Not every dispute needs a coercive order. Sometimes the parties simply need to know where they stand — whether a contract was validly terminated, whether an appointment was lawful, whether a person holds an interest in property.
Where it comes from
Where any question is decided under Order 10 Division 4, the Court shall, subject to Rule 24, either —
(a) cause the decision to be recorded; or
(b) direct the entry of such declaratory judgement, or make such declaratory order, as the nature of the case requires.
Constitution section 155(4) — power to make such other orders as are necessary to do justice in the circumstances of a particular case, read with section 166(1), under which the National Court is a court of unlimited jurisdiction.
Order 12 Rule 1 — the Court may, at any stage, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process.
Order 4 Rule 2(3)(a)
Order 4 Rule 2(1) requires certain proceedings to be commenced by writ — tort, fraud, breach of duty causing death or personal injury, and breach of promise of marriage.
Sub-rule (3) provides that sub-rule (1) does not apply to proceedings commenced by a person who desires to apply for — (a) a declaration of right; (b) an immediate injunction; (c) an immediate appointment of a receiver; or (d) immediate orders under Order 14 Rule 10.
A declaration is a natural fit for an originating summons, and Order 4 Rule 3(2) confirms it: proceedings in which the sole or principal question is one of construction of an Act, instrument, deed, will, contract or other document, or some other question of law, or in which there is unlikely to be a substantial dispute of fact, are appropriate to be commenced by originating summons.
Where the facts turn out to be substantially in dispute, Order 4 Rule 35 allows the Court to order the proceedings to continue on pleadings, whereupon they proceed as if commenced by writ.
Typical cases
| Situation | Why a declaration |
|---|---|
| Construction of a contract clause | Both sides need to know the meaning to perform the contract |
| Whether a termination was valid | Determines rights going forward, not only past loss |
| Whether an appointment or decision was lawful | Often paired with judicial review |
| Whether a person holds an interest in property | Settles title without ordering possession |
| Construction of a will or trust | Guides trustees — compare Order 5 Rule 14, on representation in construction proceedings |
| Whether a rule of customary law applies | Pleaded under Order 8 Rule 20A |
Order 16
Under Order 16, an application for a declaration or an injunction may be made by way of an application for judicial review, and the Court may grant the declaration or injunction claimed if it considers that, having regard to the matters the rule specifies, it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.
This allows a declaration about the lawfulness of an administrative decision to be sought within the judicial review procedure rather than by separate proceedings. Order 16 requires leave and has its own time limit, and judicial review matters are outside the Listings Rules. See judicial review and its time limit.
Note too that under Order 16 Rule 8(3) the interlocutory provisions are without prejudice to any statutory provision or rule of law restricting the making of an order against the State.
What a declaration cannot do
It commands nothing. A declaration states the position; it does not order payment or delivery. Where you need the money, claim the money as well — a declaration alone cannot be enforced under Order 13.
It is discretionary. The Court is not obliged to declare merely because it could.
There must be a real question between real parties. The Court decides disputes, not hypotheticals. Locus standi is a checklist item at the mention, and a proceeding disclosing no reasonable cause of action is exposed to Order 12 Rule 40.
Constitutional interpretation is reserved. Under Constitution section 18(1), the Supreme Court has original jurisdiction to the exclusion of other courts on any question of the interpretation or application of a Constitutional Law, and under section 18(2) other courts shall refer such a question. A declaration is not a way around that. See challenging jurisdiction.
Nothing prevents claiming a declaration and consequential orders. Indeed Order 10 Rule 24 contemplates exactly that: where the decision of a separate question substantially disposes of the proceedings or renders unnecessary any trial, the Court may dismiss the proceedings, direct the entry of any judgement, or make any other order.
So the practical course is usually to seek the declaration together with the consequential relief that flows from it, leaving the Court to decide how much of each is required.
No real dispute. The Court declares rights between parties in controversy. It does not answer academic questions, advise on hypothetical facts, or rule on what the law would be if certain events occurred.
No standing. The plaintiff must have a real interest in the question — the same concern that runs through standing in judicial review.
The wrong parties. A declaration binds those before the Court. If the person whose conduct the declaration is meant to govern is not a party, the declaration may be worthless — see adding a party.
The wrong procedure. Where the real complaint is about the exercise of a statutory power by a public body, the route is Order 16, with its leave requirement and time limit. Seeking a bare declaration by originating summons to sidestep those requirements invites an application to dismiss the proceeding as an abuse of process.
Sources
- National Court Rules 1983 — O 4 rr 2, 3, 35; O 5 r 14; O 8 r 20A; O 10 rr 20–24; O 12 rr 1, 40; O 13; O 16
- Constitution — ss 18, 155(4), 166
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.