Kingswood College v Dunn - [2000] WASC 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KINGSWOOD COLLEGE & ANOR -v- DUNN [2000] WASC 125

CORAM: MASTER SANDERSON

HEARD: 8 MAY 2000

DELIVERED : 16 MAY 2000

FILE NO/S: CIV 1672 of 1997

BETWEEN: KINGSWOOD COLLEGE
First Plaintiff
COLIN RAYMOND HONEY
Second Plaintiff
AND
JOHN MORRIS DUNN
Defendant

Catchwords:

Practice and procedure - Application for trial of preliminary issue - Turns on its own facts

Legislation:

Rules of the Supreme Court, O 32 r 4

Result:

Application dismissed

Representation:

Counsel:

First Plaintiff                :     No appearance
Second Plaintiff            :     Mr L A Stein
Defendant:     Mr E M Corboy

Solicitors:

First Plaintiff                :     No appearance
Second Plaintiff            :     Kitto & Kitto
Defendant:     Freehill Hollingdale & Page

Case(s) referred to in judgment(s):

Ainsworth v Criminal Justice Commission (1992) 66 ALJR 271
Bond v Sulan (1990) 98 ALR 121
Johns v Australian Securities Commission (1993) 178 CLR 408
Rivers v Bondi Junction - Waverley RSL Sub Branch Ltd (1986) 5 NSWLR 362
Thorne v Motor Trade Association [1937] AC 797

Case(s) also cited:

Annetts v McCann (1990) 170 CLR 596
Brechin v Shire of Brookton [1999] WASC 3
Church of Scientology v Woodward (1982) 43 ALR 587
Eastham v Newcastle United Football Club Ltd [1964] Ch 413
Gibson v Union of Shop, Distributive and Allied Workers [1968] 1 WLR 1187
Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43
Merricks v Nott-Bower [1965] 1 QB 57
Rediffusion (Hong Kong) Ltd v A-G (Hong Kong) [1970] AC 1136
Smith v Maloney (1998) 19 WAR 209
Stirling Marine Services Pty Ltd v Austral Piling & Constructions Pty Ltd, unreported; SCt of WA (Master Sanderson); Library No 970620; 21 November 1997
Wilcox v Kogarah Golf Club Ltd (1996) 14 ACLC 421

MASTER SANDERSON: This is the defendant's application for the trial of a preliminary issue. The application is brought under the provisions of O 32 r 4. That rule reads as follows:
"The Court may order that any question or issue arising in a cause or matter whether of law or fact or partly of law and partly of fact, and whether raised by pleadings or by agreement of the parties or otherwise be tried separately from any other question or issue whether before or after the trial or further trial of the proceedings, and may direct that a case and the question or issue for decision be stated."
The facts giving rise to this claim may be summarised as follows. As at May 1997 the second plaintiff was the Master of Kingswood College, a residential college attached to the University of Western Australia. Kingswood College is incorporated as an instrumentality of the Uniting Church of Australia, pursuant to statute. The defendant was at all material times the Moderator of the Western Australian Synod of the Uniting Church in Australia and was Visitor to the college.
In late May 1997 the defendant in his capacity as Visitor suspended the operations of the College Council and suspended the second plaintiff as Master. In these proceedings it is alleged by the second plaintiff that, in taking these two steps, the defendant acted unlawfully, in as much as he operated beyond his powers as Visitor. The second plaintiff seeks, by his substituted statement of claim, two declarations that the defendant's conduct was unlawful. The second plaintiff also sought injunctive relief directed at ensuring the second plaintiff could continue in his position as Master of the College.
The second plaintiff also issued separate proceedings against Kingswood College as defendant: CIV 2089 of 1997. These proceedings were settled and the terms of settlement were embodied in a deed dated 23 November 1998. As a consequence of that deed the second plaintiff was retired from his position as Master of the College. Although the statement of claim in this action has not been amended, the claim for injunctive relief has fallen away. What is left then is the second plaintiff's claim in relation to the alleged unlawful conduct by the defendant.
On 16 November 1999 the defendant amended his defence by including a new par 11. That paragraph reads as follows:
"11The defendant says further that this Honourable Court should, in the exercise of its discretion, decline to grant the relief claimed by the defendant or any relief at all on the grounds that there would be no utility in granting any such relief as:
(a)in the circumstances particularised below, the second plaintiff's claim raises only a theoretical question:
(b)the second plaintiff does not have a real interest (either current or future) in having this claim determined as determination of this claim will not affect the second plaintiff's legal rights or commercial or personal interests, now or in the future;
(c)the relief sought by the second plaintiff will have no, or no practical consequence for the legal rights of the second plaintiff or the defendant;
(d)the second plaintiff has pursued alternative remedies available to him and has settled any claims he may have had arising from the suspension and termination of his employment as Head of the College and in respect of his termination as member of and secretary to, the Council (the suspension and termination of his employment).
Particulars
(1)All of the acts about which the second plaintiff complains were undertaken by the defendant in his capacity as Visitor to the College and/or as Moderator of the Western Australian Synod of the Uniting Church;
(2)The defendant no longer holds either the position of Moderator of the Western Australian Synod of the Uniting Church or Visitor to the College. Further, the Council has resumed its former role as the body responsible for managing the College;
(3)The second plaintiff's employment as Head of the College and as a member of and secretary to the Council has been terminated;
(4)The second plaintiff had alternative remedies available to him in respect of the suspension and termination of his employment which he has pursued with the result that he has settled any claims he might have had arising out of the suspension and termination of his employment."
It is against that background that the defendant seeks to have trial of a preliminary issue. The question to be put to the court as framed by the defendant and as it appears in the defendant's submissions, is in the following terms:
"Assuming for the purposes of this hearing that the facts pleaded by the second plaintiff are true, will the Court grant relief claimed by the second plaintiff having regard to the matters pleaded in paragraphs 11 to 13 of the defendant's defence?"
The defendant's position can be summarised in the following way. The defendant denies that his conduct was unlawful. But even if the conduct was unlawful, on the facts as pleaded, the defendant says that the remedy of declarations as sought in the statement of claim would not be granted. Essentially, the defendant says this is because such declarations are of no utility and the court will in the exercise of its discretion decline to grant relief. This is an issue which it is said can be simply disposed of and which will take no more than a day to argue. Because of the concession made by the defendant for the purposes of trial of the preliminary issue - that is to say the concession that the defendant's conduct was unlawful - no evidence will need to be led. If the defendant is successful that is the end of the matter and all parties will save cost and expense. If the defendant is unsuccessful, so the defendant submits, there is a greater prospect of settlement being reached and that in itself supports an order for trial of a preliminary issue.
The second plaintiff opposes the defendant's application on a number of different grounds. However, the prime submission is that a decision whether or not to grant a declaration is discretionary and can only be made after all of the evidence has been led and all of the circumstances surrounding the events leading to the second plaintiff's suspension have been considered. It was common ground between the parties that declaratory relief, although not strictly an equitable remedy, is nonetheless discretionary.
As a broad statement of principle declaratory relief will not be granted when to do so would serve no good purpose: see Rivers v Bondi Junction - Waverley RSL Sub Branch Ltd (1986) 5 NSWLR 362. However, there are numerous cases where a declaration has been made where it would have no possible effect on the legal rights of the parties to the proceedings. Johns v Australian Securities Commission (1993) 178 CLR 408 is but one example of such a case. In Ainsworth v Criminal Justice Commission (1992) 66 ALJR 271 the majority, Mason CJ, Dawson, Toohey and Gaudron JJ, said that declaratory relief must be directed to the determination of legal controversies and not to answering abstract and hypothetical questions, that the person seeking relief must have a real interest, and that relief will not be granted if the question is purely hypothetical or the declaration would produce no foreseeable consequences for the parties. Of course, as the remedy is discretionary it is inappropriate to attempt to set limits to that discretion. But the High Court has given a firm indication of when relief will be available.
Even the most cursory review of the authorities will reveal the differing views taken by Judges as to when discretion should be exercised to grant a declaration even though the relief may have no practical effect: Thorne v Motor Trade Association [1937] AC 797 and Bond v Sulan (1990) 98 ALR 121 demonstrates that the passing of time has not pushed the courts towards making a declaration rather than not. Perhaps the position is best illustrated by reference to Johns v Australian Securities Commission, supra. After the High Court determined that the appellant was right in his argument that certain transcripts ought not to have been released to the Criminal Justice Commission, the question was what should be done, given the transcripts had already been released. Justices Brennan and Dawson would have made the declaration. Justices Gaudron and McHugh felt the matter should be referred back to the Federal Court to determine whether or not relief ought be granted - this, when a court had available the transcript of the case of first instance and on appeal to the Full Federal Court. There was clearly a wide gulf between the views of the various Justices. This indicates just how important the facts of a particular case are to whether or not relief ought be granted.
In the circumstances then, it seems to me that all of the evidence to be led by the second plaintiff must be before the court to allow the trial Judge to determine whether or not as a matter of discretion a declaration ought be made. It may be the nature of the evidence itself which determines how the discretion is exercised. That being the case, I am not satisfied that this is a proper action for trial of a preliminary issue.
During the course of argument one of the matters raised by the second plaintiff was the prospect that relief might be granted because it would have the effect of protecting his reputation. In an affidavit filed in opposition to the application the second plaintiff suggested that his future employment prospects and his academic advancement might be adversely affected if the declarations sought were not made. Counsel for defendant pointed out that there was no plea to the effect that the alleged unlawful conduct had in any way affected the second plaintiff's employment prospects or his academic reputation and accordingly this was not a factor to be considered in determining whether or not trial of a preliminary issue should be ordered. In the event, it seems to me that as a matter of general principle trial of a preliminary issue is not appropriate in a case such as this. It was not then necessary for me to deal with the specifics of this case. Furthermore, this is not a pleading summons and the question of what the second plaintiff must plead to entitle him to declaratory relief in the circumstances of this case was not fully ventilated. Having said all of that, it does seem to me that if it is the second plaintiff's intention to seek relief at the discretion of the trial Judge, based in part on the second plaintiff's need to protect his reputation, then that should be pleaded. The defendant may wish to attempt to show that the outcome of these proceedings will have no real effect on the second plaintiff's employment or academic standing. If that is to be an issue between the parties it should be squarely before the court on the pleadings.
In all the circumstances, I am satisfied that this application should be dismissed. I will hear the parties as to the precise form of the orders and as to costs.