Carbery v Fire Rescue Victoria [2025] FCA 948

1. Davies Lawyers threatened the commencement of proceedings in this Court unless the respondent withdrew "it's reportable fringe benefit calculations". Lander & Rogers did not, in a reply of 3 March 2025, accept those contentions, asserted that the legal analysis of the Union was flawed and concluded by stating: "any proceedings of the kind you have foreshadowed will be premature, unwarranted and therefore unreasonable". This proceeding was commenced on 4 March 2025. There was further correspondence between the lawyers. Amongst other things, Lander & Rogers asserted that certain contentions pleaded in the statement of claim "which are critical to [the applicant's] claim, are necessarily wrong and he has no reasonable prospect of successfully prosecuting his claim". It was further stated that the relief sought is inutile in that it will not bind the Department of Social Services, which administers the family tax benefit and child support schemes: letter of 7 March 2025. Davies Lawyers did not accept those contentions. In further correspondence from Lander & Rogers of 21 March 2025, one sees the following:

The interests of [the applicant] and [the respondent] are aligned on the question of whether the relevant reimbursements were taxable fringe benefits (due to the questions' impacts on [the applicant's] child support liability/family tax benefit entitlement and on [the respondent's] liability to pay FBT). It is in both parties' interests that those amounts are not taxable. [The respondent] would, of course, welcome a collaborative approach with [the applicant] and the [Union] to resolving that question.

We would add that the ATO (and the Department) may well have regard to what both the employer and employee report as to the reportable fringe benefits amount. However, ultimately they must make an assessment of the reportable fringe benefits amount based on law rather than what either the employer or employee reported. Similarly, if a Court or Tribunal is required to determine an employee's reportable fringe benefits amount for a given income year, then the amount reported (by both the employer and employee) has no legal significance. The determination is made as a matter of law by applying the relevant statutory criteria, and those criteria did not take into consideration what an employer or employee reported to the ATO).

1. By this time, the position of each party had become entrenched. Davies Lawyers responded, by rejecting those contentions on 26 March 2025. There was even more correspondence thereafter, which is unnecessary to set out.
2. It should be noted that the respondent's arguments are not confined to the proposition that it's interests and those of the applicant are aligned. As is argued by the respondent in the correspondence set out above, the submissions variously contend that the declaratory relief will not have practical utility for the parties because it will not bind the Department which is responsible for administering the child support and family tax benefit legislation, or the ATO. For unexplained reasons, the applicant has chosen not to seek review of relevant determinations made by the Department about the applicant's entitlements pursuant to the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (Pt 5 Div 1), or to file an objection concerning his child support assessments pursuant to Pt VII of the Child Support (Registration And Collection) Act 1988 (Cth).
3. The respondent submits that the appropriate course is for the applicant to "avail himself" of the statutory review and objection procedures. If dissatisfied with the Department's decision he can seek review in the Administrative Review Tribunal and, ultimately, appeal to this Court. The submission continues that at each stage of the process the applicant can make the arguments in support of his position that he currently intends to make in this proceeding.
4. Relevantly, s 111 of the Family Assistance Administration Act sets out the process for an application to be made to the Tribunal for review in respect of the Family Tax Benefit. In regard to the child support assessments, s 89 of the Registration and Collection Act sets out the process for an application to be made to the Tribunal for review. A party to a proceeding in the Tribunal may then appeal to this Court, on a question law, from the decision of the Tribunal in the proceeding: s 172 of the Administrative Review Tribunal Act 2024 (Cth).
5. It is the respondent's submission that the availability of those procedures is itself "a clear and sufficient basis for this Court to deny the declaratory relief sought". The respondent relies on Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146, where a taxpayer sought a declaration that an amended assessment of income tax was invalid. The High Court refused that relief because there was another, more appropriate avenue of review available, being the objection procedure in Pt IVC of the Taxation Administration Act 1953 (Cth): at [10], [48] (Gummow, Hayne, Heydon and Crennan JJ); [91] - [92], [157], [168] (Kirby J). In the respondent's submission, the procedures for challenging family tax benefit entitlements and child support liability are similar to that established by Pt IVC of the Taxation Administration Act. It is important to note that relief in that case was refused on discretionary and not jurisdictional grounds.
6. Accordingly, the respondent submits there is no "sufficient" or "real" interest in the applicant obtaining the declaration sought: Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 276 CLR 519 at [32]. Even if this Court grants the declaratory relief sought, the applicant will still need to pursue the statutory avenues of review, and so, where the Department is not bound by this proceeding, the review process will amount to a re-litigation of the same issues.
7. In oral submissions, Mr Garratt accepted that the outcome of this case will not bind the Department or the ATO, but submits that a declaration between the applicant and respondent would not be inutile because it would be of "great persuasive power".
8. For completeness, the respondent also submits that the applicant does not have a sufficient or real interest because he has not identified a legally enforceable right that he holds against the respondent and nor has he shown that this is a case of exceptional circumstances which might otherwise entitle him to the declaratory relief that he seeks.
9. In my view, the dispositive issue is whether looking at the whole of the controversy between the parties, that is not confined to the pleaded case and the submissions now advanced, the applicant has identified a justiciable or concrete controversy to be quelled by the exercise of judicial power.
10. Section 21 of the FCA Act grants power to make binding declarations of right, whether or not any consequential relief is or could be claimed. An applicant for declaratory relief need not demonstrate an underlying cause of action: Hobart at [32], Kiefel CJ, Keane and Gordon JJ. But this provision is concerned with power, not jurisdiction. The anterior and first question is always whether there is a matter: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 278 CLR 512 at [30], Kiefel CJ, Gordon and Steward JJ.
11. In Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437 - 438, Gibbs J, when speaking of declaratory relief, approved what Lord Dunedin had stated in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448:

The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought.

1. His Honour prefaced that reference by observing that "it is neither possible nor desirable to fetter the broad discretion given by [s 10 of the Equity Act 1901 (NSW)] by laying down rules as to the manner of its exercise". That was not a case in federal jurisdiction.
2. In Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 414, Lockhart J (with whom Spender and Cooper JJ agreed), set out a summary of what is necessary to obtain a grant of declaratory relief, which has subsequently been widely referred to and endorsed. His Honour observed:

For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:

• The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties.
• The applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen': University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 per Gibbs J. at 10; or if the Court's declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority (NSW) [1977] 52 ALJR 180 per Mason J. at 180 and per Aickin J. at 189.
• The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Limited [1972] HCA 61; (1972) 127 CLR 421 per Gibbs J. at 437; and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438 per Lord Dunedin at 448.
• Generally there must be a proper contradictor: Russian Commercial and Industrial Bank at 448; and Ainsworth per Brennan J. at 596.

1. Aussie Airlines was a case in federal jurisdiction where the applicant sought declaratory relief that it was a new entrant to the airline industry at a time when the Commonwealth implemented the Two Airline Policy by, inter alia, provisions in long-term leases of Commonwealth airports.
2. In Hobart, that passage was approved at [36] by Kiefel CJ, Keane and Gordon JJ, though earlier at [32] their Honours expressed the need for a contradictor as mandatory. In Hobart, two local councils sought declaratory relief as to the meaning of lease agreements between the Commonwealth and airport lessees concerning the obligation to make payment of rate equivalents, where local rates were not otherwise payable due to Commonwealth ownership of the airport lands. A single judge of this Court dismissed the proceedings on the basis that the councils did not have standing because they were not parties to the leases: Clarence City Council v The Commonwealth [2019] FCA 1568. The Full Court allowed the appeals: Clarence City Council v The Commonwealth [2020] FCAFC 134; (2020) 280 FCR 265. The High Court, by majority, dismissed the appeals. In the Full Court and in the High Court the argument turned not so much on whether the councils as non-parties could not have standing through the prism of privity, but rather whether there was a matter within federal jurisdiction.
3. The High Court held that the councils did have standing because they had a sufficient or real interest in determining the meaning of the lease clause in issue. It did not matter that the parties to the leases were not in dispute about the meaning. The question of justiciable controversy was answered by "asking if the applicable principles permit the councils to seek declaratory relief in relation to the dispute": [30]. In answering that question, Kiefel CJ, Keane and Gordon JJ at [32] stated:

It is for those reasons that the particular question in these appeals is whether the Councils have standing. What is required to establish "standing" varies depending on the relief sought. Here, the Councils seek declaratory relief. The breadth of the jurisdiction to grant declaratory relief was considered by Gibbs J in Forster v Jododex Aust Pty Ltd. The question must be real, not theoretical. There must be a proper contradictor - someone presently existing who has a true interest to oppose the declaration sought. And the applicant must have a "sufficient" or "real" interest in obtaining the relief]. There is no requirement that an applicant for declaratory relief have a cause of action in order to obtain it. Those principles are not exhaustive. These appeals turn on the nature and adequacy of the Councils' interest in the resolution of the dispute.

1. At [43] further emphasis is placed on the requirement that there be a contradictor, noting that the lessees in that case "each have a real interest in opposing the declaratory relief sought", specifically by reference to Gibbs J in Forster.
2. Gageler and Gleeson JJ in separate reasons also concluded that the matter requirement was satisfied in that the councils had a sufficient material interest in seeking declaratory relief: [74]. At [76] their Honours emphasised the controversy between the councils, on the one hand, and the Commonwealth and the lessees, on the other "about the content of the contractual obligation owed" by the lessees to the Commonwealth to make the equivalent rate payments.
3. The requirement that there must be a contradictor with an interest in opposing declaratory relief for there to be a matter was also stated by Gummow J as a member of the Full Court in CTC Resources NL v Commissioner of Taxation [1994] FCA 947; (1994) 48 FCR 397. At issue were appeals by the taxpayer against the disallowance of objections to private rulings in circumstances where the Commissioner contended that the appellant was not a person dissatisfied for the purposes of s 14ZZ of the Taxation Administration Act. The reason being that the period covered by one of the rulings had passed without the taxpayer implementing the proposal. The Court concluded that appeal was incompetent as the circumstances of that ruling had not occurred and might not occur. Gummow J at 406 - 407 drew attention to the difference between the position at common law, where declaratory relief may be refused on discretionary grounds if there is no contradictor, and the matter requirement for such relief in federal jurisdiction. His Honour observed:

The rigour of the rule preventing conferral of federal jurisdiction to give advisory opinions has been mitigated by the broad scope of the declaratory judgment, but this still requires a controversy and a contradictor. Chapter III is concerned with the resolution of justiciable controversies.

1. Recently, the New South Wales Court of Appeal (White JA, Stern JA and Griffiths AJA), reasoned that the "rules" formulated by Gibbs J in Forster "are not confined to discretion and bear upon jurisdiction": Zurich Australian Insurance Ltd v CIMIC Group Ltd [2024] NSWCA 229; (2024) 115 NSWLR 297 at [560], which in their view is authoritatively supported by Hobart at [32].
2. In AZC20, the Court held by majority that the Full Court of this Court did not have jurisdiction to make orders in an appeal when the subject matter of the preceding had become moot by the exercise of Ministerial determinative power. At [32], Kiefel CJ, Gordon and Steward JJ emphasised the justiciable controversy element as follows:

As to the second element, as was most recently affirmed in Unions NSW v New South Wales ("Unions [No 3]"), "[e]xceptional categories aside, there can be no 'matter' within the meaning of Ch III of the Constitution unless 'there is some immediate right, duty or liability to be established by the determination of the Court' in the administration of a law and unless the determination can result in the Court granting relief which both quells a controversy between parties and is available at the suit of the party seeking that relief". The requirement to identify some "immediate right, duty or liability" to be established by the determination of the court "reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy". That requirement applies in both original and appellate jurisdiction.

1. At [52], their Honours noted that determination of whether there is a matter is not limited to the legal proceeding, but extends to "all claims made within the scope of the controversy". Writing separately, Edelman J identified three aspects of a matter at [68]:

The first element of a matter - a justiciable controversy - is commonly present in the exercise of judicial power. But the focus of a matter is narrower than the concept of judicial power. The element of a matter usually requiring a justiciable controversy has three aspects. First, a justiciable controversy must concern legal rights. Secondly, it must generally involve a dispute about those legal rights that can be resolved in a judicial manner by a court. Thirdly, the parties before the court must have standing to agitate that dispute. Each of these aspects is different although they are cumulative. The failure to recognise all aspects of a justiciable controversy can lead only to confusion and the dilution of its requirements.

1. At [72] his Honour emphasised that there must be "a real dispute about" rights, duties or liabilities that "must concern some concrete, or real-world, application of rights, duties or liabilities about which opposing parties disagree". It is not sufficient for the controversy to be historic: it must be live, which his Honour categorised at [73] by reference to his reasons in Unions NSW v New South Wales [2023] HCA 4; (2023) 277 CLR 627 at [52] as follows:

[T]he position in the United States and Australia in this respect was the same: "[t]he requisite personal interest that must exist at the commencement of the litigation [which is the foundation for standing] must continue throughout its existence".

1. That brings me to authority in this Court that in civil penalty proceedings declarations of contravention may be made by consent where the respondent admits the contravention. The principal case is the decision of the Full Court in Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 (Greenwood, Logan and Yates JJ). The Court allowed an appeal from the primary judge who declined to make declarations of contravention in conjunction with the imposition of civil penalties. The primary judge considered himself bound by an earlier decision of the Full Court to the effect that where a contravener consents to the orders, there is no proper contradictor and therefore no matter.
2. The Court relied on two earlier decisions, commencing with Oil Basins Ltd v Commonwealth [1993] HCA 63; (1993) 178 CLR 643, Dawson J sitting in original jurisdiction. Proceedings were instituted for declaratory relief as to whether a party to a royalty agreement was liable to pay the petroleum resource rent tax. The Commissioner had not issued an assessment prior to commencement of the proceeding. The Commissioner and the Commonwealth as the named defendants applied for the proceeding to be struck out on the basis that the pleadings did not identify any act, error or omission on the part of the Commissioner that the plaintiff sought to impugn. Dawson J refused to strike out the proceeding. At 649 - 650, his Honour stated:

The question raised by the plaintiff is neither abstract nor hypothetical and the answer to that question will clearly produce consequences for the parties. I would, for my own part, doubt whether the failure on the part of the Commissioner to indicate whether or not he disputes the plaintiff's claim could preclude the plaintiff from seeking against him the relief which it does. The most that could be urged is that there is no proper contradictor, but I doubt whether that is so when the Commissioner's participation in the action is likely to force him to abandon his present stand of neutrality. Even if he were to maintain that stand, I doubt whether that would prevent him from being a proper contradictor. He clearly has a true interest in the plaintiff's claim and, if he were to choose not to oppose it and to abide by any order which the court might make, that might perhaps amount to no more than performance of his role as a contradictor in a particular manner.

But there is no need in this case to reach a conclusion whether the Commissioner is a proper contradictor because the producers obviously have a true interest in opposing the declarations sought. There is no requirement that all defendants in an action claiming the declaration must oppose the plaintiff.

I can see no good reason why, in the absence of any assessment or, at all events, any immediate prospect of one being made, the Court should be precluded from determining the liability to tax of a person in proceedings for a declaration if there is a real question.

1. The second is the decision of French J in IMF Australia Ltd v Sons of Gwalia Ltd (administrator appointed) [2004] FCA 1390; (2004) 211 ALR 231 at [47]:

The requirement of a proper contradictor in a declaratory context is not merely to ensure that the court will be provided with all materials but also arises because absent a contradictor there is no person to be bound by the relief sought: Acs v Anderson [1975] 1 NSWLR 212 at 215 per Hutley JA citing PW Young, Declaratory Orders, 1st ed, Butterworths, Sydney, 1975, p 210. A proper contradictor, for jurisdictional purposes, in my opinion cannot be confined to the class of party who comes to court ready to oppose the relief sought. There may be a case in which a party, whether a private person or body or a statutory regulator, expresses opposition to, and an intention to oppose, a proposed course of action by another party on the basis that it is in breach of some contractual or statutory prohibition. The party opposing the conduct may however decide for any one or more of a variety of reasons not to contest declaratory proceedings about the lawfulness of the proposed conduct_._ So the declaration may be made by consent or may be uncontested. This does not mean that the court lacks jurisdiction or power to grant the declaration in such a case. The proceedings will have resolved a pre-existing controversy. A more difficult question arises where a party with an interest in opposing a particular course of conduct refuses to say whether it will take any action in respect of that conduct. Such a party may be said to be one which, notwithstanding its silence, has an interest in opposing the proposed conduct.

1. Returning to MSY Technology, at [20] the Court noted the distinction between a condition precedent to the existence of a matter, an "initial controversy with respect to a right, duty, liability or obligation as between an applicant and a respondent with an interest in the same" and resolution of the controversy after the proceeding is commenced. There is no "want of jurisdiction if, after the institution of proceedings, what was once a controversy is resolved." In distinguishing the earlier Full Court decision in BMI Ltd v Federated Clerks' Union of Australia (NSW Branch) (1983) 6 IR 416 the Court reasoned at [30]:

Subject to one qualification, we agree with the observation made by the primary judge. The qualification is that we would not, with respect, describe the joint judgment of Keely and Beaumont JJ in B.M.I. as "analytically opaque". Nonetheless, to the extent that the statement in the joint judgment of Keely and Beaumont JJ suggests that the absence of opposition by an interested party to the declaratory relief sought means that there is no proper contradictor and that this disentitles an applicant to a grant of declaratory relief, it evidences a misunderstanding of the explanation given by Lord Dunedin in his speech in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd, adopted by Gibbs J in Forster v Jododex. The correct position is as opined by Dawson J in Oil Basins and by French J in IMF (Australia) Ltd v Sons Of Gwalia in the passages quoted above. In this case, the MSY parties had an interest to oppose the declaratory relief sought. That was sufficient to make them a proper contradictor. There was no want of power to grant declaratory relief. Rather, the question was whether, in light of the events which had transpired, which relevantly included a lack of any continued opposition to the declaratory relief sought, that relief ought still to be granted as a matter of discretion. B.M.I. should be understood as a case where, because the question of the invalidity had become academic, that discretion had been exercised so as to refuse the declaratory relief sought. As the passage from their Honours' joint judgment reveals, that was an additional basis upon which Keely and Beaumont JJ refused the application for declaratory relief.

1. In the present case, the respondent's position is with respect opaque. In written submissions, it emphasised that it interests aligned with those of the applicant with the consequence that if the proceeding continues the trial "it will effectively be ex parte". When I questioned what was meant by that in oral submissions, I did not receive a clear answer. The exchange was:

HIS HONOUR: So, when I read in your submissions that - I think the phrase is effectively be conducted ex parte, what do you mean by effectively ex parte?

MR DE WIJN: Well, we're not going to oppose the relief sought, your Honour.

HIS HONOUR: Are you going to be here at all?

MR DE WIJN: We might not be. We may well, if this proceeds - - -

HIS HONOUR: So, why not just file a notice of submission?

MR DE WIJN: Well, we did consider that, your Honour. It did seem proper to point out to your Honour the problem with what we say is a problem with jurisdiction, and - - -

1. As I have noted, when considering whether there is a justiciable controversy, the Court examines the entire history of the relevant dealings between the parties. What is self-evidently clear from the correspondence in evidence (highlighted in the extracts above) is that prior to commencement of the proceeding there was a clearly articulated controversy as to whether the respondent had correctly calculated the applicant's reportable fringe benefits for the 2024 financial year and, somewhat obviously, whether the method of calculation thus far applied by the respondent, if carried forward to future years, is correct.
2. That was then a significant disagreement. In my view the fact that the respondent now contends that its interests align with those of the applicant, or that it may not appear at the trial to actively oppose the applicant's case, does not result in extinguishment of the justiciable controversy between the parties. Whilst in Hobart Kiefel CJ, Keane and Gordon JJ at [32] stated that there "must be a proper contradictor - someone presently existing who has a true interest to oppose the declarations sought", that case was not concerned with the issue addressed in Oil Basins, IMF Australia or MSY Technology. It was not relevant to examine that issue in Hobart as the lessees and the Commonwealth vigorously opposed the declaratory relief sought by the councils. No absence of a contradictor, one with aligned interests or one with an equivocal or disinterested position arose. Their Honour's did not in my view state an immutable requirement for a contradictor in all cases where declaratory relief is sought in federal jurisdiction. Moreover, they were not concerned with the present type of case where a justiciable controversy is clearly discernible from the pre-proceedings conduct of the parties but where, upon commencement of the proceeding, the respondent forms the view that its interests are aligned with those of the applicant and in consequence seeks dismissal of the proceeding for want of jurisdiction. Each of Oil Basins, IMF Australia and MSY Technology explain why there does not cease to be a justiciable controversy in such circumstances.
3. For similar reasons, I do not consider that Edelman J in AZC20 at [72] - [73] was intending to, or did, state a principle that the live controversy must exist at the outset when a proceeding is commenced and continue throughout it in these types of case. It depends on identification of what was and remains the controversy. The applicant continues to maintain that the respondent's treatment of the FBT consequences of the reimbursement arrangement is erroneous. That remains the live controversy, even now the respondent contends that its ultimate interest in paying less tax aligns with the applicant's. That does not resolve whether the respondent correctly calculated and reported the FBT in issue. Nor does Futuris assist the respondent's arguments as that case was not concerned with any lack of jurisdiction to grant relief.
4. In my view there was a justiciable controversy at the commencement of the proceeding which has not subsequently evaporated. Interpolating from the reasons of Dawson J in Oil Basins, the respondent has a real interest in the applicant's claim, even where it considers the outcome favourable to it. Even if ultimately it does not play an active role beyond the interlocutory application, or states that it will abide by any declaration the Court is persuaded to make, that is "performance of its role as contradictor" because its arguments in support of the FBT it reported to the ATO are detailed in the correspondence in evidence. Likewise, as stated by French J in IMF Australia, that declaratory relief may be uncontested does not deprive this Court of jurisdiction because the applicant seeks to resolve the exposed controversy as to the correct method of calculation of FBT on scheme reimbursements.
5. Turning to the respondent's second point, I am unconvinced that the applicant lacks a real or sufficient interest in the declaratory relief because it will not bind the Department or the ATO and is therefore inutile. If granted, a declaration to the effect that the respondent misreported reportable fringe benefits that he derived in the 2024 financial year, and that in consequence that report must be (by a mechanism yet to be identified) withdrawn or retracted is likely to have, at least, practical consequences for him. Why is demonstrated by Edwards v Santos Ltd [2011] HCA 8; (2011) 242 CLR 421. In that case, certain native title claimants sought declaratory relief in this Court which, if granted, would have had the practical effect of advantaging them in negotiating a new indigenous land use agreement pursuant to the Native Title Act 1993 (Cth). The primary judge dismissed the proceeding on the basis that the claimants did not have standing to seek the relief and the Full Court refused leave to appeal. The High Court allowed the appeal, concluding that it was wrong for this Court to find that there was no justiciable controversy and therefore no matter. One issue concerned whether an Authority to Prospect (ATP) issued pursuant to the Petroleum Act 1923 (Qld) validly entitled the prospecting parties to apply for the grant of a lease. Heydon J gave the principal judgment. It was sufficient for the claimants to point to an improvement in their negotiating position. His Honour explained why at [37]:

The questions which the plaintiffs wished to agitate were not hypothetical. The first defendant's letter of 4 November 2005 had sufficiently indicated the intention of the petroleum defendants to make an application to the Minister under s 40 of the Petroleum Act and it had predicted that success would be "automatic". If so, the plaintiffs would be seriously disadvantaged because their negotiating position would be gravely weakened; if not, the plaintiffs would be correspondingly better off. If the plaintiffs obtained the first declaration sought, it would produce foreseeable consequences for the plaintiffs and the petroleum defendants by allowing them to continue the process of negotiating the new ILUA armed with knowledge of the correct legal position in relation to the ATP.

1. A fortiori, the applicant contends in this proceeding that declaratory relief as to the correct method of calculating and reporting the fringe benefits in issue will be of assistance to him in next dealing with the Department. Further, what must not be overlooked is that if the applicant succeeds, he will achieve a declaration to the effect that the respondent's reportable fringe benefits for the 2024 financial year were wrong and he will secure relief which determines the manner of future calculations. On either view, the applicant has a sufficient interest in the declaratory relief that is sought.
2. Finally, the respondent relied on other arguments to the effect that because there are other, more effective, avenues for the applicant to have his family tax benefits and child support payments reviewed, that there is no prospect that this Court will ultimately grant declaratory relief. It also argued that there is no mechanism for it to amend, withdraw or revoke the reportable fringe benefits amounts as advised to the ATO. Those arguments go to withholding relief on discretionary grounds. They are unconvincing reasons why this Court should conclude at this stage that the applicant has no reasonable prospect of success.
3. Nothing in these reasons should be construed as understating the importance of this Court receiving the benefit of contradictory arguments when the proceeding is heard. If none are ultimately forthcoming, that may of itself be a reason to refuse relief on discretionary grounds.
4. For these reasons, the interlocutory application is dismissed.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.