VB v Chief Executive Officer of the Department of Communities

In the case of VB v Chief Executive Officer of the Department of Communities, the appellant sought to challenge a decision of the Department of Communities to cancel a care placement arrangement for a child. The primary judge found that the decision was infected by jurisdictional error, as the Department had failed to seek the views of the child before making the decision. The appellant argued that the primary judge erred in failing to consider whether to grant declaratory relief as to the unlawfulness of the decision. The Court of Appeal considered whether the primary judge had exercised her discretion to decline to grant declaratory relief, and whether such relief should be refused on discretionary grounds of lack of utility and the availability of a more suitable alternative remedy.

The court found that the primary judge had considered the issue of whether to grant declaratory relief, and had declined to do so on discretionary grounds. The court noted that the primary judge had referred to the relief sought by the appellant, including declaratory relief, and had considered the respondents' submissions that the appellant had a suitable alternative to challenge the decision by way of the process set out in s 91-95 of the Act. The court held that the primary judge had exercised her discretion to decline to grant declaratory relief, and that there was no error in that decision.

In reaching its decision, the court relied on the principle established in Federal Commissioner of Taxation v Futuris Corporation Ltd, that the discretion to withhold relief in judicial review proceedings on the ground that there was an adequate alternative remedy also applied to declaratory relief. The court noted that in Futuris, the Federal Court had declared a taxation assessment to be invalid, but had declined to grant declaratory relief in the circumstances because of the pendency of a statutory merits review of the assessment. The court held that the same principle applied in this case, and that the primary judge had correctly declined to grant declaratory relief on discretionary grounds.

The court noted that the primary judge had concluded that the best interests of the child were served by declining to make any orders as a consequence of the error of law identified. The court held that the primary judge had correctly exercised her discretion to decline to grant declaratory relief, and that there was no error in that decision. The appeal was therefore dismissed.