The Federation Press

Perspectives on Declaratory Relief

Overview

In Sankey v Whitlam (1978) 142 CLR 1 at 25, Gibbs ACJ remarked that: “The power to make declaratory orders has proved to be a valuable addition to the armoury of the law.”

Declaratory proceedings are practical and remain one of the most popular remedies in both civil, commercial and public law litigation. In the past few years, the declaration was the remedy sought in a number of high profile cases, including the constitutional challenge to the Workchoices legislation, the AWB privilege claims, the Channel 7 litigation and as to the status of certain proofs of debt in the Sons of Gwalia insolvency. But despite its regular and broad practical application, no Australian work on the subject has been published since 1984.

This book is a collection of papers by eminent Australian jurists on the law of, and major issues involved in obtaining, declaratory relief. They address major questions about declaratory relief, including the jurisdiction and power to award the remedy, its development, historical origins and the discretion vested in a court hearing an action for declaratory relief. It also addresses practical aspects such as the form or terms of the declaration to be ordered and provides some precedents.

All royalties from this work are being directed towards the Indigenous Legal Scholarship program at the University of Western Australia, Law School.

Table of Contents

Foreword - The Hon Justice Peter Young AO
Justice of the Court of Appeal

Introduction
Kanaga Dharmananda, Barrister
Anthony Papamatheos, Solicitor

Declaratory relief since the 1970s
The Hon Chief Justice Wayne Martin, Supreme Court of Western Australia

Declarations: Homer Simpson’s Remedy – Is there anything they cannot do?
The Hon Chief Justice Robert French, High Court of Australia

The history of declaratory relief – a distinct remedy beyond equitable affiliations
The Hon Justice Eric Heenan, Supreme Court of Western Australia

Commentary
The Hon Justice Neil McKerracher, Federal Court of Australia

The form and effect of declaratory relief and the negative declaration
The Hon Daryl Williams AM QC, Barrister

What we mean by discretion and the place of discretion in declaratory relief
Grant Donaldson SC, Barrister

Commentary
Richard Hooker, Barrister

Staying declaratory relief
Jeremy Birch, Solicitor

Declaratory relief – the same yesterday, today and tomorrow
The Hon Justice Michelle Gordon, Federal Court of Australia

Of interest...