Commonwealth of Australia v BIS Cleanaway Limited [2008] NSWCA 170

Commonwealth of Australia v BIS Cleanaway Limited [2008] NSWCA 170

Leave to appeal was refused because, despite some doubts about aspects of the primary judge's reasoning, the proceedings sought bare, general declarations without any pleaded past, present or threatened breach, claim or expense; the declarations would not finally resolve disputes between the parties and would likely require piecemeal determination of interrelated future issues; there was insufficient doubt about the correctness of the dismissal and refusal of leave would not cause substantial injustice, particularly because future proceedings would not be barred if a relevant breach, claim or expense later arose.

Jurisdiction
Australia
Judgment Date
23 July 2008
Procedural Posture
Application for Leave to Appeal From Orders Summarily Dismissing Proceedings Seeking Declarations / New South Wales Court of Appeal Ex Tempore Judgment
Outcome
Leave to appeal dismissed with costs.
Legal Topics
['declarations' 'summary Dismissal' 'leave to Appeal' 'lack of Utility' 'piecemeal Determination of Related Issues' 'novation of Licence Obligations']
['equity' 'practice and Procedure'] ['declarations' 'summary Dismissal' 'leave to Appeal' 'lack of Utility' 'piecemeal Determination of Related Issues' 'novation of Licence Obligations']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application for Leave to Appeal From Orders Summarily Dismissing Proceedings Seeking Declarations / New South Wales Court of Appeal Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the summary dismissal of proceedings seeking only declarations about a novated licence.' 'Whether the declarations sought were so hypothetical or lacking in utility that declaratory relief could not appropriately be granted.' 'Whether related issues concerning any breach, claim, expense, termination or scope of obligations should be determined separately from any later substantive claim.']

Ratio Decidendi

Leave to appeal was refused because, despite some doubts about aspects of the primary judge's reasoning, the proceedings sought bare, general declarations without any pleaded past, present or threatened breach, claim or expense; the declarations would not finally resolve disputes between the parties and would likely require piecemeal determination of interrelated future issues; there was insufficient doubt about the correctness of the dismissal and refusal of leave would not cause substantial injustice, particularly because future proceedings would not be barred if a relevant breach, claim or expense later arose.

Court Disposition

Leave to appeal dismissed with costs.

Orders

  • ['The application for leave to appeal is dismissed with costs.']