Motor Traders Association of New South Wales v Commissioner for Fair Trading

[2005] NSWSC 1132

CITATION:	Motor Traders Association of New South Wales v Commissioner for Fair Trading [2005] NSWSC 1132
HEARING DATE(S):	21 July 2005
JUDGMENT DATE :	9 November 2005
JURISDICTION:	Equity
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	1. I order that the proceedings be dismissed. 2. I order that the Plaintiff pay the costs of the Defendant of the notice of motion filed by the Defendant on 6 May 2005 and of the proceedings.

CATCHWORDS:	Practice and procedure. - Locus standi. - Whether Plaintiff has sufficient interest in subject matter of proceedings. - Interest must be such as to warrant the grant of the relief claimed. - Declaratory relief. - Will not be granted in respect only to a hypothetical question. - Distinction between such declaratory relief and an advisory opinion.
LEGISLATION CITED:	Motor Dealers Act 1974 (NSW) Motor Dealers Regulation 2004 (NSW)
CASES CITED:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Anderson v The Commonwealth (1932) 47 CLR 50 Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247 Boyce v Paddington Borough Council [1903] 1 Ch 109 Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 Galaxy Communications Pty Limited v Paramount Films of Australia Inc [1998] NSWSC 48 Gouriet v Union of Post Office Workers [1978] AC 435 In re Judiciary and Navigation Acts (1921) 29 CLR 257 London Passenger Transport Board v Moscrop [1942] AC 345 Onus v Alcoa of Australia Limited (1981) 149 CLR 27 Rediffusion (Hong Kong) Limited v Attorney General [1970] AC 1136 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] AC 438 Shop Distributive and Allied Employees Association v The Minister for Industrial Affairs (SA) 183 CLR 552 Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 University of New South Wales v Moorhouse (1975) 133 CLR 1 Windsor Refrigerator Co Limited v Branch Nominees Limited [1961] Ch 375
PARTIES:	Motor Traders Association of New South Wales (Plaintiff) Commissioner for Fair Trading (Defendant)
FILE NUMBER(S):	SC 2600 of 2005
COUNSEL:	A. Robertson, SC and A. Gruzman (Plaintiff) R. Henderson (Defendant)
SOLICITORS:	Bamford Associates (Plaintiff) D. Catt (Defendant)

LOWER COURT JURISDICTION:

- 12 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 9 November 2005

SOUTH WALES – v - THE COMMISSIONER FOR FAIR TRADING

JUDGMENT

1 HIS HONOUR: By notice of motion filed on 6 May 2005 the Defendant, the Commissioner for Fair Trading, seeks an order in the following terms,

That the Summons in this matter be dismissed on the ground that the Motor Traders Association of New South Wales has no standing to bring the proceedings.

2 The substantive proceedings were instituted by summons filed on 22 April 2005. Subsequently an amended summons was filed on 11 May 2005, which, as well as amending the form of the relief sought in the summons, also substituted the present Defendant for the Defendant originally named in the proceedings (the Director General of the Office of Fair Trading).

3 By that amended summons the Plaintiff (which is an Australian public company, limited by guarantee) seeks declarations in relation to the meaning and operation of section 32 of the Motor Dealers Regulation 2004 and section 24 (7) of the Motor Dealers Act 1974 in respect of certain specified damage to the panels of motor vehicles and in respect of the repair of such damage by a certain specified procedure. According to the Plaintiff there is a controversy as to the operation of the foregoing legislation in respect of such damage and such repair. The Plaintiff contends that the damage is not prescribed damage of the nature referred to in the foregoing Regulation done to a motor vehicle, whereas the Defendant contends that it is; and further, that such repair is not repair of the nature identified in the said Regulation, whereas the Defendant contends that it is.

4 The factual background to the proceedings is set forth in the affidavit of Sylvain Philippe Bougreau sworn 11 May 2005 and in the affidavit of David John Smith, an officer in the employ of the Plaintiff, sworn 28 June 2005.

5 I have had the benefit of receiving a written outline of submissions from Counsel for the respective parties. Those documents will be retained in the Court file.

6 It is submitted on behalf of the applicant Defendant that the present proceedings raise hypothetical questions and are brought by a party without standing in the matter.

7 In this regard the Defendant points to the absence of evidence of any dispute between the Plaintiff and the Defendant which would be resolved by the making of the declarations sought. According to Mr Smith, the Plaintiff’s own employee, the Plaintiff, in response to those of its members who enquire about their obligation to disclose hail damage, advises them that the Commissioner takes the view that such damage is prescribed damage. The Defendant submits that there is no evidence that would enable an identification to be made of the vehicles which the Plaintiff asserts would be covered by the proposed declarations. Further, that there is no evidence of any connection between the Plaintiff and the vehicles repaired by Mr Bougreau. Further, that there is no evidence as to whether any of those vehicles have been sold, or whether a form of the nature required by the Defendant (Form 13) was or was not supplied to the purchaser of any of those vehicles that had been sold. The Defendant points to the fact that no expert evidence has been provided in respect of the methods used by Mr Bougreau to repair those vehicles.

8 It is the submission of the Defendant that the questions raised by the Plaintiff are hypothetical and abstract, and that what the Plaintiff is doing is, in effect, merely seeking an advisory opinion from the Court about the construction of the Act and of the Regulation. It is submitted that the declarations sought in the amended summons must be refused.

9 Moreover, the Defendant submits that, even if it were permissible for an application of the nature of that made by the amended summons to be made to the Court for the construction of the relevant provisions of the Regulation and the Act, the Plaintiff does not have the standing to make such an application. The Defendant in this regard relies upon the following matters. The Plaintiff is not a motor dealer and is therefore not affected by any obligation to supply a Form 13. The Plaintiff cannot acquire standing in the matter merely by virtue of the fact that some of its members are motor dealers. The Plaintiff’s initiatives in making submissions to Government and public authorities on matters in which its members are interested do not suffice to endow it with standing to bring the present proceedings. The Plaintiff has no statutory role under the Act. The Plaintiff has not established that it has a special interest in the subject matter of the proceedings.

10 The Plaintiff, however, submits that it has standing to bring the present proceedings because of the following matters:

· The Plaintiff is the peak body of motor vehicle dealers in New South Wales.

· A dispute has arisen in relation to the obligation imposed by New South Wales legislation on those motor vehicle dealers and thus the rights of those dealers.

· The Plaintiff’s members consult it in relation to those obligations and rights.

· The Defendant has engaged in discussion with the Plaintiff in relation to those obligations and rights, both specifically and generally in relation to the Act and Regulations.

· The Plaintiff’s Code of Ethics requires its member and the Plaintiff to know and understand the obligations imposed by the legislation in respect of hail damage.

· There is a public interest in the observance by the Defendant of limitations upon its activities and indeed there is a public interest in the Plaintiff and the Defendant having the Court determine the correct interpretation of the statutory provisions in relation to which the Defendant is exercising its statutory powers.

11 Further, it is submitted on behalf of the Plaintiff that its asserted sufficient material interest in the subject matter constitutes an enabling, not a restrictive, procedural stipulation.

12 The present application for dismissal of the summons is made on the express ground that the Plaintiff has no standing to bring the proceedings. Accordingly, I shall proceed to a consideration of that ground. The obligations imposed by section 24 of the Act and by clause 32 of the Regulation are imposed upon a person carrying on the business of a dealer (as defined in section 4(1) of the Act). It is not suggested that the Plaintiff is a dealer, although a number of its members presumably are dealers. Accordingly, the obligations imposed by the foregoing provisions of the Act and the Regulation do not create any duties or liabilities in the Plaintiff.

13 The evidence tendered on behalf of the Plaintiff does not disclose any connection between the Plaintiff and the motor vehicles referred to in Mr Bougreau’s affidavit.

14 The High Court of Australia has had occasion to express its views concerning this question of standing in a number of decided cases. A leading authority in this field is Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 (at 504 per Aickin J, at first instance; and especially at 526f per Gibbs J (as he then was); and at 547f per Mason J). At 530 Gibbs J said,

“A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi ”.

15 Of that passage, with which he expressly agreed, Mason J (as he then was) said, at 548,

“In this difficult field there is one proposition which may be stated with certainty. It is that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi in a case of the kind now under consideration.”

16 His Honour also said, at 547,

I also agree with Gibbs J that, apart from cases of constitutional validity which I shall mention later, a person, whether a private citizen or a corporation, who has no special interest in the subject matter of the action over and above that enjoyed by the public generally, has no locus standi to seek a declaration or injunction to prevent the violation of a public right or to enforce the performance of a public duty.
Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests (as to which see New South Wales Fish Authority v Phillips [1970] 1 NSWR 725) and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v Western Australian Museum (1977) 138 CLR at 327-328: “The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another.”

17 After reviewing a number of authorities in the United States in America, Mason J continued, at 551,

“Plainly enough the view of standing which they [the American authorities] embrace rests as much on a general legal concept of locus standi and relevant practical considerations as on Art. III. The consequence is that I regard the United States decisions as providing persuasive guidance to the extent to which they decide that the concept of locus standi does not extend to embrace a mere belief on the part of a plaintiff who suffers no injury or damage in consequence of the executive action of which he complains”.

18 In Shop Distributive and Allied Employees Association v The Minister for Industrial Affairs (SA) (1995) 183 CLR 552 the High Court (constituted by Brennan, Dawson, Toohey, Gaudron, and McHugh JJ) said, at 558,

“The question of standing may be disposed of shortly. The union has a large number of members who are employed as shop assistants, many of them in the Central Shopping District. The Act confers no private rights and neither those employed as shop assistants in the Central Shopping District nor the union can have standing to bring an action to compel observance of the Act – to prevent the violation of a public right – unless they can establish the existence of a special interest in the subject matter of the litigation. That is in accordance with the rule established in Australian Conservation Foundation v The Commonwealth which was stated by Gibbs CJ in Onus v Alcoa of Australia Limited (1981) 149 CLR 27 at 35-36 to be as follows:
“A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action.”
The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest.

19 The English authorities concerning the question of standing were fully reviewed in Gouriet v Union of Post Office Workers [1978] AC 435, where the House of Lords reaffirmed that a private individual has standing to seek a declaration or an injunction to enforce a public right or prevent a public wrong only in the cases mentioned in Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114. In Australian Conservation Foundation Gibbs J said, at 527,

The general principle stated in Gouriet v Union of Postal Workers [sic] , that a private person, who is in the same situation as any other member of the public, has no standing to claim either an injunction or a declaration to enforce a public right or duty, has been consistently applied in this Court.

20 Gibbs J, whilst recognising that the general rule is clear, said that the formulation of the exceptions to it which Buckley J made in Boyce v Paddington Borough Council was not altogether satisfactory. His Honour continued,

However, the expression “special damage peculiar to himself” in my opinion should be regarded as equivalent in meaning to “having a special interest in the subject matter of the action”. The words appear to have been understood in this sense by Viscount Maugham in London Passenger Transport Board v Moscrop [1942] AC at 345, and by Lord Wilberforce and Lord Edmund–Davies in Gouriet v Union of Post Office Workers . In this Court, the law was stated in a way that supports that view in Anderson v The Commonwealth (1932) 47 CLR 50.

21 In Anderson Gavin Duffy CJ, Starke and Evatt JJ said, at 51-52,

But the Agreement made by the Commonwealth and its prohibition, affect the public generally and the plaintiff has no interest in the subject matter beyond that of any other member of the public: he has no private or special interest in it. Great evils would arise if every member of the Commonwealth could attack the validity of the acts of the Commonwealth whenever he thought fit; and it is clear in law that the right of an individual to bring such an action does not exist unless he establishes that he is ”more particularly affected than other people” (see Brice on Ultra Vires , 2 ed., 366).

22 In Australian Conservation Foundation Gibbs J, having reviewed all the relevant authorities on this topic, concluded by saying , at 528, “the broad test of special interest is, in my opinion, the proper one to apply”.

23 In Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247 Gaudron, Gummow, and Kirby JJ in a joint judgment carefully reviewed this question of standing and earlier relevant authorities (260-267). They quoted with approval (at 266) the following statement by Aickin J in Australian Conservation Foundation, at 511,

The “interest” of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed … [T]he plaintiff’s interest should be one related to the relief claimed in the statement of claim.

24 The decision of the High Court of Australia in Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 concerned the power of the Commonwealth Parliament, in legislating with respect to a subject matter specified in section 51 of the Constitution, to provide for the judicial enforcement of the law at the suit of any person.

25 Consonant with the foregoing principles and views expressed by the High Court of Australia, it seems to me that the present Plaintiff, in order to establish that it has the standing to bring the present proceedings, must establish an interest in the subject matter of the proceedings such as to warrant the grant of the relief claimed. It becomes necessary, therefore, not only to look to the nature of the controversy or dispute before the Court but also to consider the relief claimed by the Plaintiff in the amended summons.

26 I have already observed that there is no evidence of any dispute between the Plaintiff and the Defendant, although there may be a dispute between individual dealers and the Defendant. Neither is there any evidence that would enable an identification to be made of the vehicles which would be affected by the proposed declaration. Neither is there any evidence of any connection between the Plaintiff and the vehicles referred to by Mr Bougreau as having been repaired by him. Further, there is no evidence as to whether any of those vehicles have, in fact, been sold, or whether a Form 13 was or was not supplied to the purchaser of any of those vehicles which might have been sold. Apart from the evidence of Mr Bougreau, there is no evidence concerning the manner of the repairs effected to those motor vehicles.

27 In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Mason CJ, Dawson, Toohey, and Gaudron JJ, in a joint judgment, said, at 581, concerning the power to grant declaratory relief,

It is a discretionary power which “[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise” ( Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 437 per Gibbs J). However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions (see In re Judiciary and Navigation Acts (1921) 29 CLR 257). A person seeking relief must have “a real interest” ( Forster , at 437 per Gibbs J; Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438 at 448 per Lord Dunedin) and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” ( University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10 per Gibbs J) or if “the Court’s declaration will produce no foreseeable consequences for the parties” ( Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180at 188 per Mason J; see also at 189 per Aickin J).

28 In Galaxy Communications Pty Limited v Paramount Films of Australia Inc [1998] NSWSC 48 (27 March 1998, unreported) Stein JA (with whom Priestley and Meagher JJA agreed) said, at [27],

It is an important feature of declaratory relief that it be a flexible and discretionary remedy ( Forster v Jododex Pty Limited) . [After referring to Ainsworth and University of New South Wales v Moorhouse , his Honour continued] I am conscious, in approaching this matter, that the considerations mentioned by the High Court in Ainsworth are guidelines rather than binding rules…
The reluctance of the courts to deal with hypothetical questions is well illustrated by a short but eloquent quotation from the speech of Harman LJ in Windsor Refrigerator Co Limited v Branch Nominees Limited [1961] Ch 375 at 396,
“It is highly undesirable that the court should be constrained to tie itself in so many knots, and in the end merely say: “Well, if this was thus, then that was so”.”

29 In Rediffusion (Hong Kong) Limited v Attorney General [1970] AC 1136 Lord Diplock stated that the courts “will not pronounce upon legal situations which may arise but generally upon those which have arisen”.

30 In the instant case I do not agree with the submission made on behalf of the Defendant that the Plaintiff is seeking an advisory opinion from the Court. However, it is quite clear that the Plaintiff is seeking declaratory relief concerning a hypothetical question, since there is not any present dispute between either the Plaintiff itself and the Defendant or between any of the constituent members of the Plaintiff and the Defendant. (As to the distinction between an advisory opinion and declaratory relief concerning a hypothetical question, see Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 at 355-356 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.)

31 The Plaintiff’s submission that the standing of the Plaintiff to bring the proceedings is distinct from whether the relief sought by it is in respect only to a hypothetical question is contrary to what Aickin J said in Australian Conservation Foundation, at 511, in the passage which I have already quoted.

32 It is abundantly clear upon the authority of the High Court of Australia in Australian Conservation Foundation and in Bateman’s Bay Local Aboriginal Land Council that the entitlement of a plaintiff to relief of the nature which that plaintiff seeks is fundamental to the question as to whether that plaintiff has a special interest in the subject matter of the proceedings sufficient to give to it the standing to bring and maintain the proceedings.

33 Consonant with the foregoing principles enunciated by the High Court of Australia concerning the granting of declaratory relief, I am not satisfied that the Plaintiff has established its entitlement to declaratory relief in the circumstances of this case.

34 The conclusion which I have just expressed is of significance in resolving the question of whether or not the Plaintiff has the standing to bring the present proceedings. It emerges from the various authorities relating to the standing of a party, especially the decisions of the High Court of Australia from which I have already quoted, that the question of standing must be decided in the context of the relief sought. If the Plaintiff is not entitled to relief of the nature sought in the amended summons, then, in my conclusion, the Plaintiff lacks the standing to bring the present proceedings.

35 I am not persuaded that any of the matters relied upon by the Plaintiff establish the entitlement of the Plaintiff to relief of the nature sought in the present proceedings.

36 Since the Plaintiff in my conclusion is not entitled to declaratory relief of the nature sought in the amended summons, I consider that the Plaintiff does not have a special interest in the subject matter of the proceedings sufficient to give to it standing to bring the proceedings. It follows, therefore, that the proceedings should be dismissed.

37 I make the following orders:

1. I order that the proceedings be dismissed.
2. I order that the Plaintiff pay the costs of the Defendant of the notice of motion filed by the Defendant on 6 May 2005 and of the proceedings.