REASONING
25 FCR, O 20 r 3, provides that no proceeding by way of demurrer shall be brought in any proceeding. However, O 20 r 3 allows a party challenging the adequacy of the whole or part of any pleading to apply, inter alia, under O 20 r 2(1)(a) for an order dismissing the proceedings or under O 11 r 16 for an order striking out the pleading, as disclosing no reasonable cause of action.
26 FCR, O 11 r 9, allows a party by its pleading to raise any point of law. This rule permits a pleading to identify a point of law in lieu of a demurrer: Butterworths Federal Court Practice, at [39,845.1]. It is not in doubt that a order for the determination of separate questions may be an appropriate means of enabling the Court to decide a discrete issue of law that may resolve the dispute between the parties.
27 The High Court retains the demurrer: High Court Rules 2004, r 27.07. This rule permits a party to demur to a pleading of the opposite party or to so much of that pleading as sets up a distinct cause of action: r 27.07.1. The demurrer must state the ground or grounds in law for the demurrer: r 27.07.3. If the claim or defence of a party depends, or may depend, upon the construction of a document referred to in the pleading, the demurring party may set out in its demurrer the part or parts of the document it alleges are material: r 27.07.5
28 A demurrer denies the legal sufficiency of the facts alleged in the pleading that are said to entitle the plaintiff or applicant to a legal remedy or to establish a defence to a pleaded cause of action: cf South Australia v Commonwealth (1962) 108 CLR 130, at 141-142 per Dixon CJ. A demurrer admits for the purpose of its disposition all allegations of fact made in the statement of claim or other opposing pleading: Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117, at 125, per Barwick CJ. A defendant or respondent who demurs to a statement of claim admits, for the purposes of the demurrer, the facts pleaded by the plaintiff, but alleges that those facts do not reveal a cause of action against him or her: Kathleen Investments, at 135, per Gibbs J. The only facts which are taken to be admitted for this purpose are those which are expressly or impliedly averred in the pleading itself and the Court cannot take as admitted a fact which is not averred but is merely an inference from facts which are averred in the pleading: Kathleen Investments, at 135. As Gibbs J observed in Kathleen Investments (at 135):
'[t]he virtue of proceeding by demurrer is that in an appropriate case it enables a quick decision to be given on a question of law when that will dispose of the whole action. Sometimes however, particularly when the pleadings are defective, the demurrer will not lead to any final decision but … will result "only in delay of the proceedings and increase of costs".'
29 The demurrer procedure has frequently been utilised to crystallise and present for decision the validity of legislation impugned on constitutional grounds: see for example, Hughes and Vale Pty Ltd v New South Wales (1952) 87 CLR 49, where the plaintiff demurred to a defence which invoked New South Wales legislation, on the ground that the relevant legislation contravened s 92 of the Constitution and was beyond the powers of the Parliament of New South Wales.
30 The demurrer procedure was used relatively recently in Levy v Victoria (1997) 189 CLR 579, as the mechanism for presenting for decision the question whether regulations made under Victorian legislation were invalid as infringing the implied constitutional freedom of communication. In that case, the plaintiff had been charged with entering a permitted hunting area during prohibited times contrary to the Victorian regulations. He instituted proceedings in the High Court against the State of Victoria, seeking declarations that the regulations were invalid and that the charges against him were accordingly unlawful.
31 The plaintiff's statement of claim pleaded in detail the purposes he had in entering the proclaimed area, including his intention to protest against the hunting laws. He alleged that the regulations were beyond the powers of the Victorian Parliament by reason of the implied constitutional freedom of communication, which rendered invalid any law unreasonably preventing him from pursuing his right to speak publicly or to protest about State laws. The State demurred to the statement of claim.
32 Only two members of the court specifically commented on the procedure that had been used to raise the constitutional issue. Brennan CJ observed at (598-599) that:
[a]lthough it is possible that the validity of a law with respect to a subject within legislative power could depend upon some factual matter touching the freedom of discussion of government or politics, questions of fact seldom have to be resolved. Only in rare instances would it be impossible to determine the validity of such a law on demurrer. In such a case, the constitutional facts could first be ascertained by the stating of a case, by resort to information publicly available or, possibly, by the tendering of evidence. But constitutional facts are not to be regarded for the purposes of a demurrer as though they are facts in issue in civil litigation between parties. In the latter case, the facts expressly or impliedly alleged in the pleading demurred to must be taken as established for the purposes of the demurrer. But facts which are relevant to the existence of, or restriction on, power to enact an impugned law stand in a different category'. (Footnotes omitted)
33 Kirby J noted (at 648) that the plaintiff had submitted that the demurrer was an inappropriate procedure, arguing that in a case involving an evaluative exercise of judgment as to whether the impugned law infringed the constitutionally protected freedom, evidence would need to be considered. Such evidence was said to be relevant, for example, to judging the appropriateness of the law or the proportionality of the inhibition on freedom of expression. His Honour said this (at 649):
'The jurisprudence on demurrers is covered with cobwebs. After the narrative form of pleading was adopted by Australian courts following the abolition of common law pleading it has been a subject but rarely considered by the courts. In South Australia v The Commonwealth [at 142], Dixon CJ explained, in relation to a demurrer in this Court, that it presented certain difficulties because of the adoption by the Court of the narrative and not the common law system of pleading…
[I]n the manner in which these proceedings have been conducted, the statement of claim pleaded and the demurrer successively amended, I believe that the Court should respond to the substance of the issue tendered. In determining constitutional challenges the procedure of demurrer has been found useful to this Court since its earliest days. It is now too late to revive the rigidities of demurrer practice at common law.' (Footnotes omitted.)
34 Within this framework, the remarks made in the joint judgment of six members of the Court in Bass v Permanent Trustee are relevant. Their Honours pointed out (at [45]) that a central purpose of a judicial determination is to make a conclusive or final decision 'based on a concrete and established or agreed situation which aims to quell a controversy'. It is for this reason that courts decline to provide answers to hypothetical questions or to give advisory opinions. Such answers or opinions are not based on concrete situations and do not amount to a binding decision raising a res judicata between the parties (at [48]).
35 After noting that the answers given and the declarations made by the Full Court in Bass v Permanent Trustee had been 'purely hypothetical', their Honours said (at [50)]):
'The procedure adopted in the present case is far removed from that concerned with demurrers, a form of procedure which assumes the truth of a particular set of facts. If the "facts" which are the basis of an answer to a legal question are identified, that answer will have utility for the parties provided that no other evidence could add to or qualify those "facts". In such a case, the parties' rights will be determined when the evidence finally determines the existence or non-existence of those "facts". Because that is so, demurrers have been much used in determining the rights of parties to litigation. The demurrer proceeds upon identified facts and enables a court to declare whether or not they provide a cause of action or a defence or reply to another party's pleading. Unlike the present case, however, a demurrer assumes that the pleadings exhaust the universe of relevant factual material. The utility of demurrers is, however, heavily dependent on the pleadings containing all the relevant facts. When the parties are uncertain whether further investigation will reveal further factual material, the utility of the demurrer is diminished'.
36 Their Honours observed that preliminary questions may be questions of law, questions of mixed law and fact or question of fact. They identified particular problems that can arise where the preliminary question is one of mixed fact and law. They noted (at [52]), however, that:
'[some] questions of law can be decided without reference to the facts. Others may proceed by reference to assumed facts, as on demurrer or some other challenge to the pleadings. In those cases, the judicial process is brought to bear to give a final answer on the question of law involved. Findings of fact are made later, if that is necessary'.
37 The present case does not involve a demurrer, since that procedure is not available in this Court. The respondents seek, in effect, to achieve the same result as a demurrer by means of orders for the determination of separate questions pursuant to FCR O 29 r 2. It is important to bear in mind, however, that what I have to assess is whether I should make the orders sought, not whether the respondents could have demurred to the applicants' statement of claim had the proceedings been commenced in or removed to the High Court. Nonetheless, the practice relating to demurrers in the High Court provides some assistance by way of analogy in determining whether the proposed separate questions should be addressed.
38 In my view, the most important issue is whether the separate questions formulated by the respondents can be answered by reference to an assumed set of facts (derived from the applicant's pleadings) and whether these will constitute the relevant universe of facts for the purposes of deciding a question of law. If so, and if the answers to the separate questions might resolve the dispute between the parties thereby potentially saving considerable time and costs, it is likely to be appropriate to make the orders sought.
39 The respondents wish to argue at the hearing of the separate questions that the facts pleaded by the applicant are incapable of establishing conduct that gives rise to a contravention of s 45(2) of the TP Act. They say, as I follow their argument, that making an objection to a proposed planning law or commencing proceedings in a court or tribunal to restrain unlawful conduct, cannot, as a matter of law, constitute a contravention of s 45(2) of the TP Act. They are prepared to put this argument on the basis that if the Court decides, contrary to their contentions, that the separate questions cannot be answered without reference to additional facts the Court will be unable to give the answers for which they contend. Thus if the questions cannot be answered without further evidence being adduced, such as the precise terms of the letters referred to in the Statement of Claim or the circumstances surrounding the making of the objections, the respondents will not obtain the answers they seek and the case will proceed in the usual way.
40 It might be thought that the respondents have taken on themselves a heavy burden that may be difficult to discharge. Be that as it may, I think that if the separate questions are approached in the manner that has been explained the orders sought by the respondents:
· will enable an issue of law to be decided on the basis of facts pleaded by the applicant;
· no other facts will be required to determine whether the questions should be answered in the manner suggested by the respondents;
· if the respondents' foreshadowed contentions are correct, answering the questions is likely to produce a very considerable saving of time and cost in the proceedings, even allowing for the possibility of an interlocutory appeal;
· if the questions are not answered as the respondents suggest, the parties will not have been put to disproportionate expense, having regard to the complexity of the factual and legal issues that will need to be resolved at a final hearing.
41 I should add two observations. First, I think that the separate questions, instead of referring to 'any part of' the Statement of Claim should refer to 'any cause of action pleaded in' the Statement of Claim. This amendment will overcome a possible ambiguity in the questions framed by the respondents.
42 Secondly, I do not think that making the orders sought by the respondents will give them an unfair forensic advantage. It is no doubt open to them to apply to strike out the applicant's statement of claim. But that is not the only way in which an issue of law can be presented for determination by the Court. Moreover, the argument the respondents intend to put on the hearing of the separate questions ensures that if additional facts are required to answer those questions, the respondents will not obtain the answers they seek.
43 Subject to the amendment to the questions referred in [41] above, I propose to seek the orders sought by the respondents. The costs of the motion should be costs in the cause.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.