Higgins v ACT (No 3)
[2025] ACTSC 336
•1 August 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Higgins v ACT (No 3) |
Citation: | [2025] ACTSC 336 |
Hearing Date: | 20 February 2025 |
Decision Date: | 1 August 2025 |
Before: | McWilliam J |
Decision: | Declaratory relief granted in respect of the obligation of the Territory, its assigns and agents to give effect to a restrictive covenant confining the use of specified land to purposes of or ancillary to a golf course, and such other purposes as presently permitted by the Crown lease registered in Volume 2157 Folio 38, with such relief benefiting the plaintiff’s land. |
Catchwords: | EQUITY – DECLARATORY RELIEF – appropriate form of orders to give effect to equitable scheme of development – whether inappropriate to make declarations to quell potential future controversies |
Legislation Cited: | Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) ss 28, 29(1)(b) Chancery Procedure Act 1852 (UK) s 50 Civil Proceedings Act 2011 (Qld) s 10 Court Procedures Act 2004 (ACT) Court Procedures Rules 2006 (ACT) r 2900 Federal Court of Australia Act 1976 (Cth) s 21 Planning Act 2023 (ACT) Planning and Development Act 2007 (ACT) Rules of the Supreme Court 1883 (UK) ord 25 r 5 Supreme Court Act 1933 (ACT) ss 20, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 34B Supreme Court Act 1935 (SA) s 31 Supreme Court Act 1935 (WA) s 25(6) Supreme Court Act 1970 (NSW) s 75 Supreme Court Act 1979 (NT) s 18 Supreme Court Act 1986 (Vic) s 36 Supreme Court Act 1995 (Qld) (repealed) s 128 Supreme Court of Judicature Act 1873 (36 & 37 Vic c 66) (UK) Supreme Court Rules 1937 (ACT) |
Cases Cited: | Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Alati v Kruger (1955) 94 CLR 216 Australasian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119 Australian Consumer and Competition Commission v MSY Technology [2012] FCAFC 56; 201 FCR 378 Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 Burow v The Queen [2015] ACTCA 61 CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339 DJL v Central Authority [2000] HCA 17; 201 CLR 226 Edwards v Santos Limited [2011] HCA 8; 242 CLR 421 Egan v Willis [1998] HCA 71; 195 CLR 424 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Grassby v The Queen (1989) 168 CLR 1 Higgins v ACT (No 2) [2024] ACTSC 400 Higgins v Australian Capital Territory [2020] ACTCA 56 Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 276 CLR 51 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Kunstler v Kunstler [1969] 1 WLR 1506 Macguire v Makaronis (1997) 188 CLR 449 Martin v Taylor [2000] FCA 1002 Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 MIR Holdings Pty Ltd v Marina Square Retail Pty Ltd [2020] NSWCA 286 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 R v Forbes; Ex parte Bevan (1972) 127 CLR 1 Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 The Dairy Farmers’ Co-operative Milk Co Ltd v The Commonwealth (1946) 73 CLR 381 University of New South Wales v Moorhouse (1975) 133 CLR 1 Warramunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437 Zurich Australian Insurance Ltd v Cimic Group Ltd [2024] NSWCA 229; 115 NSWLR 297 |
Texts Cited: | J D Heydon, M J Leeming and P J Turner, Meagher, Gummow & Lehane’s: Equity, Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) |
Parties: | Judith Frances Higgins ( Plaintiff) Australian Capital Territory ( First Defendant) Gungahlin Golf Investments Pty Ltd (ACN 116 592 637) (Second Defendant) Australian Capital Territory Planning and Land Authority (Third Defendant) |
Representation: | Counsel C Erskine SC with R Arthur ( Plaintiff) V Thomas SC with J Bird ( First and Third Defendants) P Walker SC with J Larkings (Second Defendant) |
| Solicitors Badgery & Rafferty (Plaintiff) ACT Government Solicitor (First and Third Defendants) Gadens ( Second Defendant) | |
File Number: | SC 306 of 2019 |
McWILLIAM J:
1․The parties in this proceeding have litigated a dispute about whether there was an equitable scheme of development in respect of land located at Harcourt Hill Estate in Nicholls. The overarching issue was whether land presently used as a golf course and held on lease by the second defendant was part of a scheme of development which restricted its use to a golf course and purposes ancillary to a golf course. The court found that there was such a scheme: Higgins v ACT (No 2) [2024] ACTSC 400 (primary judgment) at [162]. Knowledge of that judgment is assumed in the reasons that follow.
2․The parties have now been given an opportunity to be heard on the final form of orders to be made to give effect to the reasons. It transpired at the hearing that, depending on the outcome of the relief ordered, the parties may wish to put on further evidence regarding the question of costs. Accordingly, this judgment only deals with the substantive question of relief.
The land over which relief is sought
3․Competing forms of declarations were sought in respect of the golf course land, which currently comprises the following blocks in the Division of Nicholls:
1.Block 2 Section 85;
2.Block 1 Section 163;
3.Block 1 Section 165;
4.Block 14 Section 86;
5.Block 11 Section 88;
6.Block 2 Section 157;
7.Block 5 Section 156;
8.Block 21 Section 89;
9.Block 22 Section 89;
10.Block 24 Section 89; and
11.Block 1 Section 164;
4․They will be described in these reasons collectively as the “golf course land”.
Plaintiff’s proposed relief
5․The plaintiff sought a declaration that:
(a)She and the Territory (the first defendant) were bound by the scheme of development that had been established, including that there was a restriction on the use of the golf course land;
(b)Such restriction was for the benefit of the land held on lease by the plaintiff; and
(c)The Territory was bound to ensure, on granting a lease of the golf course land and subsequently, that the golf course land may be and is used only in accordance with the golf course land use restriction.
6․During the hearing, the plaintiff confirmed that, if the court had power to grant it, she first sought a declaration of right; that is, a declaration that a scheme of development existed which included the golf course land. However, the plaintiff submitted that there was uncertainty as to whether the court could make such a declaration, because all owners of the leases affected had not been joined to the proceeding and the plaintiff did not bring the proceeding in a representative capacity.
First and third defendants’ position as to appropriate relief to give effect to the reasons
7․The first and third defendants (Government parties) submitted that:
(a)The form of the declaration should be framed as a negative covenant;
(b)The form of the declaration should also state that the Territory was the common vendor of the scheme;
(c)The wording of a scheme of development “binding” a party was problematic and was apt to create confusion as to the nature of the Territory’s obligations;
(d)A declaration that bound the Territory to ensure a certain state of affairs was not appropriate in circumstances where the Australian Capital Territory Planning and Land Authority (ACTPLA) was the entity authorised at the time to grant Crown leases and there was uncertainty about the extent of its obligations; and
(e)Any declaration about a scheme of development being “enforceable” against a party was equally problematic for the same reasons.
8․The Government parties did not seek any declaration that identified the future obligations of the Territory or the third defendant because they are uncertain what those obligations might be. However, in oral submissions, they urged the court to make declarations in relation to the specific obligations of both the first and third defendant.
9․The Government parties also raised the issue of whether any relief could be granted against the third defendant, ACTPLA, given that it no longer existed due to a change in the legislative regime, whereby the Planning and Development Act 2007 (ACT) (PD Act) was replaced by the Planning Act 2023 (ACT) (as to which see primary judgment at [41]).
10․The Territory expressly made no application to substitute the Territory Planning Authority (TPA) as the new entity. However, in oral argument the Territory ultimately accepted that if the court included the third defendant in any declaratory relief, then it would follow that an order should be made substituting the TPA as the third defendant.
Second defendant’s position as to the appropriate relief to give effect to the reasons
11․The second defendant, Gungahlin Golf Investments Pty Ltd (GGI) submitted that it was appropriate to make a declaration that a scheme of development existed, which included the land now identified as the golf course land. It sought that the court further declare that the golf course land may not be used for a purpose other than as a golf course or purposes which are ancillary to the golf course and such other purposes as are presently permitted by the Crown lease over the golf course land.
12․It submitted further relief was appropriate, and sought that the court declare that the scheme of development:
(a)Is not enforceable against the second defendant and its successors in title in respect of the golf course land; and
(b)Is enforceable against the Territory and the third defendant in respect of any part of the golf course land that is returned to the Territory in the future; but
(c)Is not enforceable against the second defendant or its successors in title in respect of the golf course land, including but not limited to:
(i)Any application for development;
(ii)Any application for any variation to the Crown lease;
(iii)Any application for the surrender and regrant of any part of the golf course land to the second defendant or any related entity to it or by any successor in title;
(iv)Any subdivision of any part of the golf course land;
(v)The conduct of any development of the golf course land; and
(vi)Any sale of any part of the golf course land following any subdivision or development; and
(d)Is not enforceable against the Territory, third defendant or any Territory authority in the exercise of any statutory authority or with respect to any provision of the Crown lease of the golf course land, including the rezoning of the golf course land, in respect of anything done by the second defendant within the list specified in (c) above.
13․The second defendant otherwise sought an order that the Amended Originating Claim and Further Amended Statement of Claim be dismissed as against it.
Issues emerging from the disputed relief sought
14․Some of the relief sought by the parties in this proceeding raises questions about the boundaries of available discretionary relief in equitable proceedings in the Territory. While the plaintiff sought a number of remedies and orders at trial, following the primary judgment, the plaintiff has confined her relief purely to declarations without any enforceable orders consequent upon those declarations. That the court has power to grant such relief is not as straightforward a question as the parties assumed (Issue 1). There is also uncertainty about the extent of the declaration due to only one of the landowners affected by the scheme of development being a party to the proceedings (Issue 2).
15․The second defendant seeks declarations that extend to applications for development or variations to the Crown lease that have not yet been made. That gives rise to consideration as to whether declarations proposed by the second defendant resolve a present justiciable controversy or whether they merely seek an abstract opinion about a hypothetical scenario (Issue 3).
16․The Government parties do not wish any declaration in the form sought by the plaintiff to be expressly one that “binds” either of them because of uncertainty as to what the binding obligation is (Issue 4). They did not dispute that a declaration as to a state of legal affairs binds the parties to the proceedings to that legal position. The argument was directed more to the wording of the declaration proposed by the plaintiff, in binding the Territory to ensure a particular state of affairs when it did not control the terms of the Crown lease issued by the third defendant or any subsequent entity performing the Territory’s statutory land management function. It suffices at this point to just capture the essence of the issue and then address it through the crafting of the relief below.
The court’s power to grant declaratory relief
17․The issues arising require an understanding of what power the court is exercising and what principles guide the exercise of the court’s discretion in the exercise of such a power.
Legislative framework for the equitable jurisdiction of the Supreme Court
18․This proceeding is brought in equity. A traversal of the legislative provisions dealing with this court’s equitable jurisdiction demonstrates that the scope of available relief is referrable to that which existed at a certain point in time in England.
19․Section 25 of the Supreme Court Act 1933 (ACT) (Supreme Court Act) provides that in every civil cause or matter begun in the court, “law and equity shall be administered according to sections 26-34B”.
20․Section 26 of the Supreme Court Act provides:
26 Equities of plaintiff
In proceedings in the court, the plaintiff is entitled to equitable relief if, in pre-Judicature Act proceedings of the same type, the plaintiff would have been entitled to such relief.
21․Judicature Act is then defined in the Dictionary as the Supreme Court of Judicature Act 1873 (36 & 37 Vic c 66) (UK). This creates a statutory reference point in time for the determination of equitable remedies in the Territory in 2025.
22․Sections 27 and 29 of the Supreme Court Act deal with equities of the defendant and incidental equitable rights. Similarly, those rights are tied to relief that would have been available in pre-Judicature Act proceedings of the same type.
23․Section 28 has been repealed.
24․Section 30 deals with defences or stays of proceeding and is immaterial to the present dispute.
25․Section 31 provides that the “court shall give effect to all claims for relief arising under the common law or statute law of the Territory”. However, such claims are expressly “subject to any equitable rules applicable under this Act” which takes the relief back to only what was available prior to the commencement of the Judicature Act.
26․Section 32 provides:
32Final determination of matters
(1)In the exercise of its jurisdiction under this Act in relation to proceedings in the court, the court shall, so far as practicable, ensure that—
(a)all the matters in issue between the parties to the proceedings are finally determined; and
(b)all multiplicity of legal proceedings concerning those matters is avoided.
(2)For subsection (1), the court may grant legal or equitable relief absolutely or conditionally.
27․Pausing there, there is a difference between jurisdiction and power: see DJL v Central Authority [2000] HCA 17; 201 CLR 226 at 241; R v Forbes; Ex parte Bevan (1972) 127 CLR 1 (R v Forbes) at 7. Jurisdiction is about the court having the authority to decide the matter. The court then may have powers to give effect to its jurisdiction. Power may be express, implied incidentally (ancillary), or inherent. Significantly here, the jurisdiction that is being exercised in s 32 is “under this Act” and therefore (relevant to the relief in this case) governed by, and limited to, the relief available under the said Act, namely that available pursuant to s 26.
28․Section 33 provides:
33Law and equity
Subject to this Act, in any matter arising in the court, if there is a conflict between the rules of equity and the rules of law with reference to that matter, the rules of equity prevail.
29․Here again, the rules of equity prevail, and they are “subject to this Act”.
30․Section 34 provides for the power to give damages in addition to or in substitution for an injunction or specific performance. As seen from the relief sought, its application does not arise here.
31․Section 34B permits the court to grant (in essence) relief in the nature of the prerogative writs.
Scope of declaratory relief
32․I have commenced by examining the legislative source of power in the Territory because pre-Judicature Act, the power to grant a bare declaration of right was historically unknown to a court administering equity other than as prefatory to the making of another order capable of enforcement by execution: Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 276 CLR 519 at [61]. In other words, absent statutory intervention (discussed below), bare declaratory relief in equity was not something the plaintiff would have been entitled to in a proceeding of the same kind pre-Judicature Act. The legislative framework dealing with the equitable jurisdiction and power of the Supreme Court Act does not expressly empower the Supreme Court to grant the relief sought in this proceeding.
33․There are statements at High Court level that all superior courts of record may be taken to have inherent jurisdiction to grant bare declaratory relief: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (Ainsworth) at 581, which was later cited in CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339 at [13]. However, those cases were not dealing with statutorily created superior courts of record, nor with the statutory regime applying the specified rules of equity in the Territory, which runs contrary to the Territory having such inherent jurisdiction in this discrete respect.
34․Moreover, whether a superior court of record does have the inherent power to grant purely declaratory relief in equity was doubted in J D Heydon, M J Leeming and P J Turner, Meagher, Gummow & Lehane’s: Equity, Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) at [19-110], where the learned authors stated:
… at present it is doubtful that it is the law of Australia. The merits of making or declining to make that change in the law would need to be considered fully on an appropriate occasion before the first sentence of the quoted passage [in Ainsworth] could be considered accurate.
35․Although the plaintiff did not expressly rely on r 2900 of the Court Procedures Rules 2006 (ACT) as a source of power for bare declaratory relief, it is relevant as it provides:
2900 Declaratory order
(1)A proceeding is not open to objection on the ground that the only relief sought is a declaratory order.
(2)The court may make binding declarations of right, whether or not any consequential relief is claimed.
36․The history to r 2900 can be traced to the words of the post-Judicature Act court rules in England and ord 25 r 5 of the Rules of the Supreme Court 1883 (UK):
No action or proceeding shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed, or not.
37․That rule was itself based on s 50 (although the original format used the Roman numeral L) of the Act to amend the Practice and Course of Proceeding in the High Court of Chancery (also known as the Chancery Procedure Act 1852 (UK)), which was in the following terms (and has now been repealed):
L. No Suit in the said Court shall be open to Objection on the Ground that a merely declaratory Decree or Order is sought thereby, and it shall be lawful for the Court to make binding Declarations of Right without granting Consequential Relief.
38․It is helpful to understand the historical context, which was explained in Kaldas v Barbour [2017] NSWCA 275 at [189] (emphasis added):
In 1852 the position in England was altered by the passage of the Chancery Procedure Act 1852 (UK). Section 50 of that Act provided “No suit in the said Court [the High Court of Chancery] shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the Court to make binding declarations of rights without granting consequential relief”. However, the provision was construed narrowly and limited to circumstances where consequential relief could have been granted but was not sought: Rooke v Lord Kensington (1856) K. & J. 753 at 761–762. To remedy this difficulty, Order 25 r 5 of the Supreme Court Rules 1883 (UK) was introduced, which made it clear that declarations of right could be made whether consequential relief could be claimed or not. The insertion of the rule was described as an enlargement of the power to grant declaratory relief by Cozens-Hardy MR in Dyson v AG at 417; see also Ellis v Duke of Bedford [1899] 1 Ch 494 at 514–515; West v Lord Sackville [1903] 2 Ch 378 at 392–3.
39․The point to draw from this for the purposes of understanding the ACT position is that any pre-Judicature Act relief to which a party may have been “entitled” in terms of a bare declaration was at best of a more limited form created by statute. It is not clear whether the reference in s 26 of the Supreme Court Act to an entitlement was an entitlement under the rules of equity, or one that included a statutory entitlement to bare declaratory relief, but even then, such an entitlement had been read down in the manner explained in the words emphasised above.
40․In circumstances where the legislative framework dealing with equitable relief in the Supreme Court Act is inconsistent with the substance of r 2900, it is difficult to see how this stand-alone rule can provide the power without a concurrent statutory source.
41․In other jurisdictions, that issue does not arise because the power is expressly contained in the relevant statute itself, rather than in a subordinate regulation. See, for example, Supreme Court Act 1970 (NSW) s 75; Supreme Court Act 1979 (NT) s 18; Supreme Court Act 1935 (SA) s 31; Supreme Court Act 1986 (Vic) s 36; Supreme Court Act 1935 (WA) s 25(6); Civil Proceedings Act 2011 (Qld) s 10; and Federal Court of Australia Act 1976 (Cth) s 21. In that way, the legislative scheme accommodates both the preservation of the equitable rules and the subsequent statutory development of the power to grant purely declaratory relief in equity.
42․With regard to the said Queensland legislation dealing with civil proceedings, s 10 provides:
10 Declaratory order
(1)This section applies to the Supreme Court only.
(2)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.
43․I have drawn attention to this statute because of the history of the Court Procedures Rules in the ACT, which were modelled on a variety of sources, including the Queensland legislation: Block 27 Pty Ltd v Qursa Pty Ltd (No 2) [2024] ACTCA 25 per Mossop ACJ at [13]. Regrettably, neither the Supreme Court Act nor the Court Procedures Act 2004 (ACT) have a section equating to the above provision in the Queensland legislation.
44․The Court Procedures Rules instrument as notified, and republications of the Court Procedures Rules up until Republication No 28 in September 2011, include notes under the headings of each rule which indicate equivalent or comparable provisions in other legislation. These notes reveal that r 2900 was based on ord 29 r 5 of the Supreme Court Rules 1937 (ACT), s 25 of the Supreme Court Act 1970 (NSW) and s 128 of the Supreme Court Act 1995 (Qld) (which was replaced by the Civil Proceedings Act 2011 (Qld)), notwithstanding that the “comparable” provisions are in fact contained in statute rather than delegated legislation.
45․In the absence of any specific substantive statutory power (as opposed to a procedural rule), the court has such jurisdiction as is necessary to administer justice in the Territory: Supreme Court Act s 20. As such, it inherently possesses the full plenitude of judicial power: Grassby v The Queen (1989) 168 CLR 1 at 16 per Dawson J with whom Mason CJ, Brennan, Deane and Toohey JJ agreed, citing R v Forbes at 7 per Menzies J; see too John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476E per McHugh JA, with whom Glass JA agreed.
46․However, as the authorities also demonstrate (Burow v The Queen [2015] ACTCA 61 being an example), the fact that there is general jurisdiction under statute which facilitates the court having broad inherent power does not necessarily equate to unlimited inherent power. That proposition carries greater force where the very statute dealing with the jurisdiction of the Supreme Court also expressly defines the scope of the court’s power in terms of available remedies in equity.
47․Ultimately, given that no party disputed the existence of the court’s power to grant the relief now sought, and there has not been developed argument about the issue, I have proceeded (without deciding) on the assumption that r 2900 of the Court Procedures Rules combined with s 20 of the Supreme Court Act provides power to grant pure declaratory relief, leaving the difficult question of whether the underlying basis for that rule is grounded in the court’s statutory, inherent or implied incidental power – and whether it conflicts with the rules of equity as applied in the Territory, which expressly prevail – for another day. That is sufficient to deal with Issue 1.
Principles applying to the exercise of the discretion to grant declaratory relief
48․The other issues are informed by the application of a number of established principles underlying the exercise of the power to grant discretionary relief, some of which overlap. Acknowledging that general principles should not be elevated to rigid restraints on a discretionary decision of this nature, what follows are a number of general guiding principles that have significance for resolving the question of relief in this proceeding.
49․First, the grant of declaratory relief is discretionary, and the discretion is wide: University of New South Wales v Moorhouse (1975) 133 CLR 1 at 9 per Gibbs J. Although it is neither possible nor desirable to fetter the discretion to grant declaratory relief by laying down rules as to the manner of its exercise, the discretion is to be exercised judicially: Ainsworth at 581-582.
50․Second, declaratory reliefshould be directed to the determination of legal controversies concerning rights, liabilities and interests of a kind which are protected or enforced in the courts: Egan v Willis [1998] HCA 71; 195 CLR 424 at [5].
51․Third, there must be some utility in granting the declaration: Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 (Neeta) at 307.
52․Fourth, the court must be satisfied that the making of the declarations sought is appropriate, even where parties have jointly proposed the relief. Because a declaration is a judicial act, it ought not to be made merely on admissions of counsel or by consent, but only if the court is satisfied by evidence: BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 at 412. Whether it will be appropriate to grant such relief depends upon the requirements of justice in the particular case: John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 470.
53․Consistent with those principles and applying Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 (Forster) at 437-438, declaratory relief may thus be refused where:
(a)The applicant does not have a real interest in the issue;
(b)The issue is not real but hypothetical (see also Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448);
(c)The relief would fail to resolve the issues between the parties; or
(d)There is no proper contradictor.
54․A proper contradictor may be secured by joining a person who has an interest to oppose the grant of declaratory relief, whether or not, ultimately, that party chooses to actually oppose the relief sought: Australian Consumer and Competition Commission v MSY Technology [2012] FCAFC 56; 201 FCR 378 at [14]-[16].
55․As to the question of what constitutes a “real” issue as opposed to theoretical or hypothetical issues, in Martin v Taylor [2000] FCA 1002, Einfeld and Kenny JJ (with whom Miles J, as his Honour then was, agreed) considered what that meant at [27]:
… A case is not "real", for this purpose, when the issue to be determined is divorced from the facts to which it relates. A general declaration "in air", unrelated to specific facts, will not necessarily resolve the dispute between the parties. If the facts turn out to be different from the assumed factual basis of the declaration, then the declaration will resolve nothing: cf Zamir and Woolf, The Declaratory Judgment (2nd ed, 1993) p 132.
56․Further, it is inappropriate to use declaratory relief so as to create an issue estoppel for future proceedings where there is potential for the parties to dispute the extent of the issue estoppel: Neeta at 307; see also Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 32-33; and Zurich Australian Insurance Ltd v Cimic Group Ltd [2024] NSWCA 229; 115 NSWLR 297 at [579]-[581] and [586].
57․In short, the declaration must deal with the matter in controversy between the parties within the limits of the proceeding, as distinct from a matter of future controversy. However, the jurisdiction does include the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law: Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 at [37]. Such a declaration will not be hypothetical in the relevant sense: Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [47]. This principle has consequences for the scope of any declaration made in this proceeding.
Form of declaration
58․Where the court considers that equitable relief is justified, it should mould a remedy to achieve practical justice between the parties and in accordance with the exigencies of the particular case: Alati v Kruger (1955) 94 CLR 216 at 223-224; and Macguire v Makaronis (1997) 188 CLR 449 at 496.
59․Declarations should be formulated in a manner such that, so far as possible, all matters in controversy between the parties are finally determined: Neeta at 307.
The effect of a declaration – what does it do and who does it affect?
60․A declaration pronounces the existence or non-existence of a legal state of affairs. As will be apparent from the words of r 2900, its effect is final and binding on the parties as to their rights, but it is not an order with a coercive element, enforceable by the courts.
61․In Warramunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437 (Warramunda) the Full Federal Court said at [8]:
… The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. …
62․That is consistent with Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334, where it was stated (at [49]) that the facts that determine the legal issue involved should be stated or otherwise identified with precision. However, the declaration should not be used to merely record in summary form the conclusions reached by the court in reasons for judgment: Warramunda at [8].
63․What flows from the nature of the remedy is that, save in the case of a representative action, a declaration binds only the parties to the proceeding: see Australasian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119 at 133-134. Ordinarily, a court will not make a declaration that certain rights or obligations exist, or do not exist, without the persons whose rights or obligations are in question being a party to the proceedings: Kunstler v Kunstler [1969] 1 WLR 1506; and The Dairy Farmers’ Co-operative Milk Co Ltd v The Commonwealth (1946) 73 CLR 381 at 392.
Findings giving rise to the basis for declaratory relief
64․The findings giving rise to relief were as follows:
(a)An equitable scheme of development was established, which included the golf course land: primary judgment at [131], [162].
(b)By that scheme, the golf course land is restricted to being used only for the purpose of a golf course, for purposes ancillary to the golf course, and such other purposes as presently permitted by the Golf Course Lease: primary judgment at [12], [162].
(c)The ACTPLA was the statutorily deemed agent of the ACT Executive: primary judgment at [38]-[40].
(d)There is no difference in the language used in the legislative regime that replaced the PD Act, such that the TPA is properly the successor of ACTPLA: primary judgment at [43].
(e)The equitable scheme of development is enforceable by purchasers of residential lots, including the plaintiff, against the Territory and its agents, including any statutorily deemed agent such as ACTPLA or the TPA: primary judgment at [163].
(f)However, the plaintiff is not able to enforce the scheme of development against the second defendant, GGI: primary judgment at [176].
Consequences of lack of notice to all interested parties
65․The authorities dealing with who are necessary and proper parties have been marshalled in MIR Holdings Pty Ltd v Marina Square Retail Pty Ltd [2020] NSWCA 286 at [31]-[33]:
31.On the morning of the hearing of this matter, the Court drew the parties’ attention to the decision of the High Court in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [131] ff, an authority that should be well known by all practitioners in the Equity Division.
32.That decision quoted with approval (at [132]) the well-known observations of the Full Court of the Federal Court in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524–525; [1996] FCA 870:
Where the orders sought establish or recognise a proprietary or security interest in land, chattels or a monetary fund, all persons who have or claim an interest in the subject matter are necessary parties. This is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest.
33.The same basic point was made in a related context by Edelman J in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) (2015) 329 ALR 1; [2015] FCA 825 at [942]–[944] where his Honour observed:
942It is well established that a declaration generally should not be made unless all persons interested in the declaration are made parties to the application: Cordina Chicken Farms Pty Ltd v Poultry Meat Industry Committee [2004] NSWSC 197 at [101] (Young CJ in Eq); Dairy Farmers’ Co-operative Milk Co Ltd v Commonwealth [1946] HCA 49; (1946) 73 CLR 381 at 392 (Latham CJ, Rich, Dixon, McTiernan and Williams JJ).
943In Sons of Gwalia Ltd (subject to deed of company arrangement) v Margaretic (2006) 149 FCR 227; [2006] FCAFC 17 at [9], Finkelstein J explained the basis for this principle:
‘An action for a declaration of rights serves a legitimate purpose where all persons who are interested in or might be affected by the enforcement of such rights and who might question in a court the existence and scope of such rights, are parties to the action and have an opportunity to be heard. Persons who are not parties to a declaratory judgment are not bound by it: London Passenger Transport Board v Moscrop [1942] AC 332 at 345. For them the declaratory judgment is a mere academic pronouncement. For this reason a court will not ordinarily grant declaratory relief unless all persons interested are made parties by representation orders and otherwise.’
944In other words, the reason why a declaration will not usually be made where all interested parties have not been joined is because it can be futile to grant a declaration that would otherwise affect the rights of interested parties, where the interested parties have not been afforded sufficient procedural fairness for them to be bound by the declaration.”
66․The first and most obvious declaration to follow from the findings of the primary judgment would have been to declare that an equitable scheme of development was established, and to make it clear (because precision is required) as to the totality of the land that fell within the equitable scheme that had been found established, which includes not only the golf course land but the residential lots that formed part of the development of Harcourt Hill referred to in the primary judgment.
67․However, it transpired during the hearing dealing with relief that not all the purchasers of the residential lots in Harcourt Hill that fell within the scheme of development that was ultimately found had been formally served with notice of the proceedings. Had this matter been identified at an earlier stage of the proceeding, the plaintiff would have been required to serve those owners, and those owners may have been made parties to the proceedings, even though they may not have actively participated. What occurred was unfortunate in that regard. The owners of the other residential lots were interested parties in the existence or otherwise of the equitable scheme of development at issue in the proceeding. Their land was part of the subject matter of the proceeding, namely the scheme of development that was alleged.
68․That has a consequence for the form of any declaration that may be made. Applying the principles set out above (at [60]-[63]), any declaration will be necessarily limited to the rights of the parties to the proceeding, namely the obligation that I have found the Territory has, and the benefit or right that the plaintiff has established. That addresses Issue 2.
The extent of declaratory relief in this proceeding
69․I will deal with Issue 4 first, and the Territory’s concern about the uncertainty of it being bound to ensure any outcome in circumstances where the planning decisions in the Territory have been delegated to an independent statutory entity.
70․The complete answer to that issue is the finding in the primary judgment (see [31]-[38]) that for the purposes of executing the land management function under ss 28 and 29(1)(b) of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth), the ACTPLA, or now the TPA, acts as the Territory’s agent. The Territory may have created a regime where it has little control over the management entity, but that does not absolve the Territory from its statutory obligation to manage Territory land. It need hardly be said that such management is to be in accordance with law. As the Court of Appeal stated in Higgins v Australian Capital Territory [2020] ACTCA 56 (Higgins), in reference to the Territory’s decision to involve a separate corporate entity as a joint venturer, at [60]:
… There is no obvious reason why the fact that an entity chooses to act through a nominee and agent means that it may quarantine itself from equitable obligations which arise from the conduct of the nominee and agent. …
71․The same reasoning applies to the Territory’s choice to fulfil its land management obligation by way of creating a specific statutory body to deal with that function. It does not free up whatever entity the Territory creates to ignore the Territory’s obligations at law, nor does it quarantine the Territory from such obligations. It is appropriate to make a declaration about the Territory’s obligations in that regard.
72․The real difficulty is what consequences those obligations have for GGI, which leads to a consideration of Issue 3. As GGI did not have notice of the scheme, it does not have any equitable obligation to give effect to any covenants forming part of that scheme. However, in the circumstances of this case, that is of small comfort to it, given that the Crown lessor does have an equitable obligation in relation to the parcel of land leased by GGI. Any change to the use of the golf course land proposed by GGI will be subject to the consent of the Crown lessor and it has separate obligations which affect the golf course land.
73․To the extent that the declaratory relief sought by the second defendant is that the covenant is not enforceable against the Territory, in the event that GGI made an application to rezone or otherwise change the use of the land, that relief is contrary to the finding of the primary judgment at [168]. There it was held that the plaintiff may enforce the restrictive covenant as to use in respect of the golf course land against the Territory and by extension, its statutory agent.
74․There was a further difficulty, in that GGI sought declarations that the restrictive covenant that had been found was “not enforceable” against it in respect of any application for development or any application for any variation to the Crown lease, or any application for the surrender and regrant of any part of the golf course land, any subdivision or the conduct of any development. Applying the principles set out at [48]-[57], given that there was no application of any kind made by GGI before the Court, these matters are so divorced from the proceedings as to fall into the category of hypothetical relief.
75․However, that does not mean that no relief ought to be granted at all. As stated in Higgins at [76], “a declaration as to the existence of an equitable obligation binding on [the Territory] would advance [the plaintiff’s] interests in, or in relation to, any statutory process following from GGI’s pursuit of its stated intentions”, recalling that it was the stated intention of GGI that acted as the catalyst for this proceeding: primary judgment at [2]-[5].
76․A declaration as to the plaintiff’s right vis-à-vis the Territory in respect of her land and whether it has the benefit of a restrictive covenant insofar as the Territory is concerned will be sufficient to quell the controversy that was brought before the Court.
77․It is appreciated that this outcome means that as against GGI, the plaintiff might achieve indirectly what she did not achieve directly. That is really a product of the planning system itself in the Territory and the fact that the leasing system means that the Territory or its agent retains a proprietary interest in every Crown lease. This case demonstrates a potential need for legislative reform of the kind that has been undertaken in other jurisdictions and which was discussed at [164] of the primary judgment.
78․As to the form of any declaration, the Territory made a submission that the declaration should state that the basis for the relief was that the Territory was a common vendor. That was not the essential or sole fact which founded the finding in the primary judgment that a scheme of development was established. As discussed at [49]-[55] of the primary judgment, that feature may be a guide as to whether a scheme is established, but the doctrine is flexible, with the focus being more upon a common intention and common interest. That point was similarly made by the Court of Appeal in Higgins at [59]. What founds the relief is the existence of the scheme of development.
79․Otherwise, there were a number of other causes of action included in the Further Amended Statement of Claim that fell away as a result of the plaintiff succeeding on her primary case, and as submitted by the Government parties, an order disposing of those matters is also appropriate.
Costs
80․The question of costs remains outstanding. I will allow the parties two weeks to file any further evidence and submissions on the question of costs, and a further two weeks for the parties to respond to each other’s submissions. I then propose to deal with the question of costs on the papers unless any party requests an oral hearing following receipt of the submissions in reply.
Orders
81․For the above reasons, the following orders are made:
(1)The Territory Planning Authority is substituted for the Australian Capital Territory Planning and Land Authority as the third defendant in this proceeding.
(2)The Court declares that, by reason of a scheme of development extending to the golf course land defined in Schedule A, the Territory, its assigns and agents (including the Territory Planning Authority) are obliged to give effect to the covenant that the golf course land be restricted to use only for the purpose of a golf course, for purposes ancillary to the golf course, and such other purposes as presently permitted by the Crown lease registered in Volume 2157 Folio 38.
(3)The said covenant is for the benefit of Block 34 Section 123 in the Division of Nicholls.
(4)The Further Amended Statement of Claim dated 20 April 2022 is otherwise dismissed.
(5)On or before 15 August 2025, the parties are to indicate by email to chambers their proposed orders on costs, and to provide any submissions or evidence in support of their proposed orders on costs.
(6)On or before 29 August 2025, the parties are to provide by email to chambers any submissions and evidence in reply on the question of costs.
(7)If any oral hearing is required on costs, the parties are to notify the Court by 5 September 2025.
(8)Subject to any party seeking an oral hearing on costs in accordance with order 7, the question of costs is to be determined on the papers.
Schedule A
The golf course land is comprised of the following parcels of land described in Volume 2157 Folio 38 as follows:
Block 2 Section 85; Block 1 Section 163; Block 1 Section 165; Block 14 Section 86; Block 11 Section 88; Block 2 Section 157; Block 5 Section 156; Block 21 Section 89; Block 22 Section 89; Block 24 Section 89; and Block 1 Section 164.
| I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: |
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