In The Matter of the Trade Practices Act 1974 as amended (Section 163A) And In The Matter of an Application by Tooth & Co. Ltd

Re TOOTH & Co. LTD. (1978) 31 FLR 314
Trade Practices

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Bowen C.J.(1), Franki(1) and Brennan(2) JJ.

CATCHWORDS

Trade Practices - Declarations - Future and hypothetical questions - Matters arising under the Act - Whether a real issue for determination - Case stated - Trade Practices Act 1974, ss.47 (9), (9) (a), 163A.

HEADNOTE

The applicant ("Tooths") sought declarations under s.163A of the Trade Practices Act 1974 concerning the validity and the construction of s.47 (9) of the Act.

Tooths is a brewer of bulk beer and owns a number of licensed hotels in New South Wales. The hotels are leased to various tenants. Each lease contains a covenant that the lessee would deal solely with the lessor for a variety of products including bulk beer. On 12th August, 1977, Tooths sent a letter to each lessee advising that as from that date Tooths required them to observe the convenant relating to bulk beer and waived its right in relation to other products. No lessee sold bulk beer other than that manufactured and supplied by Tooths.

In 1975 Tooths had sought, under s.88 (6) of the Act, authorization in respect of clauses in leases and other documents providing for exclusive dealing. The Trade Practices Commission dismissed that application. Tooths then made an application under s.101 of the Act to the Trade Practices Tribunal for a review of the Commission's determination. The review was continuing at the time of the present proceedings and interim authorizations were in effect.

Tooths indicated its intention that, in the event of the tribunal not granting authorization, it would go into possession of as many of these hotels, upon expiry of their respective leases, as would be economically and commercially practicable. This was said to be in order to ensure that no other bulk beers would be sold at the hotels. Shortly before the present proceedings Tooths had sought directions from the tribunal in relation to the construction and effect of s.47 (9). The Deputy President of the Tribunal rejected the construction of the subsection contended for by Tooths, but made no declaration.

Tooths stated that it was of considerable importance to have a declaration of the lawfulness of its intended conduct "so that it may know what action it is required to take" should the tribunal give an adverse finding.

Section 47 (1) and (9) (a) provides:

"47 (1) Subject to this section, a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing."

"47 (9) A corporation also engages in the practice of exclusive dealing if the corporation refuses to grant or renew, or exercises a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building for the reason that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate -

(a) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation."

The relevant parts of s.163A stipulate that:

"(1) Subject to this section, a person may institute a proceeding in the Court seeking, in relation to a matter arising under this Act, the making of -

(a) a declaration in relation to the operation or effect of any provision of this Act other than Division 2 of Part V or in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act; . . . and the Court has jurisdiction to hear and determine the proceeding."

The application was served on the Trade Practices Commission and Tooheys Ltd. (another brewer). The Attorney-General of the Commonwealth was notified and subsequently intervened but no argument was put forward on his behalf in the matters dealt with in this report. Tooths applied, pursuant to s.25 (6) of the Federal Court of Australia Act 1976, for the statement of a case for the consideration of the Full Court. A case was stated to the Full Court covering four questions. Only the first two were dealt with by the court, the other two questions being stood over to a date to be fixed. The two questions dealt with were: "(a) Whether upon the facts stated herein this Court should in the exercise of its jurisdiction under s.163A of the Trade Practices Act 1974 (as amended), make any declaration as to whether the intended conduct of the applicant in relation to any lease where at the date of expiry the facts are as stated herein would or could constitute exclusive dealing within the meaning of s.47 (9) of the said Act. (b) If the answer to (a) is in the affirmative, whether the said intended conduct of the applicant in relation to any lease where at the date of expiry the facts are as stated herein would or could constitute exclusive dealing within the meaning of s.47 (9) (a) of the said Act."

Held, per Bowen C.J. and Franki J.: (1) Question (a) involved consideration of the court's functions under s.163A. The court was given jurisdiction in relation to a matter arising under the Act.

(2) Where jurisdiction is found to exist, it is a matter within the discretion of the court whether or not it will make any particular declaration which is sought. This discretion is to be exercised on judicial grounds which will not necessarily correspond precisely with the grounds on which the discretion to grant a declaration is exercised in cases under the general law where proprietary rights are involved. Matters coming under s.163A may involve proprietary rights, but they may also involve the public interest.

(3) Before question (a) can be answered it was necessary to consider question (b). Question (b) was framed on the basis that at the expiry of a lease at a future time, the facts will be as set forth in the case.

(4) The discretion to be exercised is a very wide one. However, the power to make a declaration will not be exercised when the court is called upon to answer a question which is purely hypothetical.

(5) The principal difficulty facing Tooths was that the case it sought to raise upon the stated case might never arise at all. If the tribunal granted authorization, the question posed by question (b) would not arise. Further, there may be factors, other than those stated, which would bear on a refusal to renew.

(6) Section 163A reflects a legislative recognition of the practical and commercial difficulties likely to be encountered by reason of the operation of the Act and a legislative intention to provide a remedy. While a real and pressing question in a business or commercial sense confronted Tooths, it was not sufficient to call forth the exercise of the court's discretion. Not only was it hypothetical but also the effectiveness of a declaration was problematical. It would not be legally binding on a lessee who subsequently sought to litigate the issue. It was not inapt to describe the proceedings as a request for a mere advisory opinion.

(7) The court in the exercise of its discretion should refuse to answer question (b).

Per Brennan J. - (8) Question (a) raised the propriety of making the declaration to which question (b) refers.

(9) Antecedent to any question of the propriety of making a declaration was the question of the power to make it. Section 163A confers jurisdiction to make a declaration conditional upon a "matter arising" under the Trade Practices Act and, when the condition is fulfilled, a judicial discretion is to be exercised.

(10) Cases where the plaintiffs seek to establish their right to act in a particular way, free from criminal liability or free from interference constitute one of the classes of case in which declarations are granted. However, in those cases, a declaration when made settles the right in controversy between the parties. The question must be real.

(11) In these proceedings, such controversy as might be revealed by the facts set out in the special case was said to exist "for the purposes of these proceedings only". It was therefore impossible to find the facts, or to declare the relief (if any) to which the stated facts might entitle the applicant, in such a way that any issue of fact, or any right, obligation or liability dependent upon the facts stated, might become res judicata. The declaration sought was thus deprived at the outset of the quality of an adjudication.

(12) Where a statute such as the Trade Practices Act is drawn in general terms so that the application of a proscription to a proposed course of conduct is not clearly ascertainable, a remedy by way of declaration is particularly apposite to avoid the dilemma of abstaining from the conduct proposed or incurring the risk of proceedings to exact a penalty. But the remedy is nonetheless limited to cases which are not "hypothetical in a sense relevant to the exercise of this jurisdiction".

(13) It was not possible to determine that there was a sufficiently immediate and real controversy to warrant the making of a declaration.

(14) The answers to the first two questions are: question (a); No; question (b): Unnecessary to answer. Forster v. Jododex Pty. Ltd. (1972), 127 CLR 421; University of New South Wales v. Moorhouse (1975), 133 CLR 1; Ibeneweka v. Egbuna, (1964) 1 WLR 219; Commonwealth v. Sterling Nicholas Duty Free Pty. Ltd. (1972), 126 CLR 297; Pharmaceutical Society of Great Britain v. Dickson, (1970) AC 403; Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd., (1921) AC 438, considered.

HEARING

Sydney, 1977, November 25, 28; 1978, April 10. #DATE 10:4:1978

CASE STATED.

The applicant by a case stated to the Full Court raised questions dealing with the construction and validity of s. 47 (9) of the Trade Practices Act 1974. The applicant asked the court to make declarations, under s. 163A of the Act, as to whether certain intended conduct, set out in the facts as presented to the court, fell within the ambit of s. 47 (9).

G. G. Masterman Q.C. and J. O. North, for the applicant.

M. H. McLelland Q.C. and P. Hastings, for the Trade Practices Commission.

T. R. Morling Q.C., B. A. Beaumont and T. M. Jucovic, for the second respondent, Tooheys Ltd.

M. H. Byers Q.C., Solicitor-General for the Commonwealth and B. J. Tamberlin, for the Commonwealth Attorney-General.

Cur. adv. vult.

Solicitors for the applicant: Smithers, Warren & Tobias.

Solicitor for the Trade Practices Commission: A. R. Neaves (Commonwealth Crown Solicitor).

Solicitors for the second respondent, Tooheys Ltd.: Freehill, Hollingdale and Page.

Solicitor for the Commonwealth Attorney-General: A. R. Neaves (Commonwealth Crown Solicitor).

JUDGE1

April 10.

The following judgments were delivered.

BOWEN C.J. AND FRANKI J. On 24th October, 1977, Tooth & Co. Ltd. (hereafter sometimes referred to as "Tooths") made an application pursuant to s. 163A of the Trade Practices Act 1974 as amended, seeking six declarations concerned broadly with the validity and the construction of s. 47 (9) of the Act. This application was served upon the Trade Practices Commission (hereafter called "the commission") and upon Tooheys Ltd. (hereafter called "Tooheys"). Because it raised the question of the constitutional validity of s. 47, notice was given pursuant to s. 78B of the Judiciary Act 1903 as amended, to the Attorney-General of the Commonwealth who indicated that he desired to be heard and to the Attorney-General for the State of New South Wales who indicated that he did not desire to be heard. (at p317)

Thereafter Tooths applied pursuant to s. 25 (6) of the Federal Court of Australia Act 1976 for the statement of a case for the consideration of the Full Court. After consultation in chambers with counsel for Tooths, the commission, Tooheys and the Attorney-General of the Commonwealth, a case was stated bearing date 24th November, 1977. The case raised four questions. These, as slightly amended during the hearing, are: "(a) Whether upon the facts stated herein this Court should in the exercise of its jurisdiction under s. 163A of the Trade Practices Act 1974 (as amended), make any declaration as to whether the intended conduct of the applicant in relation to any lease where at the date of expiry the facts are as stated herein would or could constitute exclusive dealing within the meaning of s. 47 (9) (a) of the said Act. (b) If the answer to (a) is in the affirmative, whether the said intended conduct of the applicant in relation to any lease where at the date of expiry the facts are as stated herein would or could constitute exclusive dealing within the meaning of s. 47 (9) (a) of the said Act. (c) Whether it is within the jurisdiction conferred on this Court by s. 163A of the said Act to make a declaration as to whether s. 47 (9) (a) of the said Act is a valid exercise of the legislative power of the Commonwealth. (d) If the answer to (c) is in the affirmative, whether s. 47 (9) (a) of the said Act or any part thereof, is a valid exercise of the legislative power of the Commonwealth." (at p318)
When the matter came on for hearing, argument was heard on questions (a) and (b) and judgment was reserved. The hearing of the case in relation to questions (c) and (d) was stood over to a date to be fixed. (at p318)
The facts, which were stated to be for the purposes of these proceedings only, agreed between Tooths, the commission and Tooheys, were set forth in pars. (2)-(10) inclusive. These paragraphs are: "(2) The applicant is a trading corporation within the meaning of the Trade Practices Act and s. 51 (xx) of the Constitution. The applicant carries on business as a brewer and in the course thereof manufactures and sells, inter alia, bulk beer. (3) The applicant is the owner of numerous licensed hotels in New South Wales. The said hotels are currently the subject of leases to various tenants who pursuant to the terms of the lease conduct upon the premises the business of an hotel. The said leases are for various terms from one week to one hundred and fifty-six weeks and on an average several leases expire in every week. (4) Each of the said leases currently in force contains a covenant by the lessee in the case of leases entered into before 12th August, 1977, in the terms set out in the annexure marked 'B.1' hereto; in the case of leases entered into after 12th August, 1977, in the terms set out in the annexure marked 'B.2'. (5) On or about 12th August, 1977, the applicant sent to each of its said lessees a letter, a copy of the material terms of which is annexed hereto and marked 'C'. (6) No such lessee currently sells bulk beer other than that manufactured and supplied by the applicant. (7) On or about 10th January, 1975, the applicant made an application for authorization under s. 88 (6) of the Trade Practices Act 1974, which was numbered A.3321, and a copy of which is annexed hereto and marked 'D'. The said application was dismissed by a determination of the Trade Practices Commission on 23rd December, 1976. Thereafter the applicant made an application to the Trade Practices Tribunal under s. 101 of the Trade Practices Act 1974 (as then amended) for a review of the said determination. The said review is presently proceeding. In the meantime, interim authorizations have from time to time been made in respect of the said application for authorization, the last of which was made by the Trade Practices Tribunal on 10th June, 1977, until the hearing and determination of the said application for review or until further order. (8) It is the intention of the applicant that in the event that the Trade Practices Tribunal determines not to grant the said application for authorization, it will go into possession of as many of the hotels leased as aforesaid upon the expiry of the respective leases thereof as is economically and commercially practicable, and manage the same itself rather than lease them, in order to ensure that bulk beer manufactured by the applicant and no other will be sold at such hotels, and without seeking from any such lessee any agreement, arrangement or undertaking that such lessee will not acquire any goods or services from a competitor of the applicant. (9) On 12th October, 1977, during the course of the proceedings before the Trade Practices Tribunal referred to in par. (7) hereof Riley J. as the presidential member of the tribunal, gave a decision pursuant to s. 42 of the Trade Practices Act. A copy of the decision is hereunto annexed and marked 'E'. (10) The applicant considers that it is of considerable importance for it to have a determination on this matter prior to any decision of the Trade Practices Tribunal so that it may know what action it is required to take in respect of the leases falling due immediately following any adverse decision of the tribunal and in respect of which there will not then be adequate time to obtain a declaration." (at p319)
Annexure "B.1" referred to in par. (4) was a covenant by the lessee to deal solely with the lessor for "all spirits, wines, beers, ales and porters and other liquers (sic), cordials, minerals and aerated waters". (at p319)
Annexure "B.2" was similar to "B.1" but a reference to "bulk beer" was substituted for the reference in "B.1" to the various drinks there mentioned. (at p319)
Annexure "C", which is a letter dated 12th August, 1977, to current lessees, informed them that as from the date of the letter Tooths required them to observe the covenants as being limited to bulk beer and bulk ale and waived its rights in relation to other products. (at p319)
Annexure "D" is an application for authorization in respect of clauses in leases and other documents providing for exclusive dealing. (at p320)
Annexure "E" sets forth the reasons for decision of Riley J., the presidential member of the Trade Practices Tribunal hearing the proceedings referred to in par. (7), upon an application by Tooths for two declarations and Tooheys for one declaration. The declarations were sought pursuant to s. 42 (1) of the Trade Practices Act. The declarations sought related to the construction and effect of s. 47 (9) of the Act and, although differently worded, raised issues like those raised by question (b) of the stated case. His Honour in his reasons rejected the construction of s. 47 (9) contended for by Tooths and Tooheys but refused to make any declaration. The present proceedings are not an appeal against his Honour's decision. The facts before him were not identical with those now stated in the case. (at p320)
We turn now to questions (a) and (b) asked in the stated case. Question (a) involves consideration of the court's function under s. 163A. Clearly that section invites "a person" to institute a proceeding in the court seeking "a declaration in relation to the operation and effect of any provision" of the Act. (at p320)
The court is given jurisdiction to hear and determine the proceeding. Because of the terms of Ch. III of the Constitution, the court can only validly be given jurisdiction where there is a "matter". This requirement is reflected in s. 163A, which confers jurisdiction "in relation to a matter arising under the Act". The distinction between "matter" and "proceeding" has to be borne in mind in applying s. 163A (see Re Judiciary and Navigation Acts (1921) 29 CLR 257, at p 265 ; Collins v. Charles Marshall Pty. Ltd. (1955) 92 CLR 529, at p 541 ; and Felton v. Mulligan (1971) 124 CLR 367, at p 382 . However, the words used in s. 163A do not necessarily require the existence of a "matter" separate and distinct from the "proceeding". Section 163A is an example of the method of legislating to confer jurisdiction which is referred to in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, at p 165 and Hooper v. Hooper (1955) 91 CLR 529, at pp 535-536 . where the statute deals with substantive rights although expressed in terms conferring jurisdiction. (at p320)

Where jurisdiction is found to exist, it is, in our opinion, a matter within the discretion of the court, whether or not it will make any particular declaration which is sought. This discretion is to be exercised on judicial grounds, which will not necessarily correspond precisely with the grounds on which the discretion to grant a declaration is exercised in cases under the general law, where proprietary rights are involved. Matters coming before the court under s. 163A may involve proprietary rights, but they may also involve the public interest. They may involve breaches or possible breaches of penal or criminal provisions. Where it is appropriate the court will draw gratefully upon the wisdom accumulated in judgments on the exercise of this discretion under the general law but the court is likely to be faced with some cases where it will have to develop its own rules. (at p321)
The court has also a general power to make declarations of right in relation to matters in the original jurisdiction but this power is exercisable only when the court already has jurisdiction in the matter and does not confer original jurisdiction as does s. 163A (Federal Court of Australia Act, s. 21; High Court Rules, O. 26, r. 19). (at p321)
Questions (a) and (b) were argued together. Before question (a) can be answered, it is necessary to consider what is the point of law raised by question (b) and what are the facts which are said to give rise to it. (at p321)
Section 47 (1) and (9) (a) is as follows:

"47 (1) Subject to this section, a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing."

"(9) A corporation also engages in the practice of exclusive

dealing if the corporation refuses to grant or renew, or exercises a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building for the reason that

another party to the lease or licence or, if that other party is a

body corporate, a body corporate related to that body corporate -

(a) has acquired, or has not agreed not to acquire, goods or

services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; . . . " (at

p321)

Section 47 (1) does not apply to the practice of exclusive dealing dealt with by s. 47 (9) (a) unless it has the purpose or has or is likely to have the effect of substantially lessening competition (s. 47 (10)). And the reference to competition is to be read as a reference to competition in the relevant market which is referred to in s. 47 (13). Also in considering the reference to "refusal" to grant or renew and the reference to the "reason" in s. 47 (9) (a) it is necessary to have in mind s. 4(2) (c) which widens the range of conduct which may constitute a refusal and s. 4F (b) which deals with the situation where there is more than one purpose or reason. The consequences which flow from a breach of s. 47 (9) are that a body corporate in breach is liable for a pecuniary penalty not exceeding $250,000 (s.76) and may in appropriate cases be subject to an injunction (s.80), to damages (s.82) and to various consequential orders (s.87). The party is not liable to criminal prosecution (s.78) and the pecuniary penalty is recoverable by the Minister or commission in civil proceedings (s.77). (at p321)
At present there exists an interim authorization by the tribunal which permits the continuance of the system of "tied" houses, which would otherwise be in breach of s. 47. This interim authorization extends until the hearing and determination of the application before the tribunal or further order. When the tribunal gives its decision, it is said to be reasonable to assume that if its decision is against the maintenance of that system, no further authorization will be granted. Should that occur, Tooths desires and intends to enter into possession of hotels, the leases of which thereafter expire, so far as it is economically and commercially practicable, and to instal its own managers. Having regard to the large number of existing leases and the way in which they are spaced, it is said that whenever the tribunal's decision may be given, certain of the leases will either immediately or shortly thereafter expire by effluxion of time. Tooths is anxious not to enter in this way if it would constitute a breach of the Act, though no doubt the matter might at that time be tested in proceedings for penalty or for a declaration, if it did so. It desires to know now whether this would be a breach of s. 47 (9) (a). It contends, in effect, that s. 163A inviting parties to apply for declarations as to the operation or effect of a provision such as s. 47 (9) (a) or in relation to the validity of any Act or thing done or proposed to be done or purporting to have been done under the Act, is a statutory recognition of the practical and business difficulties arising under the Act and a provision designed to enable a party to obtain a decision of the court in advance, where there is a real and substantial interest to be served by doing so. (at p322)
Question (b) is framed on the basis that at the expiry of a lease at a future time the facts will be as set forth in the case. The lease in question would be one which had validly contained a provision that no bulk beer except that brewed by Tooths would be sold or consumed on the premises. The lessee would be a person who had previously agreed to this tie and also a person who had not acquired bulk beer from a competitor. The lessee would not be a person who had refused to agree not to acquire bulk beer from a competitor but neither, after the date of expiry of the lease, would he be a person who had then agreed because he would not have been asked. There would, therefore, be the absence of a current agreement not to acquire such beer. The reason for Tooth's action would be to ensure that its bulk beer and no other was sold at the hotel. (at p322)
It is argued for Tooths that in these circumstances, which have not yet occurred but which, it is said, will be bound to occur if the tribunal decided against continued authorization, there would not be exclusive dealing within the meaning of s. 47 (9) (a). The arguments put forward for Tooths were adopted and supplemented by the respondent Tooheys. The commission on the other hand argued there would be a contravention of the section. (at p322)
The issues which arise in these circumstances, assuming they occur, are whether there is a refusal to renew, and, if so, whether it is either for the reason that the former lessee has acquired bulk beer from a competitor or for the reason that the former lessee has not agreed not to acquire bulk beer from a competitor. (at p323)
As to whether there is a refusal to renew, some argument took place on the question whether "renew" in this context meant renew at the same rent, for the same term and upon the same terms and conditions, or meant renew at a rent, for a term and upon terms and conditions, which were reasonable. It is not necessary to canvass this question further. It was introduced, we gather, to suggest that a somewhat extraordinary perpetual right to renewal may be conferred upon lessees, unless the section is in some way restricted in its operation. The critical point here is whether there is a "refusal". The contention of the commission is that the terms of s. 4 (2) (c) compel an affirmative answer, that Tooths would have "refrained" from renewing, and that by virtue of s. 4 (2) (c) this constitutes a refusal. (at p323)
If this contention be correct, the question arises whether that refusal is for the reason that the former lessee "has acquired" bulk beer from a competitor. It was argued for Tooths that it was irrelevant to the application of this part of s. 47 (9) that a lessor went into possession because it feared, if there were a renewal of the lease, that in the future the lessee might acquire bulk beer from a competitor. It was only if the reason was that the lessee had acquired such beer that this part of s. 47 (9) (a) would apply; if he had not done so up to the date of entry by the lessor, then this part of s. 47 (9) (a) could have no application. Counsel for the commission did not contest the construction placed on this limb of s. 47 (9) by counsel for Tooths. Rather he used it to stress that one would not know the factual situation in relation to any particular lease, until the events occurred. It illustrated the hypothetical nature of the questions raised. (at p323)
The next question arising on s. 47 (9) (a) is whether the refusal of renewal is for the reason that the former lessee "has not agreed not to acquire" bulk beer from a competitor. It was argued for Tooths that in the supposed case the lessee would, in fact, under his earlier lease, have agreed, so it would not be correct to say he had not agreed not to acquire bulk beer from a competitor. However, we do not think this part of s. 47 (9) (a) is concerned with past and spent agreements. Counsel argued that, if one was required to look at the position at the time of the lessor's entry into possession, then there had been no request and no refusal to agree and the words in this part of s. 47 (9) (a) required lack of agreement in that sense. It was not found convenient to formulate the precise limitations in this regard upon the words used in s. 47 (9) (a). Counsel for Tooheys supported the argument put by counsel for Tooths. He argued that it would not be a conventional use of language to say that a person had not agreed to do X, if he had not been asked to do X. He pointed to the use of the words "has not agreed not to acquire" in other subsections in s. 47. Counsel for the commission pointed out that the legislature had not used the words "failed to agree" or "refused to agree" which one might have expected if it intended to bring in a subjective element. It had used an expression which was descriptive only of an objective state of affairs. As he said, in the universe of non-agreements, if non-agreement is the operative reason for the conduct of the lessor, then the paragraph is satisfied according to its terms. (at p324)
It is not easy to see why the words "has not agreed not to acquire" in s. 47 (9) (a) do not refer simply to a situation where that is the case, without regard to the cause of that situation. It may be because the lessee has not been asked. It may be because the lessee has offered to agree and his offer has been refused. It may be because of the operation of law. Whatever the cause, if the lessee has not agreed and if that is the reason why the lessor has refused to renew the lease, it is difficult to see why s. 47 (9) would not apply. However, that is one of the issues raised by question (b) of the case. (at p324)
Assuming for the moment that s. 47 (9) would apply in those circumstances, the further question arises whether, there being an absence of such an agreement in fact at the time of entry by Tooths, this would or could, in the circumstances supposed, ever be said to be the reason for refusal to renew, i.e. refraining in fact from renewing the lease. (at p324)
According to the stated case, Tooths would go into possession, where economically and commercially practicable, and manage the hotels in question itself rather than lease them in order to ensure that bulk beer manufactured by it and no other would be sold at such hotels. But basic to the factual situation is the fact that the interim authorization would have terminated and that there would be no agreement on the part of the lessee not to acquire the goods of a competitor. Implicit in the reason stated is that Tooths would go into possession and manage the hotels itself in order to overcome that situation and so ensure exclusivity of its own supply of beer. If the lessee could lawfully agree and did agree as in the past, there is no suggestion that Tooths would adopt the proposed course. But because of the situation expected to arise, where there was an absence of agreement by the lessee, then Tooths would feel obliged to go into possession and to manage in order to ensure continuance of exclusive supply of its beer. If a lessee or former lessee claimed that he had been adversely affected and that he had a cause of action, he would, no doubt, argue that the reason Tooths refused to renew would include the non-agreement of the lessee and that this was a substantial reason (see s. 4F (b)). Such a lessee might also wish to tender other evidence relating to his case, which would bear on the reason. (at p324)
These are the matters which arise for decision if the court deals with question (b). We return now to question (a), which raises the question whether the court should, in the circumstances, make a declaration as sought in question (b). (at p325)
Assuming the facts sufficiently disclose a "matter" in the relevant sense, so that the court has jurisdiction, the point is whether the court in the exercise of its discretion should make a declaration. (at p325)
Even where the discretion depends upon a section similar to s. 21 in the Federal Court of Australia Act 1976 and where there exists no section corresponding to s. 163A of the Trade Practices Act, the discretion is a very wide one. Referring to a discretion of that type, Gibbs J. in Forster v. Jododex Pty. Ltd. (1972) 127 CLR 421, at pp 437-438 said: "It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. (1921) 2 AC 438, at p 448 , 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, some one presently existing who has a true interest to oppose the declaration sought.' Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v. Egbuna (1964) 1 WLR 219, at p 225 : 'After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration.'" Bearing on the first of the matters stated by Lord Dunedin, it is said that, as a general rule, the power to make a declaration will not be exercised when the court is called upon to answer a question which is purely hypothetical (see University of New South Wales v. Moorhouse (1975) 133 CLR 1, at pp 9-10 per Gibbs J.). (at p325)
Further guidance in dealing with hypothetical questions when exercising the ordinary general discretion is afforded by the statement of Jacobs J. in University of New South Wales v. Moorhouse.Jacobs J. said: "A declaration of right based on facts found in the particular case can certainly be made but it is not permissible to make a declaration of right which amounts to a conclusion of fact from a hypothetical or assumed state of facts and thereby to enunciate or declare a rule of apparently general application as though it were a declaration of applicable law. A declaration of right based on hypothetical or assumed facts may be made when the assumed facts can be certainly and exhaustively stated and when the conclusion flowing therefrom is truly a conclusion of law but not when it is itself a conclusion of fact" (1975) 133 CLR, at p 24 . Reference may also be made to Commonwealth v. Sterling Nicholas Duty Free Pty. Ltd. (1972) 126 CLR 297 , Johnco Nominees Pty. Ltd. v. Albury-Wodonga New South Wales Corporation (1977) 1 NSWLR 43 , and Re Barnato deceased; Joel v. Sanges (1949) Ch 258 . (at p326)
It may be said in favour of Tooths' claim, that there is shown to be a general policy on tied hotels, that it is not unreasonable to conclude that Tooths, faced with the circumstances envisaged in the stated case, would act for the reason stated in the case. Intervening circumstances might complicate the position. Thus, if certain leases were due to expire within the week following the termination of the authorization, it is reasonable to assume Tooths, if not prevented by law, would enter into possession of some for the reason stated in the case, and that in some cases it would be found to be economically and commercially practicable. It is by no means certain that it would be so; but there is no reason to suppose that in none of such cases would it be found to be economically or commercially feasible. The case where a lease expires at a greater distance of time, say, one month after the termination of the authorization, presents more difficulty. In such a case the lessee would remain a lessee for, say, one month and the court has no means of inferring whether that lessee, being freed by law of the tie, might or might not acquire the beer of a competitor. If he did, then at the time of entry after expiry of the lease, it might not be possible to assert he was a lessee who had not acquired the goods of a competitor. In such circumstances it may be that a significant proportion of the leases concerned might by reason of subsequent facts be taken outside the facts stated in the case. However, it may be argued that this does not remove altogether the reality of the question. It merely tends to minimize it, although it must be stated again that there is no certainty that a critical case or cases would in fact occur. (at p326)
Counsel for Tooths as well as meeting these factual difficulties head on, also advanced a different argument by which it sought to by-pass them. He submitted that Tooths as owner of the reversion of the various freeholds had a bundle of rights, which fell to be determined in accordance with the law, that s. 47 as it now stood had an immediate and direct impact upon those proprietary rights and that Tooths had a real and immediate interest in having determined what was the present state of those rights as affected by s. 47. While this argument is correct so far as it goes, it seems it does not go the whole distance. While the existence of the bundle of rights is undoubted, it may be said the occasion to make a declaration concerning such rights will only arise if the question posed has arisen or it can be seen it will arise. (at p327)
The principal difficulty facing Tooths is that the case it seeks to raise upon the stated case may never arise at all. If the tribunal arrives at a decision favourable to the "tied" house system and grants authorization, the question posed by question (b) will prove to have been an academic question. The further difficulties that there may be other factors which bear on the reason for refusal to renew beyond those stated in the case, the fact that in some cases it may be that Tooths will not carry out its intention of entering when the lease expires, and the fact that lessening of competition has not been demonstrated, are also difficulties which suggest a degree of uncertainty whether the question it poses will ever arise. In these circumstances, we consider that if we were exercising the ordinary discretion conferred by the Federal Court of Australia Act 1976, s. 21, we should refuse to make the declaration sought. (at p327)
Is the position any different when we are called upon to exercise the discretion conferred by s. 163A? By way of illustration, a corresponding though not identical question would have arisen in Re Barnato deceased; Joel v. Sanges (1949) Ch 258 if a provision similar to s. 163A had been included in the Finance Acts there under consideration. In its setting in the Trade Practices Act, s. 163A reflects a legislative recognition of the practical and commercial difficulties likely to be encountered by reason of the operation of the Act and a legislative intention to provide a remedy. In the present case, a real and pressing question in a business or commercial sense confronts Tooths. Is this sufficient to call forth the exercise of our discretion? We think not. Not only is the question hypothetical in nature, as already discussed, but there is the additional matter, relevant also to the exercise of the general discretion, that the effectiveness of a declaration in the given circumstances is problematical. It would not be legally binding upon a lessee who subsequently sough to litigate the issue with Tooths and, so far as Tooths is concerned, its agreement to the facts in the case is expressly stated in par. (1) to be "for the purposes of the proceedings only". It is not inapt to describe the proceeding as a request for a mere advisory opinion. (at p327)

In these circumstances, we are of opinion the court should decline to make a declaration. This conclusion renders it unnecessary to express an opinion upon the question whether there is a "matter" in the relevant sense or whether the absence from the proceedings of any lessee, who might be affected, should lead the court to refuse to make a declaration. (at p327)
In the result, we conclude that the court in the exercise of its discretion should refuse to answer question (b). On this basis, question (a) might be answered "No". However, before any formal answer is given, the parties should be given an opportunity of considering whether they wish to argue questions (c) and (d). (at p328)

JUDGE2

BRENNAN J. The parties consented to the statement of a special case which raises four questions. The first two of those questions have been argued; the latter two questions have been stood over. The first two questions are: "(a) Whether upon the facts stated herein this Court should in the exercise of its jurisdiction under s. 163A of the Trade Practices Act 1974 (as amended), make any declaration as to whether the intended conduct of the applicant in relation to any lease where at the date of expiry the facts are as stated herein would or could constitute exclusive dealing within the meaning of s. 47 (9) (a) of the said Act. (b) If the answer to (a) is in the affirmative, whether the said intended conduct of the applicant in relation to any lease where at the date of expiry the facts are as stated herein would or could constitute exclusive dealing within the meaning of s. 47 (9) (a) of the said Act." The "intended conduct" and the other "facts as stated" are to be found in pars. (2) to (10) of the special case, and they were agreed between the applicant and the respondents "for the purposes of these proceedings only". (at p328)

The case states that the applicant is a trading corporation within the meaning of the Trade Practices Act 1974 and s. 51 (xx) of the Constitution; that the applicant carries on business as a brewer and, in the course of that business, it manufactures and sells, inter alia, bulk beer; that it owns numerous licensed hotels in New South Wales many of which are leased to tenants for terms which vary between one week and one hundred and fifty-six weeks; that each of the leases contains a tie clause (the form of which varies according to whether the lease was entered into before or after 12th August, 1977); and that the leaseholds are substantial outlets for the bulk beer manufactured and supplied by the applicant, no lessee selling bulk beer other than the applicant's bulk beer. (at p328)
The case further states that the applicant sought an authorization pursuant to the provisions of s. 88 (6) of the Trade Practices Act 1974 to engage in the practice of exclusive dealing, a practice which is proscribed by s. 47 (9) and which might be thought to be constituted by performance of the obligations in brewer's tie clauses in the leases granted by the applicant to its representative tenants. (at p328)
Tie clauses were also inserted in the mortgages or bills of sale taken by the applicant to secure advances made by it to hotel licensees, and authorization was sought with respect to the practice of exclusive dealing which might be thought to be constituted by performance of the obligations in those clauses. The ties in the security documents are not relevant to the questions posed in the case. (at p329)
The case further states that the application for authorization was dismissed by a determination of the Trade Practices Commission and that an application to review that determination was made to the Trade Practices Tribunal; and that the review is proceeding. However, the tribunal adjourned in order that the applicants may seek relief from this Court. The substantive relief in accordance with question (b), which the applicant seeks, is a declaration of the lawfulness of the applicant's intended conduct with respect to the renewal of the leaseholds when the present leases respectively expire. (at p329)
The applicant's intention is set forth in par. (8) of the case in these terms: "It is the intention of the applicant that in the event that the Trade Practices Tribunal determines not to grant the said application for authorization, it will go into possession of as many of the hotels leased as aforesaid upon the expiry of the respective leases thereof as is economically and commercially practicable, and manage the same itself rather than lease them in order to ensure that bulk beer manufactured by the applicant and no other will be sold at such hotels, and without seeking from any such lessee any agreement, arrangement or undertaking that such lessee will not acquire any goods or services from a competitor of the applicant." (at p329)
If made, the declaration sought as the answer to question (b) would be material to the consideration by the Trade Practices Tribunal of its decision in the proceedings pending before it. So much may be inferred from the reasons for an interim decision given by the Deputy President of the Tribunal (Riley J.) in the course of the tribunal hearing. Those reasons are annexed to and form part of the case stated. (at p329)
In the event of an adverse decision by the tribunal, the applicant would wish to have the declaration of the lawfulness of its intended conduct "so that it may know what action it is required to take". (at p329)
The respondents in these proceedings are the Trade Practices Commission and Tooheys Ltd. The commission was represented before the tribunal and in this Court. It had not, before the institution of these proceedings, and it has not since, threatened to institute any proceedings against the applicant if it should engage in the conduct referred to in par. (8) of the case, although the commission's argument before this Court placed a different construction upon s. 47 from that submitted by the applicant. The construction for which the commission contends would confine the applicant's freedom to act more narrowly than would the construction for which the applicant contends. Tooheys Ltd. has no interest adverse to the interests of the applicant: according to the reasons for decision of the deputy president, it is also a brewer which had made an application to the Trade Practices Commission for an authorization similar to the application made by the applicant, and after both applications had been dismissed, Tooheys Ltd. and the applicant each applied to the tribunal for a review of the commission's determination, and those applications were being heard together. Before this Court, Tooheys Ltd. supported, adopted and added to the submissions of the applicant. (at p330)
The first question posed by the case raises the propriety of making the declaration to which the second question refers. Should the declaration of the lawfulness of the applicant's intended conduct be made in exercise of the jurisdiction conferred by s. 163A of the Trade Practices Act? That section, in its relevant parts, reads as follows:

"(1) Subject to this section, a person may institute a proceeding in the Court seeking, in relation to a matter arising under this

Act, the making of -

(a) a declaration in relation to the operation or effect of any

provision of this Act other than Division 2 of Part V or in relation to the validity of any act or thing done, proposed to be done or

purporting to have been done under this Act; . . .

and the Court has jurisdiction to hear and determine the

proceeding." (at p330)

Antecedent to any question of the propriety of making a declaration is the question of the power to make it. The Constitution empowers the Parliament to confer a discretionary jurisdiction on the court where there is a "matter" between parties and where the discretion conferred is a judicial discretion (Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores (1971) 127 CLR 617, at p 638 per Menzies J.). In s. 163A both requirements are met. That section, in language which follows and imports the meaning of the phrase in s. 76 (ii) of the Constitution, confers jurisdiction to make a declaration conditional upon a "matter arising" under the Trade Practices Act and, when the condition is fulfilled, a judicial discretion is to be exercised. The condition that there be a "matter arising" distinguishes the jurisdiction conferred under s. 163A from that exercised by courts of general jurisdiction, but whether the condition confines the jurisdiction to make a declaration within narrower limits than those defined by the exercise of a judicial discretion is a question which it is not necessary to answer in these proceedings (or, at least, in advance of any argument on the questions which have been stood over). Equally, it is not necessary to say whether there is a margin of jurisdiction which lies beyond the limits defined by the exercise of a judicial discretion, or whether the jurisdictional and discretionary limits coincide. Courts of general jurisdiction have determined whether or not to make a declaration by reference to discretionary rather than jurisdictional criteria (Johnco Nominees Pty. Ltd. v. Albury-Wodonga New South Wales Corporation (1977) 1 NSWLR 43 ; Leverington v. State Planning Authority (1970) SASR 387 ), and in Luna Park Ltd. v. Commonwealth (1923) 32 CLR 596 the High Court resolved the question by reference to discretionary criteria. In some future case under s. 163A a question may arise whether jurisdictional criteria compel the refusal of a declaration which would otherwise be granted. Consideration of that question should be reserved until it arises, though I note that Isaacs J. in Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia (1925) 36 CLR 442, at pp 450, 451 , suggests a coincidence of jurisdictional and discretionary limits. Question (a) is framed in terms of the proper exercise of a discretionary jurisdiction, and it should be so answered. (at p331)
Cases where the plaintiff seeks to establish his right to act in a particular way, free from criminal liability or free from interference by government and statutory authorities, constitute one of the classes of cases in which declarations are granted. Dr. Zamir in The Declaratory Judgment (1962), pp. 174, 175, collects some of the cases in this class. Traders have long been entitled to this kind of declaratory relief when they seek to establish a right to carry on business in a particular way (Rossi v. Edinburgh Corporation (1905) AC 21, at p 31 ) but the relief is not restricted to traders. In Pharmaceutical Society of Great Britain v. Dickson (1970) AC 403, at p 433 Lord Upjohn said: "This principle is not confined to trade. A person whose freedom of action is challenged can always come to the court to have his rights and position clarified, subject always, of course, to the right of the court in exercise of its judicial discretion to refuse relief in the circumstances of the case". The High Court upheld the making of a declaration in this class of case in Commonwealth v. Sterling Nicholas Duty Free Pty. Ltd. (1972) 126 CLR 297 . But in cases of this class, the plaintiff is seeking to establish a right which is denied by the defendant, and the declaration (if made) settles the right in controversy between the parties. The declaration, as a judgment inter partes, binds them for the future, and thus judicially determines a real controversy. A declaration cannot be made if there be no real controversy, or if the declaration sought be incapable of determining a real controversy. Thus Viscount Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. (1921) 2 AC, at p 448 drew attention to the essential elements of a controversy fit for judicial settlement by declaration when he said: ". . . 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". (at p331)
In these proceedings, such controversy as may be revealed by the facts stated in pars. (2) to (10) of the special case exists "for the purposes of these proceedings only", and it is impossible to find the facts, or to declare the relief (if any) to which the stated facts might entitle the applicant, in such a way that any issue of fact, or any right, obligation or liability dependent upon the facts stated, may become res judicata. The declaration sought is thus deprived at the outset of the quality of an adjudication. At best, the declaration sought might determine what the rights, obligations or liabilities of the applicant would be if in future proceedings between the same parties the facts were found to be as stated in the special case. A special case in which facts are stated "for the purposes of these proceedings only" is no different in substance from a case in which a declaration is sought as to what the applicant's rights, liabilities or obligations would be if the facts were as stated in the case. (at p332)
Even if it were possible to find the real facts to be as stated in pars. (2) to (10) of the special case, question (b) would, in my opinion, be theoretical in the relevant sense. The answer to question (b) depends upon the facts stated in the special case and, in particular, upon facts stated in par. (8) which have not yet occurred. Where the right, obligation or liability which an applicant seeks to establish depends upon facts which have not yet occurred, an hypothetical element is necessarily present in the question to be determined, for the facts upon which the question depends may never occur. But mere futurity does not establish that the question is hypothetical in the relevant sense. In Rediffusion (Hong Kong) Ltd. v. Attorney-General of Hong Kong (1970) AC 1136, at p 1158 , Lord Diplock, delivering the majority judgment of the Judicial Committee, said: "All questions involved in quia timet proceedings are hypothetical and future. To exclude the jurisdiction of the court to inquire into them in order to decide whether to exercise its discretion to grant relief, the defendants would have to show that the questions were purely abstract questions the answers to which were incapable of affecting any existing or future legal rights of the plaintiffs". (at p332)
That the discretion to make a declaration extends to cases which are dependent upon future facts is clear from the judgment of Barwick C.J. in Commonwealth v. Sterling Nicholas Duty Free Pty. Ltd.: "The jurisdiction to make a declaratory order without consequential relief is a large and most useful jurisdiction. In my opinion, the present was an apt case for its exercise. The respondent undoubtedly desired and intended to do as he asked the Court to declare he lawfully could do. The matter, in my opinion, was in no sense hypothetical, but in any case not hypothetical in a sense relevant to the exercise of this jurisdiction. Of its nature, the jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law. Indeed, it is that capacity which contributes enormously to the utility of the jurisdiction" (1972) 126 CLR, at p 305 . (at p333)
The availability of declaratory relief in cases where the relevant facts have not yet occurred provides an inhibition against the commission of illegal acts in some instances, and an assurance of freedom from prosecution in others. Where a statute is drawn (as the Trade Practices Act is drawn) in general terms so that the application of a proscription to a proposed course of conduct is not clearly ascertainable, a remedy by way of declaration is particularly apposite to avoid the dilemma of abstaining from the conduct proposed or incurring the risk of proceedings to exact a penalty. (at p333)
But the remedy is nonetheless limited to cases which are not "hypothetical in a sense relevant to the exercise of this jurisdiction". The difficulty is to determine whether a particular case falls on one side or the other of the line which divides the hypothetical from the non-hypothetical cases. In the United States, where federal courts are limited (pursuant to Art. III of the U.S. Constitution, and by the Declaratory Judgment Act) to granting declaratory relief only in "a case of actual controversy", the Supreme Court has held that the difference between such a case and an hypothetical case is one of degree: "The difference between an abstract question and a 'controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment" (Maryland Casualty Co. v. Pacific Coal and Oil Co. (1941) 312 US 270, at p 273 ). The immediacy and reality of a controversy are factors to which weight must be given in applying the principle expressed by Lord Radcliffe in delivering the judgment of the Judicial Committee in Ibeneweka v. Egbuna: " . . . it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realization that judicial pronouncements ought not to be issued unless there are circumstances that call for their making" (1964) 1 WLR, at p 225 . A controversy as to the lawfulness of future conduct cannot be said to be immediate and real if it is unlikely that the applicant will engage in the conduct (Golden, Acting District Attorney of Kings County v. Zwickler (1969) 394 US 103, at p 109 ). If the prospects of the applicant engaging in the conduct are uncertain, the uncertainty may deprive the controversy of a sufficient immediacy and reality to warrant the making of a declaration (Steffel v. Thompson (1973) 415 US 452, at p 460 ). The degree of uncertainty as to whether the applicant will engage in the conduct proposed will usually determine whether the circumstances call for the making of a declaration. (at p334)
In the present case, the relevant conduct is referred to in par. (8) of the special case. It consists in a possible going "into possession of . . . the hotels leased as aforesaid upon the expiry of the respective leases thereof, and manage the same . . . without seeking from any such lessee any agreement, arrangement or undertaking that such lessee will not acquire any goods or services from a competitor of the applicant". The conduct will be engaged in "in the event that the Trade Practices Tribunal determines not to grant the said application for authorization", and then only where it "is economically and commercially practicable" to do so. There are no facts stated which would allow an estimate to be made of the likelihood of the stated contingencies eventuating. It is not possible to determine that there is a sufficiently immediate and real controversy to warrant the making of a declaration. (at p334)
Indeed, it is not possible to determine that there is or will be a controversy at all. Where the applicant seeks a declaration as to the lawfulness of his proposed conduct, he must show a real apprehension that the respondent will on that account prosecute or otherwise take some step adverse to the applicant's interests. It is not sufficient to show merely that the apprehension exists, for the apprehension may be imaginary or speculative, rather than real (cf. Younger, District Attorney of Los Angeles County v. Harris (1971) 401 US 37, at pp 41, 42 ). The observations of Greer L.J. in Ruislip-Northwood Urban District Council v. Lee (1931) 145 LT 208, at p 214 are in point: "I do not think anyone can go about and say that 'Mr. X will probably be going to make a claim against me. He has not said so. I have no reason to suppose it, except my own thoughts, and I will therefore issue a writ against him and claim a declaration that if he ever does make that claim against me he will be wrong.' You cannot do that". In the present case, it is certain that there is no controversy between the applicant and Tooheys Ltd. Whether there would be any controversy between the applicant and the Trade Practices Commission if the proposed conduct is engaged in is unknown. In the absence of any immediate and real controversy the declaration should be refused on discretionary grounds. (at p334)

This conclusion renders it unnecessary to construe s. 163A (3) which was said to reveal a legislative intention that the commission was not amenable to being joined as a party in a proceeding for a declaration under that section, unless it elected to intervene. That proposition may be left for examination in proceedings where the commission is in reality a contradictor. (at p334)
It is also unnecessary to determine whether the conduct referred to in par. (8) of the special case, in the context of the other facts stated in pars. (2) to (10), would or could fall within or without the ambit of s. 47 (9). Unless the legal conclusion flowing from the stated facts cannot be affected by other facts which might occur, the court is constrained to deny a declaration even to parties in real controversy (University of New South Wales v. Moorhouse (1975) 133 CLR, at p 24 ; Swift Australian Co. (Pty.) Ltd. v. South British Insurance Co. Ltd. (1970) VR 368, at p 369 ; and see Attorney-General for Ontario v. Hamilton Street Railway (1903) AC 524, at p 529 and Windsor Refrigerator Co. Ltd. v. Branch Nominees Ltd. (1961) 1 Ch 375, at p 396 ). Arguably, the statement of facts in the special case is not exhaustive. However, as that argument would require some consideration of the operation and effect of s. 47 (9), and as we may subsequently have the benefit of further argument on that section, I should prefer not to observe upon that difficulty. (at p335)
The conclusion at which I have arrived leaves open questions (c) and (d), which were stood over. Question (d) raises the question of the constitutional validity of s. 47 (9) (a). I do not, as at present advised, conceive the answer to that question to depend upon future facts. A challenge to the constitutional validity of a statute may require consideration of an applicant's standing to sue, an issue to which the applicant's freedom to trade as he wishes may be relevant (Toowoomba Foundry Pty. Ltd. v. Commonwealth (1945) 71 CLR 545, at p 570 ), but I would reserve for further consideration the distinction between, or the extent of the coincidence of, the circumstances relevant to determining a party's standing to seek a declaration that a statute is invalid, and the circumstances relevant to determining his entitlement to a declaration that the statute will not be contravened by conduct in which he may engage. (at p335)
In the result, I would answer the first two questions as follows: question (a): No; question (b): Unnecessary to answer. (at p335)

ORDER

Declarations accordingly.

[1978] FCA 19

10 APRIL 1978