To Declare or Not to Declare…

To be, or not to be: that is the question: Whether ‘tis nobler in the mind to suffer The slings and arrows of outrageous fortune; Or to take arms against a sea of troubles, And by opposing end them?

To Declare, or Not to Declare:

His Honour Justice Hammerschlag (c.f. Hamlet) was posed with the question of whether to declare or not to declare in these proceedings. A copy to the judgment is here.

The moral of the case is, simply put, to not approach the Court seeking futile declarations.

It was a contest between Landlord and Tenant. But it was not of the nature of David and Goliath. Instead it was a contest between two sophisticated and well resourced parties.

The First Plaintiff (Landlord) is the trustee of a listed management investment scheme (and the Second Plaintiff is the responsible entity). The Defendant (Tenant) is an ASX200-listed technology company and is Australia’s leading independent data centre operator with a nationwide network of data warehouse facilities.

The Facts

Three identical long term leases were in place for premises in Macquarie Park, Port Melbourne and Malaga from which the Tenant operates secure data facilities.

The dispute was over rights to access. The parties took different positions on the proper construction and operation of the provisions of the leases.

By the time of the hearing, the Landlord, with leave, filed a Second Further Amended Summons seeking a further “raft of declarations”. Overnight, it sought to file a Third Further Amended Summons, also seeking declarations (leave in part was granted).

The Court’s Findings

The Court said it would be “inappropriate” for a Court to make the declarations sought. It was clear in its refusal of the declarations sought. The reasons for refusing to make the declarations included the following (shopping list length) of reasons.

  • They are purely theoretical.
  • They are inutile.
  • They seek to declare the meaning and operation of clauses in a vacuum, without reference to any actual factual circumstance let alone any prevailing one.
  • Making them will produce no foreseeable consequences for the parties.
  • No breach of any provision of the leases by the Tenant is alleged.
  • No assessment of the quality of the Tenant’s conduct (or the Landlord’s conduct for that matter), in the context of their legal relationship, is called for.
  • To make them would not resolve or quell any dispute about access because there is no extant request for access to the premises and no denial of any request. The Landlord may never again properly ask for access and, if it does, the Tenant may give it.
  • They seek, impermissibly, a legal advisory opinionBass v Permanent Trustee Company Limited (1999) 198 CLR 334 at [47]-[49].

Declarations, in a nutshell

The judgment serves as a helpful reminder that declaratory relief is not an open invitation to seek the kitchen sink but must be within acceptable bounds, including the following requirements:

  • Declarations should have utility.
  • Declarations should not be purely theoretical.
  • Declarations should not seek a legal advisory opinion.
  • Declarations must concern a justiciable controversy (for State matters).

Further materials

An excellent analysis of the place of declarations is contained in the speech by the former Chief Justice French entitled, Declarations – Homer Simpson’s remedy – Is there anything they cannot do? A copy is here.


This is a unique website which will require a more modern browser to work!

Please upgrade today!