The Declaratory Judgments Act – a widening jurisdiction

The Declaratory Judgments Act was enacted well over 100 years ago now; yet the jurisprudence over the nature and breadth of the jurisdiction continues to develop. Recently, in Mandic v Cornwall Park Trust Board Inc [2011] NZSC 195, the Supreme Court rejected the “requirement” that there be an active dispute or lis for the jurisdiction to be available. The Court of Appeal in that case had prefaced its determination with observations about the scope of the jurisdiction under the Declaratory Judgments Act, referring to it as being one of “limited availability” and considering that an applicant would normally have to “establish the existence of a genuine dispute or a lis” and overcome the “threshold” of being able to point to “an actual controversy between the parties which cannot be more appropriately determined in another forum, such as arbitration”.

The Chief Justice referred to the Court of Appeal’s approach as suggesting a narrower jurisdiction than is suggested by the language of s 3 of the Declaratory Judgments Act. She emphasised that s 3 contains its own threshold for jurisdiction. That section provides that any person who has done or desires to do any act, the legality of which depends on the construction of any statute or any regulation or to have a right under any statute or regulation or to be otherwise interested in the construction or validity of a statute or regulation, may apply to the High Court for a declaratory order determining any question as to the construction or validity of the statute or regulation. Once that threshold is met, the Court said “access to the jurisdiction does not depend on there being an existing dispute. Nor is it necessary that there be a lis”.

In Marlborough Lines Limited v Cassels [2012] NZHC 9, Williams J, taking on board the Chief Justice’s comments in Mandic indicated that, without reading additional requirements into s 3, the courts will approach applications for declarations on purely hypothetical scenarios with caution, having regard to the Supreme Court’s 2008 decision in Gordon Smith v Capital R [2009] 1 NZLR 721 from [13] where the Court referred to the importance of the adversarial nature of the appellate process, the need for economy in the use of limited resources of the courts and the need to show sensitivity to the role of government.

With that in mind, Williams J made a range of declarations about the application of certain regulations relating to the trimming of trees on private land by electricity lines companies, including in cases where, while there was no live factual scenario, the issues raised were able to be dealt with as a question of statutory interpretation in a way that was not fact dependent.

Ronald Young J however took a more restrictive approach recently in Taueki v Crown Forestry Rental Trust HC WN CIV 2011-485-1497, 17 February 2012 in finding that the plaintiff, in challenging funding decisions by the Trust for a tribal authority, did not have standing to seek a declaratory order because the Trust, being charitable, did not have individual beneficiaries. While a question of standing rather than jurisdiction generally, the approach tends to cut across the Chief Justice’s comments in Mandic that access to the declaratory jurisdiction does not depend on there being an existing dispute. The broad discretionary nature of the relief available under the Declaratory Judgments Act continues therefore to be reflected in the breadth of the different approaches to its application.

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