwealth Act and he had appeared at

When the amended application came on for hearing, counsel for the applicants informed the Court that he had been told on the previous evening that the Clerks' Union and the State Union proposed to consent to the orders sought in the amended application. Counsel for the Clerks' Union and the State Union announced to the Court that his instructions were that those respondents no longer contended "that the Vehicle Industry - Repair, Services and Retail - Award 1980 does not apply to BMI Ltd. trading as Prospect Motors in respect of its employees performing the duties" coming within

the three classifications already mentioned. He announced to

the Court that his clients consented to the orders sought in

the amended application. Counsel for the organizations of employees who appeared at the hearing announced that those organizations consented to the orders sought in the amended

In these circumstances the Court constituted by a single Judge, refused to make an order under s. 118C, Commonwealth Act that the amended application, in so far as it related to the claims under s. 110, Commonwealth Act and s. 21 Federal Court Act, should be heard and determined by a Full Court. After further submissions the Court, constituted by a single Judge, made orders by consent giving an interpretation under s. 110, Commonwealth Act to the effect sought by the applicants, but the order was limited in its operation to those organizations bound by the 1980 Commonwealth Award. In particular the Clerks' Union and the State Union were not named as parties to that interpretation.

The Court declined to make the declaration sought under s.

21, Federal Court Act; compare McLeish v. Faure (1979) 40 F.L.R. 462, per J.B. Sweeney, Evatt and Northrop, JJ. at pp.

to be considered by the Full Court. The declaration sought

was limited in its operation, namely a declaration that the

State Award was invalid in so far as it purported to bind BMI

in respect of its employees engaged to perform the various

categories of work coming within the three specified classifications of the 1980 Commonwealth Award. If made, the declaration would be binding upon the parties to the application. In practical terms, the Clerks' Union, not being a party to the 1980 Commonwealth Award nor the Union specified in the State Award, would not be affected by the declaration. In practical terms, each of the other organizations being parties to the application, not being a union specified in the State Award, would not be affected by the declaration. In practical terms, BMI and the State Union would be the only parties to the amended application who would be affected directly by the declaration. That effect would be that the State Union would be estopped from

enforcing the provisions of the State Award against BMI with

respect to its employees engaged to perform the various categories of work within the three specified

In view of the consents announced by the respondents to the amended application, it is difficult to

see why the declaration should not be made by consent. In

that event the Court would not be expressing an opinion on whether any particular group of employees were eligible to become and remain members of the Clerks' Union or the State Union. In particular the Court would not be expressing any opinion on the principles of law to be applied when

considering the application of sections 65 and 108,

Commonwealth Act. From the material before the Court, it was clear that a genuine matter or lis had arisen between BMI and M.T.A. (N.S.W.) on the one hand, and the Clerks' Union and the State Union, on the other. From the pleadings, it is

clear that issue had been joined by the parties in that

matter or lis. The applicants were seeking a remedy

expressly conferred by Parliament. The parties having

resolved their differences at the door of the Court, the Court should exercise the jurisdiction conferred upon it and make the declaration sought by consent. I would go further and say that unless good reason to the contrary was shown the Court was under a duty to exercise that jurisdiction and the Judges of the Court, if they failed to exercise that jurisdiction would be liable to mandamus being granted against them by the High Court of Australia directing them to

In the event, the applicants presented their case in some detail. The State Award deals with a number of industrial matters pertaining to the relations of employers and employees which are dealt with by the 1980 Commonwealth Award. The 1980 Commonwealth Award applies in the State of New South Wales to the operations carried on by BMI at its Greystanes establishment with respect to its employees engaged to perform the various categories of work within the

three specified classifications. In those circumstances it

is clear that in so far as the State Award deals with those

industrial matters, it is inconsistent with the 1980

The 1980 Commonwealth Award, which came into operation from the beginning of the first pay period to commence on or after 5 May, 1980, superseded earlier Commonwealth awards having a similar incidence clause,

binding the same parties and dealing with similar subject

matters. Sub-clauses 3(¢c) and (d) of the 1980 Commonwealth

"(c) From the date of coming into operation, this award shall supersede the Vehicle Industry - Repair Services and Retail Award 1976 and the Vehicle Industry - Repair, Services and Retail Interim Wages Award 1980, but no rights, obligations or liabilities incurred or accrued under either of the

aforementioned awards shall be affected by such supersession.

"(d) Notwithstanding anything elsewhere contained herein the legal entitlements of an

employee shall not be reduced by reason of the making of this award."

During the course of submissions, it was suggested that sub-clause 3(d) indicated that the 1980 Commonwealth Award was not intended "to cover the field" in relation to the industrial matters for which the award made provision. In my opinion that

suggestion should not be accepted. The sub-clause is directed to

preserving existing legal entitlements which an employee has; it does not express an intention to permit inconsistent State awards

Section 109 Constitution provides that where a law of a State is inconsistent with a law of the Commonyealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid. It is only necessary to make reference to three of the many authorities which have discussed the principles of law to be applied in giving effect to that section. It is sufficient to say that the issues giving rise to the application of those principles can arise in many different ways. They can arise in a prosecution for breach of a State law when the defence claims that the State law is inconsistent with an award made under the Commonwealth Act; see, for example, Collins v. Charles Marshall Pty. Ltd. (1955) 92 C.L.R. 529. They can arise in a prosecution under a State law based upon a breach of a determination made by a State Industrial Authority when the

defence claims that the determination is inconsistent with an

award made under the Commonwealth Act; see, for example Blackley

v. Devondale Cream (Vic.) Pty. Ltd. (1968) 117 C.L.R. 253. They

can arise where a State law imposes obligations upon employers

and employees seek equitable declaratory orders that the State

law is inconsistent with awards made under the Commonwealth Act?

see, for example, Metal Trades Industry Association of Australia

v. The Amalgamated Metal Workers' and Shipwrights' Union (1983) 57 A.L.J.R. 639, which is the most recent authority dealing with

those principles in so far as they relate to the Commonwealth Act. For present purposes, that case is of the utmost importance. It sets out the principles which should be applied to the present case. In particular, reference is made to the judgments of Gibbs C.J. and Wilson and Dawson JJ. at pp. 642-4, Mason, Brennan and Deane JJ. at pp. 642-7 and Murphy J. at p. 648. In the present case, it is not necessary to discuss the

various tests to be applied in determining inconsistency since,

in the words of Murphy J. "the inconsistency is manifest".

The more difficult question relates to the application of sections 65 and 108, Commonwealth Act. It is apparent that invalidity of an inconsistent State law arises, not from s.65, Commonwealth Act, but from s. 109, Constitution. Nevertheless s.

65 is of "paramount importance for it is the expression of the statutory intention that the arbitrator's exercise of power is to operate to the exclusion of any State law", per Mason, Brennan

In these circumstances, questions arise concerning the

validity of the jurisdiction conferred upon the Court by s.- 108, Commonwealth Act. Sub-section 108(1) confers a remedy upon a person interested and authorises that person to apply to the Court for a declaration that a State award of a State Industrial Authority "is invalid under section 65". Any invalidity arises,

not from s. 65 Commonwealth Act but from s. 109, Constitution.

Accordingly it is possible that the Federal Court has no

jurisdiction to make a declaration under s. 108, Commonwealth

This contention was not raised in submissions before the

Court. The issue was not raised by the pleadings of the parties and thus no notice has been given under s. 78B Judiciary Act. In the absence of submissions on this matter the Court should exercise the jurisdiction so conferred, but at the same time indicate that if the issue is raised in future proceedings, it will need to be considered in the Light of submissions then made. In adopting this course, the Court should follow the decision of the Commonwealth Industrial Court, as it was then known, in re Municipal Officers' (Victoria) Award 1959 (1962) 4 F.L.R. 426. In that case a claimant sought a declaration under s. 108, Commonwealth Act. Counsel for the Municipal Officers' Association contended that the Commonwealth Industrial Court had no jurisdiction to entertain the application since the State law was not "invalid under section 65" but under s. 109, Constitution. That contention was rejected by Spicer C.J. at pp. 428-30, by Dunphy J. at pp. 433-4 and by Joske J. at pp. 443-4. In the absence of submissions to the contrary, this Court should

The final matter for consideration relates to whether the

Court, in the exercise of its discretion, should refrain from

making the declaration sought. The applicants have brought the

proceedings in good faith. There was a genuine issue arising between the applicants and the Clerks' Union and the State Union. There is no doubt that BMI is a person interested under sub-section 108(1) Commonwealth Act. On the issue of discretion I receive no assistance from authorities in other courts when exercising power to grant a declaration, being a form of discretionary relief originating in the Court of Chancery in England. In the common law courts no action could be brought for a declaratory order of existing or future rights. In the Court of Chancery, declaratory orders in the nature of declarations of right could be made but only if some substantive right to relief was claimed as the principal relief. A brief history of the power of courts of equity and of courts exercising equitable jurisdiction to grant declaratory orders and the statutory attempts to remove the restriction that a declaratory order could be made only as ancillary to the granting of principal relief, appears in Meagher, Gummow and Lehane, Equity, Doctrines and Remedies, in the chapter headed "Declarations", commencing at p. 387. The same chapter makes reference to discretionary matters

which may be taken into account in declining to grant a

declaratory order. Because of the peculiar, in the sense of special, legislative provisions in New South Wales the appropriate Judicature Act provisions were not introduced into that State until 1965. New South Wales' authorities on this matter are of little relevance to proceedings in other States which had adopted the appropriate Judicature Act provisions in

the 19th century. Reference has been made already to the

Victorian legislation. As in England, the High Court of Australia, by its Rules of Court, has adopted the appropriate Judicature Act provisions; see 0. 26 r. 19. It was not until 1972 that the Haigh Court in Forster v. Jododex Australia Pty.

Ltd. (1972) 127 C.L.R. 421 freed the courts in New South Wales

In 1883 the High Court of Justice in England first made O.XXV r.5 of its Rules of Court. That rule is now 0.15 r.16. In any proceeding properly before that Court that rule, as a matter of practice and procedure, authorized the making of a declaratory order. That rule did not confer on the Court a jurisdiction to make a declaration which the Court did not possess previously; compare s.108 Commonwealth Act; it empowered the Court to make declarations concerning rights no matter what the source of those rights. The rule was interpreted liberally. In this regard,

reference is made to Forster's case, supra, especially per Gibbs

J. commencing at p.435. The position is stated clearly by Lord

Diplock in O'Reilly v. Mackman [1983] 2 A.C. 237 at pp.276-7:

• declaratory judgments is conferred by what is now R.S.C., Ord. 15, r.16. The language of the rule which was first made in 1883 has never been altered, though the numbering of the rule has from time to time been changed. It provides:

'No action or other proceeding shall be open to objection on the ground

that a merely declaratory judgment er order is sought thereby, and the

court may make binding declarations of right whether or not any

This rule, which is in two parts separated by 'and,' has been very liberally interpreted in the course of its long history, wherever it appeared to the court that the justice of the case required the grant of declaratory relief in the particular action before it. Since 'action' is defined so as to have included since 1938 an originating motion applying for prerogative orders, Ord. 15, r. 16 says nothing as to the appropriate procedure by

which declarations of different kinds ought to be sought. Nor does it draw any distinction

between declarations that relate to rights and obligations under private law and those that relate to rights and obligations under public law. Indeed the appreciation of the distinction in substantive law between what is private law and what is public law has itself been a latecomer to the English legal system. It is a consequence of the development that has taken place in the last 30 years of the

procedures available for judicial control of administrative action."

It is instructive to read the whole of the reasons for judgment of Gibbs J. in Foster's case, as well as the whole of the speech of Lord Diplock. In addition, reference should be made to the reasons for judgment of Lord Denning sitting as a member of the Court of Appeal in O'Reilly's case reported in [1983] 2 A.C. commencing at p.250. In each of these cases the High Court of Australia and the High Court of England had power to grant declaratory orders in matters properly before the Court. In the matter before this Court, the Federal Court is exercising a statutory jurisdiction to grant a specific remedy expressly conferred upon specified

More important, however, is the nature of the remedy created by s. 108, Commonwealth Act. There is nothing to suggest that the remedy of a declaration conferred by that section should be construed as a declaratory order of the type made by the Court of Chancery and the Supreme Courts of the States. In creating federal courts the Parliament of ABustralia has often adopted the practice of creating remedies and conferring jurisdiction on federal courts to grant those

remedies. The nature of this jurisdiction is referred to by

me in Denpro Pty. Utd. v. Centrepoint Freehold Pty. Ltd. (1983) 48 A.L.R. 39 at p. 47.

The Federal Court Act constitutes the Federal Court

• " - v - asres '

a court of law and equity; see sub-section 5(2). That Act

confers upon the Federal Court a number of the powers

contained in the Judicature Act provisions; see, for example,

sections 21 and 22. In appropriate cases the Federal Court

will exercise the powers so conferred including the power to

make an equitable declaratory order; see, for example,

McLeish v. Faure (supra) and in so doing will exercise a

The Commonwealth Act constitutes the Australian Industrial Court. In that Act the word "Court" is defined to mean the Australian Industrial Court. In tthe present case

the Federal Court is exercising the jurisdiction and powers

conferred by s. 108 Commonwealth Act by reason of the provisions of sub-section 118A(1) of that Act. It is important to remember that the Australian Industrial Court is not constituted a court of law and equity. The Judicature Act provisions do not apply to the jurisdiction exercised by

that Court. There are limitations on the powers of that

Court; see, for example, R.v. Forbes; Ex parte Bevan (1972)

127 c.L.R. 1. In particular the Australian Industrial Court has and had no power or jurisdiction to grant an equitable declaratory order being an order of the type originating in

Sub-section 108(3), Commonwealth Act confers an express jurisdiction and power on the Australian Industrial Court to make "such declaration as it thinks fit". Any declaration so made would not be an equitable declaratory order. A declaration so made would be an express remedy created by statute and the remedy, if granted, is granted in

favour of a person interested. The Australian Industrial Court had jurisdiction conferred upon it to grant that statutory remedy. There was no principal relief that could be claimed, the declaration itself being the principal and

to make an order by way of declaration is not novel. The

Commonwealth Act contains a number of provisions creating

remedies conferring upon specified persons the right to make

application to the Court for orders in the nature of declarations relating to those remedies and conferring jurisdiction and power on the Court to grant those orders in

the nature of declarations. Some of these provisions are

mentioned, namely, s. 140, particularly sub-sections (2) and (5D), s. 143, particularly sub-section (3B), s. 144, particularly sub-sections (5) and (5A), s. 165, particularly sub-section (3), s. 171C, particularly sub-section (1), s. 171D, particularly sub-section (1), s. 171E, particularly sub-sections (2) and (3) and s. 171G, particularly sub-section (1). To the best of my knowledge it has never been suggested that the Court should consider that those orders in the nature of declarations should be dealt with as if they were equitable declaratory orders of the kind developed in the Court of Chancery and in other courts exercising general jurisdiction. Any present suggestion to

The Court of Chancery and more recently courts exercising general jurisdiction developed the declaratory order to fill a perceived need in practice and procedure. That remedy is discretionary; it does not go to jurisdiction. Many authorities discuss the grounds upon which that discretion should be exercised. The jurisdiction

and power conferred by s. 108 Commonwealth Act are to be

exercised by the Federal Court. There is no doubt that BMI

is a person interested within the meaning of sub-section

108(1), Commonwealth Act. In making a declaration the

Federal Court is not making an equitable declaratory order. It is granting a specific remedy conferred by the Commonwealth Act. The Court should not engraft onto this jurisdiction and power the restrictions inhibiting the making of equitable declaratory orders. The jurisdiction and power

to make the statutory declaration under s. 108 Commonwealth

In the present case the applicants seek a limited declaration, limited to parties and limited in subject Matter. They have made out their case. This is a genuine and bona fide application. There is no reason why the declaration sought should not be made. I would make the

MOTORS ) MOTOR TRADERS ASSOCIATION OF N.S.W. VICTORIAN AUTOMOBILE CHAMBER OF

FEDERATED CLERKS UNION OF AUSTRALIA FEDERATED CLERKS UNION OF AUSTRALIA

THE VEHICLE BULLDERS EMPLOYEES FEDERATION OF AUSTRALIA

AUSTRALASIAN SOCIETY OF ENGINEERS ELECTRICAL TRADES UNION OF AUSTRALIA

THE AMALGAMATED METAL WORKERS' AND "SHIPWRIGHTS UNION

THE FEDERATED IRON WORKERS' "KSSOCIATION OF AUSTRALIA

THE FEDERATED MISCELLANEOUS "WORKERS UNION OF AUSTRALIA

THE SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES' ASSOCIATION TRANSPORT WORKERS' UNION OF "AUSTRALIA

THE FEDERATED STOREMAN AND PACKERS UNION OF AUSTRALIA - - ~ - T METAL INDUSTRIES ASSOCIATION, SOUTH AUSTRALIA

METAL INDUSTRIES ASSOCIATION, "TASMANIA METAL TRADES INDUSTRY ASSOCIATION OF AUSTRALIA

SOUTH AUSTRALIAN AUTOMOBILE CHAMBER "OF COMMERCE INCORPORATED - ~ TASMANIAN AUTOMOBILE CHAMBER OF "COMMERCE ~~ ~~ SCS«;7;7;7; THE VICTORIAN CHAMBER OF "MANUFACTURES - ~

CORAM ; NORTHROP, KEELY and BEAUMONT JJ. DATE =: 21 December, 1983 REASONS FOR JUDGMENT KEELY and BEAUMONT JJ. : In their amended application, the

applicants sought several distinct forms of relief: firstly, pursuant to s. 110 of the Conciliation and Arbitration Act, 1904 ("the Act"), an interpretation of certain provisions of the Vehicle Industry - Repair, Services and Retail - Award 1980 ("the Federal award"); secondly, a declaration, pursuant to s. 21 of the Federal Court Act, 1975, giving effect to the interpretation of the award contended for by the applicants; and thirdly, a declaration, pursuant to s. 108 of the Act, that the Clerks' (State) Award, an award made under the Industrial Arbitration Act, 1940 (N.S.W.), is invalid by virtue of s. 65 of the Act insofar as that award purports to bind the first applicant in respect of its employees performing the various categories of work specified in the

vehicle repairs and service, motor vehicle parts sales, fuel sales, tyre retreading and sales and new and used vehicles

The differences between the parties having been recently resolved, the first and second claims for relief were dealt with by a single Judge of the Court (see sub-s. 118A(4A) of the Act). Northrop J. made certain orders by

declaration sought in the second claim. The third claim, made pursuant to s. 108, was heard by a Full Court as

In support of their claim for a declaration pursuant to s. 108, the applicants submit that the Federal award 1s a comprehensive general industry award in the sense that, on its true construction, it was intended to be an exhaustive determination governing the particular matters

resulting in the inconsistency of the state award which

purports to cover the same field (see Metal Trades Industry

Association of Australia v The Amalgamated Metal Workers' and Shipwrights Union 48 A.L.R. 385). The State award, so the

argument runs, is therefore invalid to the extent previously stated in respect of the performance of the specified

categories of work by employees of the first applicant.

There is no opposition to the claim made by the applicants. Indeed, only the first, second, third, fourth and tenth respondents were represented at the hearing. No

other respondents entered appearances, although served. The

Attorney-General for the State of New South Wales was served

and appeared at a directions hearing but did not appear before us. Although the applicants, through their counsel, presented a full argument in support of the claim now made, the respondents which were represented at the hearing by counsel presented no argument and were content to indicate that they raised no objection to the making of a declaration in the terms sought. In saying this, we intend no criticism of the respondents or of their representatives: there no longer being any differences of opinion between the parties as to whether the Federal award applied to the employees in question, it is natural enough that such a course should be

However, notwithstanding that no objection is raised in this regard, we are by no means persuaded that, in the circumstances, it is appropriate that a declaration as

It is well established that a declaration is a judicial act and ought not to be made merely on admissions of

counsel or by consent, but only if the court is satisfied by

evidence (see P.W. Young, Declaratory Orders (1975) at pp.

84-5). In Wallersteiner v Moir [1974] 1 W.L.R. 991, Buckley

"It has always been my experience and I believe it to be a practice of very long standing, that the court does not make declarations of right either on admissions or in default of pleading. A statement

on this subject of respectable antiquity is to be found in Williams v Powell [1894] W.N. 141, where

Kekewich J. whose views on the practice of the Chancery Division have always been regarded with much respect, said that a declaration by the court was a judicial act, and ought not to be made on admissions of the parties or on consent, but only if the court was satisfied by evidence. If declarations ought not be made on admissions or by consent, a fortiori they should not be made in default of defence, and a fortissimo, if I may be allowed the expression, not where the declaration is that the defendant in default of defence has acted fraudulently. Where relief is to be granted without trial, whether on admission or by agreement or in default of pleading, and it is necessary to make clear upon what footing the relief is to be granted, the right course, in my opinion, is not to make a declaration but to state that the relief shall be upon such and such a footing without any declaration to the effect that that footing in fact reflects the legal situation."

"When a defendant fails to plead, it is ordinarily in the interests of justice that the plaintiff should be able without more ado to obtain judgment for the money or property for which he is suing; the

defendant is not without remedy after judgment in default, for, if he can show a bona fide defence, he

can get it set aside before it is enforced. But, when what is sought is a declaration, there is the risk of irremediable injustice: the court has spoken and words cannot be recalled, even though later they

be negatived; "nescit vox missa reverti," Horace, Ars Poetica, line 390. The power of the court to

give declaratory relief upon a default of pleading, of course, exists, but, for the reason crystallised

by Horace in those four words of his, should be exercised only in cases in which to deny it would be

In our opinion, these observations are pertinent in

the present case. In saying this, we accept that it 1s

possible to exercise the judicial power of the Commonwealth

even if the dispute between the parties no longer exists. (See R. v Davison (1954) 90 C.L.R. 353 at 383; Re Rubber Plastic and Cable Making Industry Award (1963) 8 F.L.R. 395 at p. 397). Further, in our view, although sub~s. 108(3) provides that the Court "shall hear and determine the

application and make such declaration as it thinks just", the Court still has a discretion as to whether, in a particular case, it is appropriate that a declaration should be made and circumstances must exist for the making of a declaration (cf. Forster v Jododex Aust. Pty. Ltd. (1972) 127 C.L.R. 421 at pp. 435-6; Sankey v Whitlam (1978) 142 C.L.R. 1 at p. 20;

Lamb v Moss - 12 October, 1983 - unreported at p. 21).

For the reasons advanced by Buckley L.J. and Scarman J., supra, 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 (see Forster v Jododex Aust. Pty. Ltd., supra, at

pp. 437-8; Halsbury's Laws of England, 4th Ed., Vol. 37 at p. 192; Metzger v Department of Health and Social Securit

[1977] 3 All E.R. 444 at 451). If the matter were merely one of private right between particular parties, for example, a question as to the respective rights of parties under a contract, it may well be appropriate for a court to make a declaration as to those rights by consent. In such a case,

the public and other parties cannot be affected, let alone

bound, by such a declaration (see Hanson v Radcliffe Urban

District Council [1922] 2 Ch. 490 at p. 507; Halsbury's Laws

But different considerations apply in a case such as the present. If a declaration were made, even in the terms sought, its practical operation may well extend beyond the activities of the first applicant. The claim has been fully argued by the applicants and if we were to make the declarations sought, we have little doubt that the grant of

such relief would be perceived by others as the expression by

the Court of its views on the matter, notwithstanding that

the Court has not had the benefit of any contrary argument. We acknowledge that, if it were demonstrated in a particular case that it were necessary that the question be resolved judicially, it may be appropriate for the court to appoint an amicus curiae to put the contrary view, 1f any, on the facts and on the questions of law which arise. However, despite the earnest arguments put by Mr. Stockdale on behalf of the applicants, no need, in any practical sense, has been demonstrated for the Court to express a view on the operation, if any, of s. 65 in the present case: all parties before the Court now agree that the Federal award applies to the employees of the firstnamed applicant, performing the work referred to in the application, and an order for interpretation of the award to that effect has now been made by Northrop J.. It 1s not easy to imagine what useful

purpose would be served by the Court making the declarations

sought except possibly to achieve the undesirable object of

binding, in practical terms, other parties in other

In our view, not only is there no contradictor in the present case but also the question now put is academic and as a matter of discretion, the Court should not grant

declaratory relief in such a case, even where it has a

statutory jurisdiction to do so (see Bruce v The Commonwealth

Trade Marks Label Association (1907) 4 C.L.R. 1569 at pp. 1570-1; Thomas v Attorney-General [1937] Ch. 72; Australian

Boot Trade Employees' Federation v The Commonwealth (1954) 90 C.L.R. 24 at pp. 47, 50 and 53; Rickards v The Medical

Benefits Fund of Australia Limited & Anor. - unreported - 18

The importance of the fact that there is no contradictor in the present case may be illustrated briefly by reference to three matters. Firstly, to put it at its lowest, it is possible that the Federal award does not apply to the firstnamed applicant because of the terms of clause

"(b) Notwithstanding anything elsewhere contained in this award it shall not apply :

(i) to an employer who is a member of The Vehicle Manufacturers' Association of

Australia or to the employees of such an employer;"

There 1s no evidence excluding the possibility that the firstnamed applicant is a member of The Vehicle Manufacturers' Association of Australia. The affidavit of Ian Trevitt McKimm, sworn 30 November, 1982, expressly states that the firstnamed applicant "is bound by the Award pursuant

to Clause 4(a)(ii) ..." but curiously makes no reference whatever to clause 4(b)(i) which is the next clause. Nor is there any detailed evidence as to the matters dealt with in

""(da) Notwithstanding anything elsewhere contained herein the legal entitlements of an employee shall

not be reduced by reason of the making of this award."

It appears to be arguable, although we express no opinion in the matter, that the State award is not inconsistent with the Federal award on the ground that the maker of the Federal award expressed an intention that "the legal entitlements of an employee", including his entitlements under the State

award, "shall not be reduced by reason of the making of this

award" (see Re Municipal Officers (Victoria) Award 1959 (1962) 4 F.L.R. 426 at 431, 445).

_ Thirdly, to the extent to which the declaration is sought upon the basis of the consent of those respondents represented at the hearing, it was conceded by the applicants' counsel that there is a doubt as to whether any of the employees engaged by the firstnamed applicant to perform work as a "motor vehicle salesman" or as a "automotive parts salesman (experienced)" are eligible to be members of the State union and there is no evidence at all as to their eligibility to be members of any other respondent

There is a further difficulty in the path of the applicants in the form of the relief sought. We can readily appreciate that, if the general argument of the applicants were to be upheld on a contested hearing, it may well be appropriate for the Court to declare, in accordance with the form of relief granted in the Metal Trades Industry Association Case, supra, that the State award "is inconsistent with the (Federal Award) and is to that extent inconsistent with (the Act), and is to that extent invalid". But, no doubt for good reason, the applicants do not seek relief in that form. Instead, what is sought is a declaration of invalidity limited in its operation to certain

We do not think that it is appropriate to make a declaration of invalidity which is restricted to certain activities of a particular employer. As a matter of construction of the Federal award, s. 65 may render invalid the whole of the provisions of the State award or a particular part of those provisions in respect of the field covered by the Federal award. But, if the Court were to declare merely that the State award was invalid in respect of certain of the activities of the first applicant, such an order could give a misleading impression that, in the opinion of the Court, the State award was otherwise valid. Nor would it advance matters if the Court were to add a rider to some effect to the declaration made: any such rider would be

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, and we therefore express no view whatever on the operation, 1f any, of s. 65 in the present

case (see Lamb v Moss (supra) at p. 21). In our opinion,

the only order which should be made is that it be declared

that the Court in the exercise of its discretion ought not to

entertain the application made in paragraph 3 of the amended

application (see Australian Boot Trade Employees' Federation

I certify that this and the -ten()preceding pages are a true

copy of the Reasons for Judgment herein of the Honourable Mr. Justice Keely and the Honourable Mr. Justice Beaumont.