Dorf Industries P/L & Ors v. The Hon. RP Toose CBE QC & Ors [1994] FCA 986

Dorf Industries P/L & Ors v. The Hon. RP Toose CBE QC & Ors [1994] FCA 986

It is an inappropriate exercise of the Court's discretion to grant the declaration sought where a specialist tribunal (the ASC) has determined the issue, and the applicant seeks only a declaration without pursuing judicial review or quashing of the ASC's decision; such a declaration would result in conflicting determinations and there is no proper contradictor before the Court.

Parties
Applicant: Dorf Industries Pty Limited; Applicant: Box Emery & Partners (A Firm); First Respondent: Honourable P B Toose CBE QC (representing members of the Advertising Standards Council); Second Respondent: Australian Consolidated Press Limited (representing members of the Media Council of Australia); Third Respondent: Nine Network Australia Ltd and General Television Corporation Pty Ltd (the 9 Network)
Jurisdiction
Australia
Judgment Date
09 December 1994
Procedural Posture
Application for Declaratory and Injunctive Relief / Interlocutory Application—judgment on Claim for Declaration
Outcome
Application for declaration dismissed—no declaration granted
Legal Topics
Regulation of Advertising Content, Jurisdiction for Declaratory Relief, Functions of Regulatory Bodies, Judicial Review of Self Regulatory Decisions
Media Law Administrative Law Regulation of Advertising Content Jurisdiction for Declaratory Relief Functions of Regulatory Bodies Judicial Review of Self Regulatory Decisions

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Parties

Dorf Industries Pty Limited

Applicant

Box Emery & Partners (A Firm)

Applicant

Honourable P B Toose CBE QC (representing members of the Advertising Standards Council)

First Respondent

Australian Consolidated Press Limited (representing members of the Media Council of Australia)

Second Respondent

Nine Network Australia Ltd and General Television Corporation Pty Ltd (the 9 Network)

Third Respondent

Procedural Posture

Application for Declaratory and Injunctive Relief / Interlocutory Application—judgment on Claim for Declaration

Legal Issues

  1. 1 Whether the Court should grant a declaration that the Dorf television advertisements do not breach Clause 6 of the Advertising Code of Ethics by seriously offending community values
  2. 2 Whether it is appropriate to grant declaratory relief in the circumstances where a specialist tribunal (ASC) has already made a decision
  3. 3 Whether the regulatory requirement to obtain ASC/FACTS approval constitutes an unlawful restraint of trade

Ratio Decidendi

It is an inappropriate exercise of the Court's discretion to grant the declaration sought where a specialist tribunal (the ASC) has determined the issue, and the applicant seeks only a declaration without pursuing judicial review or quashing of the ASC's decision; such a declaration would result in conflicting determinations and there is no proper contradictor before the Court.

Court Disposition

Application for declaration dismissed—no declaration granted

Orders

  • Application for declaration declined; applicants' right to revive the claim in conjunction with other relief reserved; parties to be heard on costs.