Hyytinen v Palmer & Anor [2020] QSC 240

The applicant here noted that decision made no reference to the principle that a declaration should not be made if there is no contradictor. As authorities for that principle, the applicant cited Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 and Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 596.

The rationale behind the principle is said to be "not merely to ensure that the Court will be provided with all materials but also that absent a contradictor there is no person to be bound by the relief sought" - per French J, as he then was, in IMF (Australia) Ltd v The Sons of Gwalia Limited [2004] FCA 1390; (2004) 211 ALR 231 at 244 [47].

Section 10(2) Civil Proceedings Act 2011 (Qld) provides, in reference to the Supreme Court only:

"The court may hear an application for a declaratory order only and may make a declaratory order without granting any relief as a result of making the order."

That section is in similarly broad terms to s 10 Equity Act 1901 (NSW). Of that section, Gibbs J noted in Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437-8:

"It is neither possible nor desirable to fetter the broad discretion given by s. 10 by laying rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarised by Lord Dunedin in Russian Commercial and Industrial Bank v The British Bank for Foreign Trade should, in general, be satisfied before the discretion is exercised in favour of making a declaration:

'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, someone presently existing who has a true interest to oppose the declaration sought.'"

In the above quoted words by Lord Dunedin, when speaking of the need for a contradictor, his Lordship appears to have been speaking of a person with sufficient interest to give the person standing to oppose, not necessarily a person who, in fact, chooses to oppose.

I am fortified in that view by the Federal Court's decision in Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378, where the Court held it had power to order a declaration when a party who has an interest to oppose the declaratory relief sought, nonetheless, decides not to oppose it. The Court observed the participation of a party with an interest to oppose the declaratory relief sought meant there was a proper contradictor. It reasoned, at 387:

"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 be granted as a matter of discretion."

That decision was referred to by McMurdo J, as he then was, in Re Queensland Police Credit Union Ltd [2013] QSC 273; (2013) 279 FLR 420. His Honour there concluded he had jurisdiction to make the declaration sought, despite no party other than the applicant appearing. ASIC had been served with the application but did not appear. It had a theoretical interest in opposing the application as the agency responsible for prosecuting breaches of provisions of a kind the applicant sought by the declaration to establish had not occurred. His Honour concluded at 424-5:

"Therefore ASIC has a 'true interest to oppose the declaration sought', because of its statutory role or roles in connection with a potential prosecution. The fact that ASIC has chosen to express no view about the merits of the application does not prevent it from being a proper contradictor."

The present case is not the occasion to revisit whether the existence of a contradictor is always a jurisdictional prerequisite for the making of a declaration, as distinct from an issue informing the discretion whether a declaration should be made (as to the latter, see Meagher, Gummow and Lehane's Equity: Doctrines & Remedies (LexisNexis, 5th ed, 2015) at 633 [19-235]). That is because a contradictor clearly does exist here, has notice of the application and, indeed, appears. That the contradictor, in the form of the respondent defendants, does not oppose the declarations, is no obstacle because the jurisdictional principle goes to the existence of a contradictor, not the position taken by the contradictor.

Of course, there will be cases where a contradictor's absence of opposition will cause a Court to take greater than usual care before exercising the discretion to make a declaration. This is not one of them. The case is a clear one. I should make the declarations sought.

I order, as per the amended draft order signed by me and placed with the papers.