Published on 7/06/2007

Access to Court & Judicial Remedies

1.    TYPES OF JUDICIAL REMDIES

Prerogative Remedies
-    Mandamus – we command  we want an order of mandamus forcing the person to make a decision in accordance with the law. Or want an order now
-    Prohibition – Stop a decision from being made. If you had found out about the decision earlier, we could have granted remedy of prohibition, but too late
-    Habeas Corpus – stopping access to ct; detainment
-    Certiorari – decision affected by unlawfulness, therefore will be set aside. It is as if the decision was never made, becomes null and void. Then it goes back to the decision maker. The minister has to make the decision in accordance with the law. It is an effective remedy because theoretically the decision-maker can’t make the same decision again.

Equitable Law remedies (Private Law remedies)
-    injunction
-    declaration

1.1    Remedies at General Law and under Commonwealth Constitution

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Facts: Ainsworth investigated to see whether they were able to be allowed to have gambling in their companies. Claimed breach of PF and asked for any prerogative remedy Ainsworth asked for certiorari, setting aside the report, mandamus and prohibition

Held: MASON CJ, DAWSON, TOOHEY AND GAUDRON JJ:

-    CJC making adverse findings
-    Mandamus (forcing a hearing- ask for when enforcing a statutory duty) not appropriate as CJC not under stat duty to make findings- was done at the request of the minister. Mandamus not appropriate remedy unless can show there is a statutory duty which must be performed.
-    Certiorari (setting aside a decision) not appropriate as no ‘decision’ has been made under the Act- the CJC simply investigating.
-    The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. The appellants may be granted a licence in direct opposition to the report. There being no legal effect of the report certiorari will not be appropriate.
-    Certiorari may be granted in a case where rights are subjected to a new hazard, as where a recommendation operates as a precondition or bar to a course of action, or as a step in a process capable of altering rights.
-    Prohibition would be appropriate if advance knowledge that CJC about to make adverse findings aware of the fact certain proceedings are underway and ask court to prevent continuation of conduct. Too late because already made its findings and report.
-    It is now accepted that superior courts have inherent power to grant declaratory relief. However it is confined by the considerations which mark out the boundaries of judicial power.
-    The person seeking relief must have a real interest and relief will not be granted if the question is purely hypothetical.
-    The present case involves no mere hypothetical question. At all stages there has been a controversy as to the Commission’s duty of fairness.
-    Declaration (that CJC should have afforded them the rights of PF) the appropriate remedy for lack of PF. Court has declared proceedings unlawful-  minister can’t rely on the report.
-    The appeal should be allowed. The order of the Full Court of the Supreme Court of Qld should be set aside and, in lieu thereof, it should be declared that, in reporting adversely to the appellants the Commission failed to observe the requirements of procedural fairness. The order nisi for writs of certiorari and mandamus should be discharged. The Commission should pay the appellants’ costs of the proceedings in the Supreme Court and of this appeal.

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149

Facts: Hot Holdings Pty Ltd sought certiorari with respect to a recommendatory decision by a mining warden to conduct a ballot for the purpose of determining the party entitled to priority under the Mining Act 1978 (WA). The mining warden’s recommendation was a precondition to a decision by the Minister and had a discernible legal effect upon the Minister’s exercise of discretion.

PRINCIPLE: If recommendation is a precondition to a decision under the statute then certiorari (setting aside the decision) is available.

Held:
-    HC liberalised the test of when certiorari is available. The majority held that certiorari lies where a preliminary decision must be taken into account by a body entrusted with the power to make a decision directly determining legal rights. As a result, certiorari was available with respect to a recommendatory decision by a mining warden to conduct a ballot
-    Following from ABT v Bond- if a recommendation is made as a stat requirement prior to the final decision being made, it is treated as a decision and certiorari is available.

NB.
-    Certiorari is well-known as the remedy issued for error of law on the face of the record, but is also appropriate for jurisdictional error and denial of procedural fairness.
-    Prohibition is available to prevent an excess of jurisdiction or a denial of procedural fairness. Prohibition rather than certiorari is the appropriate remedy where the tribunal or inferior court has not yet completely determined a matter.
-    Mandamus is available to compel the performance of a public duty, including a duty to exercise a statutory discretion. A constructive failure to exercise jurisdiction may attract relief in the form of mandamus. For mandamus however the court must be convinced that the administrator had a duty, not merely a discretionary policy decision.
-    The jurisdiction of a superior court to grant declarations in judicial review is wide and discretionary, and the declaration is now a more common form of relief in judicial review at general law than the prerogative remedies.
-    Interlocutory injunctions are granted where there is a serious question be tried and balance of convenience favours intervention by the court pending the hearing of the application for a final injunction.

Re Refugee Review Tribunal; Ex parte Aala (2001) 75 ALJR 52
Constitution s75 (v)  HC has orig jurisdiction to hear matters against Cth official in which mandamus, prohibition etc is awarded.

-    HC had to decide whether constitution includes the remedy of certiorari even though not expressly in s75 (v). HC said it had the power to grant certiorari under the constitution because it is ancillary and incidental. Read s75 (v) as including the right to grant remedy of certiorari.
-    HCA had to decide whether there were restrictions on granting remedies.
-    Kirby J: shouldn’t call remedies under constitution prerogative remedies. Under constitution remedies are specifically enumerated in constitution s75  they are constitutional remedies.  don’t need to look to CL
-    constitutional not prerogative writs

1.2    ADJR Act Reform

ADJR Act ss 15, 16

S15 – Application to the court under s5 in relation to a decision does not affect the operation of the decision or prevent the taking of an action to implement the decision but
a)    a court may by order (on conditions it thinks fit) suspend the operation of the decision and
b)    the court may order (on conditions it thinks fit) a stay of all or any proceedings under the decision.
The court may make such an order of its own motion or on the application of a person who made the application under s5.

S16 – (1) On application for an order of review of a decision the court may, in its discretion make any of the following orders:
a)    an order to quash or set aside decision or part of decision [certiorari]
b)    an order referring the matter for further consideration by the person who made it.
c)    An order for declaration of rights of the parties [declaration]
d)    An order directing the parties to do any act or thing that the court considers necessary for justice [mandamus]

(2) on application for review of conduct that has been, is being, or will be engaged in to make a decision the court may
a)    order declaring rights
b)    order to do or refrain from act

(3) on application for review of a failure to make a decision court may
a)    order directing the making of a decision
b)    order declaring rights of parties in relation to making a decision
c)    order to do or refrain from act

(4) The court may at any time revoke, vary or suspend the operation of any order made under this section.

Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637

Facts: 7 Korean businessman came to Australia illegally and were arrested. Deportation orders were issued. DPP wanted them to stay as witnesses in prosecution of Korean person and corrupt officers of Customs involved in the illegal immigration scheme. Stayed for 3months until told they were not obligated to stay longer. They sought review under ADJR act and a stay of the execution of the deportation orders. The applicants granted leave to appeal to HC confined to the question whether the Full court was correct in declining to declare that the detention was unlawful from the date of the deportation orders.

Held:
-    Leg purpose of S16- allows flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will do justice and avoid unnecessary litigation.
-    In the present case- where the decision is a deportation order which has been found to be null and void ab initio and the person is still in custody of the decision maker, an injunctive order that the respondent do whatever be necessary to procure the applicants release could be properly considered as ‘necessary to do justice between the parties’.
-    Each appellant was entitled to a declaratory order that his detention was unlawful in addition to an order formally quashing the deportation order on which the detention was based.
Appeal allowed.

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2.   DISCRETION OF COURT TO REFUSE RELIEF
2.1   High Court & General Law

-    Allars 13.8.1- the court has a discretion to decline relief even though an administrative action is justiciable, the plaintiff has standing, and a ground of review is established.
-    Prohibition and certiorari may be declined due to delay, prejudice to the respondent outweighing the grant of relief, and futility.
-    Ex Parte Mullen; Re Wigley set out the discretion to decline grant of mandamus, namely, the court will, “refuse an application for the prerogative writ of mandamus where there is an alternative remedy at law which is equally convenient, beneficial and effectual… and where the statute imposing the duty provides a specific remedy for the enforcement of that duty, the remedy of the prerogative writ of mandamus is not available.”
-    Also, they will not grant it if the application is not made in good faith or to achieve some indirect purpose, or there is an ulterior motive.
-    Allars 13.8.2- Injunction and declaration are discretionary remedies. An important principle is that the jurisdiction of the civil courts to grant an injunction to restrain an actual or threatened breach of the criminal law is used only in exceptional cases, like A-G v Harris 1961, here shopkeepers complained their trade was reduced by unfair competition of flower sellers at a stall near a cemetery on Sundays in breach of a regulation. Since the flower sellers were ‘deliberately flouting the law’, and the fines were small compared to the profits, an injunction was granted to restrain the illegal activities.

Re Refugee Review Tribunal; Ex parte Aala (2001) 75 ALJR 52
•   Gleeson, Gaudron & Gummow JJ- conclude the HC can grant remedy of prohibition where there has been a matter of procedural fairness. They regard jurisdiction as an area of procedural fairness. Can  grant prohibition. Use original intent theory.
•   Kirby has different approach to remedies available- rejects the approach of looking at original intent of the framers. Writs of prohibition and mandamus were not fixed for all time when the constitution was framed. Developments in England shouldn’t influence constitutional remedies in Australia.
•   A lack of procedural fairness is an error of jurisdiction.
•   Where PF is breached resulting in excess jurisdiction, prohibition is given almost as of right.
o   Kirby believes certiorari is more appropriate remedy
•   NB: the court says they have discretion- don’t need to grant the remedies if see a reason why they shouldn’t.
•   Relief only withheld where:
o   Compliance with procedural fairness would have made no difference;
o   Where a person has been slow to assert their rights;
o   Where a person may be taken to have waived rights;
o   Where the argument/breach of PF has been trivial;
o   Where decision would result in disproportionate inconvenience or injustice. NB Project Blue Sky
•   Courts must adhere to the fair hearing rules. This means govt officials given power must work within that power, not acting on “some personal predilection”. Similarly, it won’t be necessary have proceedings based on “insignificant, purely formal and immaterial mistakes”.
•   Question of fact- the impact a hearing would have had on the tribunal’s decision.
•   Constitutional writs of mandamus and prohibition are available, as are those of certiorari and injunction

2.2   ADJR Act

Lamb v Moss (1983) 49 ALR 533

Facts: Moss was a doctor charged under the Crimes Act (Cth) of conspiracy to defraud the Commonwealth. In committal proceedings a prima facie case found under a different offence. Magistrate refused to allow cross-examination of Crown witness and indicated he did not propose to discharge Moss under the Justices Act. Moss commenced under ADJR act for review magistrate’s decision.

Held:
-    Nowhere, except in s 10(2)(b) does the Act [ADJR Act] expressly empower the court to refuse relief, although obviously that power must exist when no basis for relief is established.
-    Once jurisdiction of courts properly enlivened under ADJR Act (standing and decision of admin character under an enactment) there is an obligation to entertain an application
-    But basis for relief under the act must be established
-    Federal court has the same discretion to grant or refuse relief as courts do dealing with an application for traditional common law or equitable remedies
-    Order for review in respect of committal proceedings only made in ‘most exceptional circumstances’.
-    Court will always entertain the application so long as grounds made out but they do have the discretion to grant relief.

ADJR Act s 10

S10(1)(a) rights in the act are in addition to any other rights the person has to seek review
(2)(a) can decline to exercise jurisdiction if the applicant has already sought review by another means or they should seek review by another court/body, pursuant to another act.

3.   STANDING, INTERVENTION, JOINDER AND FRIENDS OF THE COURT
4.    STANDING
4.1   Prerogative remedies

The prerogative remedies in public law (used in state courts where codified) are:-
-   Prohibition = stop proceedings to prevent illegality. Can’t be used once a decision is reached.
-   certiorari = quashing of a decision (gives superior cts a supervisory role over decisions made by lessor bodies (on the ground of non juris error, of law on the face of the record, juris error or procedural unfairness)
-   mandamus = compelling order against reluctant administrators to carry out functions lawfully. A person whose legal specific right is affected has standing to seek mandamus.
Injunctions and declarations, from private law, may also be sought in judicial review actions
The principles relating to standing to seek judicial review have differed according to the remedy sought

Availability:
Relief in the nature of C and P will lie: “wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority”: R v Electricity Commissioners ex p London Electricity Joint Committee (1924), per Atkin LJ
Lord Atkin’s dictum is still the locus classicus for the availability of the 2 remedies, but over the years there have been some judicial refinements:
*    As to the question of when a body has “legal authority”, the courts now appear to be moving to a position where the essential question is not the formal source of power to determine rights but whether the authority being exercised is sufficiently ‘public’ in nature: see R v City Panel on Takeovers and Mergers; ex p Datafin plc (1987). In the past, relief was held to be unavailable where the body in question was a private or domestic body or where the matter complained of was a private law matter of a public body: see R v BBC; ex p Lavelle (1983)
*    The requirement as to “rights” was relaxed quite early to allow the remedies to lie where rights in the strict legal sense (eg. proprietary rights) were not actually being determined by the body in question. However it is still generally considered necessary that the ‘determination’ in question create or affect rights and obligations in some substantive way (see R v Collins; ex p ACTU-Solo Enterprises Pty Ltd (1976); Greiner v ICA/Moore v ICAC (1992), even if the particular decision is not the final or ultimate one.
*    In contrast, in Hot Holdings v Creasy, it was held that a preliminary decision or recommendation, if it is one to which regard must be paid by the final decision maker, would have the requisite legal effect upon rights to attract certiorari
*    The duty to act “judicially” is now interpreted as a duty to act fairly in thew making of administrative decisions affecting rights, interests and legitimate expectations: see Ridge v Baldwin (1964); Kioa v West (1985)

R v Justices of Surrey (1870) LR 5 QB 466
•   A party aggrieved has standing to seek prohibition or certiorari. The person has to suffer damage to an interest greater than the ordinary members of the public. A person is aggrieved if his or her interests are affected by a decision of a tribunal or inferior court made in excess of jurisdiction.
•   A member of public has standing at the discretion of the court.

Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
*    Sinclair had standing because as an objector to an application for a mining lease, over 1100 acres of Fraser Island, he had the right to have the hearing of the application conducted according to the law. Objection that sandmining against the public interest because of irreversible damage to the environment.
*    Courts held he has a legal right because has a statutory right to be an objector.  has standing to object in the public interest.
*    Courts often use a ‘sufficient interest’ test or test in ACF instead of the traditional test set out above. Can approach this kind of question using the ACF test.
*    Note► In more recent years, the test of “special interest” (see ACF Inc v Cth (1980)), applicable to actions for equitable relief, has (in the absence of a right of statutory standing) sometimes been applied: see, for example, Mirror Newspapers Ltd v Walker (1985); State Planning Commission; ex p Helena Valley/Boya Assoc Inc (1990)
*    In the absence of a statutory right of standing, a person has a special interest in the subject matter of the proceedings for the purposes of relief in the nature of certiorari and prohibition if the person’s interests may be prejudicially affected in some way and the person is someone other than a “mere busybody”: see R v Liverpool Corporation (1972); R v Corporation of the City of Burnside (1987)

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MANDAMUS

An order by way of mandamus is used to compel a person or body to perform a lawful “public duty”
Availability
For relief by way of mandamus to be available, 3 requirements must be satisfied:
1) There must be a “duty” to be performed
•   i.e. some act required to be performed or some decision required to be made
•   Ainsworth v CJC (1992): held that relief by way of M. was inappropriate as the commission was under no statutory duty to investigate and report upon the matter complained of
•   M. will not lie so as to dictate the manner in which a statutory discretionary power is to be exercised: see Randall v Northcote Corporation (1910)  where the duty involves the exercise of a discretion, the court will only see that the discretion is exercised.
•   Where there has been an abuse of power, the court may take the view that there has been no exercise of the discretion and will require that the authority in question address itself to the question of the exercise of the discretion and exercise the discretionary power according to law: see ex p SF Bowser & Co; ex p Randwick MC (1927); Dickinson v Perrignon (1973)
•   Where there has been any misconception or misunderstanding (on the part of the decision maker) as to the nature or extent of the duty to be performed, relief by way of mandamus will lie: see Sinclair v Mining Warden at Maryborough (1975)
2) The duty must be a “public” one
•   Relief will not lie to control the activities of public bodies in respect of their private duties. However, in recent years it has become increasingly difficult to distinguish between what is “public” and what is “private”: see John Fairfax & Sons v Australian Telecommunications Commission (1977);
3)The duty must be “lawful”
•   There must have been both a demand for its performance and a refusal to perform the duty: see R v Brecknock and Abergevenny Canal Co (1935).
•   A “conditional agreement” to perform the duty may or may not amount to a refusal: see Brecknock. Much depends on each particular case. Undue delay can be treated as refused to act. However, what constitutes undue delay will also vary by context
Discretionary Considerations:
•   Relief by way of M is highly discretionary, indeed more so than relief in the nature of C and P, since it is not available as a right: Commissioner for Local Government Lands & Settlement v Kaderbhai (1931)
•   The court’s discretion, though wide, is still to be exercised “judicially”: Stepney Borough v John Walker & Sons Ltd (1994)
•   Relief by way of M
*    may be refused on the ground of delay (see Kuringgai MC v Arthur Gillott Pty Ltd (1968), or where it would be unnecessary or futile;
*    will generally be refused where there is an alternative remedy of law (eg. right of appeal) which is equally convenient, beneficial and effectual: see Re Barlow (Rector of Ewhurst) (1861); Bilbao v Farquhar (1974)
*    will certainly be refused where the application for relief is not made in good faith or is made to achieve some ulterior purpose: ex p Commissioner for Railways; Re Locke (1968)
Standing:
•   Specific legal right or sufficient interest or special interest in the duty
•   EG: participation in the proceedings being challenged: Sinclair v Mining Warden
•   At common law the test of “special interest” has, in the absence of a statutory right of standing, been applied, at least in NSW, to actions for relief in the form of both C and M: see Mirror Newspapers Ltd v Waller (1985)
•   At CL, a person is pf entitled to relief in the nature of mandamus if the person can show that the subject of the duty directly affects him or her: see R v Commissioner of Police of the Metropolis; ex p Blackburn (1968); Bilbao v Farquhar (1974)

4.2   STATUTORY MANDAMUS: s 65 Supreme Court Act 1970 (NSW)

65 Order to fulfil duty

(1) “The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested”
•   Specific statutory test of standing to seek mandamus: - Liberal test by which a plaintiff who is ‘personally interested’ may seek ‘statutory mandamus’ under the SCA 1970 (NSW) s 65.
•   Eg. interest in seeking to preserve family may found a ‘personal interest’ in seeking to compel a coroner to resume an inquest into the death of a brother : Bilbao v Farquar (1974) NSWLR
•   Participation as a party in a purported appeal to a tribunal may found a ‘personal interest’ within s65 in seeking to establish a jurisdictional error in a refusal by the tribunal to exercise jurisdiction over a matter: Dickinson v Perrignon [1973] NSWLR.
•   It does not lie against the crown or servants of the crown ex powers conferred on them directly or under the royal prerogative.

4.3   Injunctions and Declarations
•   INJUNCTION – stay order (permanent or temporary). Stops person acting in way x so they have to act in way y.
•   DECLARATION – Statement of the law
Standing:
•   In the absence of a statutory right of standing, before a private plaintiff can institute injunctive proceedings, the person must now show, in the absence of some right being affected, that he or she has a “special interest” in the subject matter of the action: see ACF Inc v Cth (1980); Onus v Alcoa of Australia Ltd (1981)
•   A “special interest”
-   may involve some actual or apprehended injury or damage to the person’s property or proprietary rights, to his or her business or economic interests: see NSW Fish Authority v Phillips (1970) or perhaps to his or her social, political or spiritual interests: see Onus, Ogle v Strickland (1987)
-   but must be more than “a mere intellectual or emotional concern”: ACF case  “a mere belief or concern, however genuine, however strongly felt, that the law should be observed does not in itself give a person standing”
•   Where a statute creates a criminal offence, injunctive or declaratory relief cannot be claimed by a private person suing alone, in the absence of:
-   a “special interest”; or
-   some special damage suffered by the person in addition to the offence against the public at large: see ex p island Records Ltd (1978) or
-   a statutory right of standing
•   except: in respect of flagrant and repeated (and, unless restrained, likely to be further repeated) breaches of the law: Cooney v Kuringgai MC (1963)
•   Generally speaking, however, the AG is the appropriate person to bring all such proceedings, either on his or her own motion or by relator: see Gouriet v Union of Post Office Workers (1978); ACF case
•   The balance of judicial authority is to the effect that the AG’s discretion in relation to the exercise of his or her fiat is absolute and non-reviewable: see Gouriet; ACF case

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Facts: Concerned here with the issue of whether a body like the ACF has standing to apply for an injunction. The ACF was a body corporate whose main object was conservation of the environment, who was attempting to stop a proposed tourist resort. Minister decided needed an environmental impact statement (EIS). In the act 3rd parties could comment  ACF made written reasons why development shouldn’t go ahead, claiming the draft EIS by the company was inadequate. However, the Minister for Environment approved the development (before looking in to the claim), so the ACF sought a declaration and injunction under the original jurisdiction of the HC in relation to an alleged departure from the Administrative Procedures and s10 of the Environment Protection Act.

Held: Gibbs J-
Applied the Common Law standing test from Boyce v Paddington
Plaintiff can sue w/o joining AG in 2 cases
•   Where the interference with the public right interferes also with his private right; or
•   Where no private right is interfered with but he suffers special damage (i.e. over and above the public) peculiar to himself from the interference with the public interest: i.e. a ‘special interest’ in the subject matter of the action.
► Special interest is distinct from a “a mere intellectual or emotional concern”
► Financial or proprietary interests amount to a special interest.
•   A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.”
•   ACF has no private interest. Special interest? ACF said they do- they represent the Australian public and members. Court says that the ACF has only an emotional or intellectual interest in the matter- doesn’t satisfy the special interest test. If not directly affected, have to satisfy court have some kind of financial, economic or something other than emotional or intellectual.
•   The fact the ACF was incorporated with particular objects of conservation does not strengthen its claim to standing.
•   Gibbs J also distinguished the case from Sinclair. In that case the ACF sent written comments to the development company which they were required to take into account when drafting their environmental impact statement. Gibbs J believed the fact the ACF was permitted by the administrative procedures to send a statement did not automatically mean they had a special interest. “The fact would only have some significance… if the administrative procedures revealed an intention that a person who sent written comments thereby acquired further rights.” Gibbs J believed this was not the case here, since in Sinclair the objector had a right he was entitled to enforce, whereas here, the person submitting the statement had no further right.

Murphy J’s (dissent): “even if it is necessary to show that the plaintiff is more particularly affected than other people, here the plaintiff is more particularly affected as it has gone to the trouble of submitting comments.” The Foundation should have standing because it is a well-established, well-known conservation organisation. Murphy J made reference to its objects which were in line with the challenged decision. He also took into account the fact that it had may members and had been paid annual grants by the Cth. Also, some the members of the ACF would have their pastimes interfered with.

What this case may mean: Seems to state that environmentalists do not have a special interest, but rather they have an intellectual interest, which has no standing. This might be different now with environmentalists having a much greater public profile, which would make it easier on the courts to recognise them as having standing. Note, however, the stated objects of a corporation mean nothing to standing, and the distinction drawn between this case and Sinclair.
•   NB: date important because decided in 1980 under CL.
•   Also look at ACF v Minister of Resources- under ADJR Act, 10 yrs later.

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* Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
Facts: 2 members of the Gourndich-jmara Aboriginal people sought to prevent Alcoa from constructing an Aluminium smelter on the land the company owned. They had occupied the land since prehistoric times and the land contained relics of spiritual significance to them and they were custodians of these relics. The Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) provided that a person who destroyed a relic was guilty of an offence. The plaintiffs sought a declaration in the Supreme Court that the Aboriginal relics were ‘relics’ and that an injunction should be granted.

PRINCIPLE: A ‘special interest’ may be found where the applicant’s interest to the subject matter is proximate; their interest goes beyond a mere emotional or intellectual interest. it can be of a spiritual or emotional nature.

Held: Gibbs CJ: Distinguished from ACF
•   Applicants did have standing from the test in ACF;
o   “a plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public, if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action.”
•   the Aboriginal people had a special interest, that went beyond a mere emotional or intellectual interest, as the relics have cultural and spiritual significance, that they were custodians of them, and they use them regularly e.g. to teach their children their culture.
•   Distinguished from ACF because of the “weight” and in particular in terms of proximity. Aboriginal interest to relics is proximate- in ACF didn’t have a close connection

What this case may mean: The HC seemed to be a bit more liberal in its approach to finding whether or not a special interest was present. If there is a cultural or spiritual connection to the subject matter, it is not of a wide general nature, and there exists a connection by family descent or custodial obligations, then it is more likely the Court will find you have a special interest.

Central Queensland Speleological Society Incorporated v Central Queensland Cement Pty Ltd (1989)
Facts: An act provided a person may not take fauna. The Speleological Society (Incorporated) was an association whose objects where to conserve caves. The society ran tours of the caves until it was excluded from the area and had raised $3575 by selling stickers and T-shirts. The company proposed to demolish the ‘speaking tube cave’ which lay within its mining lease. The cave was a roosting site for pregnant ghost bats. The society commenced an action seeking an injunction to restrain the company from committing an offence under the Act.

Held: Derrington J:
•   The conservationists should not be allowed to rely on the company’s “generosity” in letting it visit the caves for tours and then forcing the company into “long and expensive and delaying litigation”.
•   “a party cannot create his own standing simply by spending money in support of the cause being or intended to be promoted in the litigation, whether it is by printing slogans on T-shirts or by any other such means”.
•   “Where the interest of the relevant group is purely conservation of the natural environment, that alone is insufficient to invest standing”.
•   The society has shown no greater interest than the ACF in ACF v Cth.
•   The problem with the selling t-shirts to try to establish standing was that the “possible financial loss in the activity proposed by the respondent has employed all possible features; but they are forced and lacking in substance”.

* Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998)

Facts: The Aboriginal Community Benefit Fund sought to have the Aboriginal Land Council’s funeral benefit scheme declared unlawful and sought an injunction against it on the basis that the Act creating these funds did not allow the Aboriginal Land Council to operate the funeral benefits scheme. The ALC could subsidise its plans with other public monies. The Aboriginal Funeral Benefit Fund ran a funeral benefit fund which would be likely to suffer loss through additional competition if the other fund was operating.

PRINCIPLE: the special interest test will be satisfied if a statutory body is acting ultra vires (using public funds) and a party is suffering severe economic detriment as a result.

Held: GAUDRON, GUMMOW AND KIRBY JJ:
•   Since the ALC would operate in the same field as the Aboriginal Community Benefit Fund, the Benefit Fund would be financially harmed.
•   Judicial criticism of Boyce: The Boyce rule is that the party, if not joined by the A-G, must show “a special interest in the subject matter” (this is a re-expression of the Boyce rule). The Boyce rule may lead to an “unsatisfactory weighing of the scales in favour of defendant public bodies”. In Australia we can no longer rely on the A-G to always come to the aid in the public interest.
•   “Those persons, even if not given by the legislation personal rights which would be protected by injunction, may well have a sufficient special interest”. It is in the public interest that limitations upon the use of public monies should be overseen / reviewed.
•   The current test is a “modified form of the Boyce principle” i.e. “that the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject matter”.
•   In practice the matter is significant to the Aboriginal Community’s Benefit Fund.
•   Respondents did have sufficient standing because the land council was acting ultra vires in a manner involving the use of public funding. If a statutory body is acting UV and using public funds while acting UV, will give standing where they normally wouldn’t (for pure competition cases).
•   Special interest test maintained but respondent entitled to seek equitable relief because of severe detriment to their business.
•   2 factors- council using public money to achieve UV purposes, and the applicant suffering severe economic damage.
•   Wont allow standing where one party just trying to eliminate competition.

McHUGH J:
•   The Fund had standing because it would suffer financial detriment if the ALC’s fund was allowed to operate. Also the detriment suffered by them would be greater than suffered by any other member of the general public.
•   Although Boyce and the second limb have been criticised, it has been extensively applied by the HCA. The modified test for the second limb should be used: “a special interest in the subject matter of the action”. The test is flexible (see ACF v Cth and compare to the Onus v Alcoa case).
•   The fund had a special interest in the subject matter of the matter. The subject matter is the legality of setting up the ALC’s fund in which the Benefit Fund had special interest. The activities would affect them financially and to an extent that exceeded injury to any other individual.

4.4   ADJR Act

s3(1) – a decision = a decision of an administrative character made under an enactment, other than a decision by the Governor General
s3(4) is a more straightforward test for standing

s3(4) –
(a) where the reference is to a person aggrieved by a decision includes a reference:
(i)   to a person whose interests are adversely affected by the decision; or
(ii)   in the case of a decision by way of the making of a report or recommendation- to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation.
(b) the reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.
 Although the concept of an 'aggrieved person' is not limited to persons who possess a legal interest it is necessary that the interest possessed must be more than a mere intellectual or emotional concern. Right to Life v Dept of Human Services (1994).

s5 –Grounds of review for a decision. This section specifies
(a) breach of the rules of natural justice
(b) non-observance of procedures required by law to be observed in connection with the making of the decision
(c) lack of jurisdiction to make the decision
(d) non-authorisation of the decision by the enactment in pursuance of which it was purported to be made.
(e) improper exercise of power where the decision purports to be made in pursuance of a power conferred by an enactment. (includes relevant/irrelevant considerations, improper purpose, bad faith, acting under dictation, inflexible appl of policy, unreasonableness and uncertainty).
(f) error of law whether or not the error appears on the face of the record of the decision
(g) fraud:
(h) no evidence or other material to justify the making of the decision; and
(i) the fact that the decision was 'otherwise contrary to law."

S6 review for 'conduct engaged in' for the purpose of making a decision to which this act applies. "conduct engaged in" – the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of injury or investigation.
S6(1)   provides for a direct challenge to conduct on procedural ground only- same grounds as in s5

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Continued

S7: Failure to make a decision
SUMMARY:
“person aggrieved” which includes a person whose interests are affected by the decision / conduct / failure
Examples …
Vocational and professional interests confer standing: Ogle v Strickland
Participation in a primary decision-making process confers standing: US Tobacco v Minister for Consumer Affairs
Capacity to represent the public interest: “Woodchip Export Licence” cases
    - objects of organisation
    - status as peak organisation
    - recognition by government
    - research and other activities related to subject matter
But Right to Life – the subject, scope and purpose of a particular regulatory scheme may provide an exhaustive measure of judicial review at the instance of third parties he same time interfered with
    - In Right to Life the interest being advanced by the 3rd party was not related to the    purpose of the regulatory scheme
    - Gummow J doubted Ogle v Strickland

* Ogle v Strickland (1987) 71 ALR 41

Facts: The censorship board granted a licence to a company to import a film named “Hail Mary”. A Regulation provided that it could not be registered if, in the opinion of the board, it is blasphemous, indecent or obscene. Priests sought to review these decisions under the ADJR Act, arguing the film is blasphemous.

Held: LOCKHART J: Priests had standing as they were spiritual leaders and so had a special interest.
•   The priests argue that it is their vocation to teach the Christian beliefs and it is part of their duties to reject blasphemy. Their special positions as ministers are argued to put them in a position different from that of other members of the community.
•   This case is akin to the Onus case because the ideal of repelling blasphemy is simular to the spiritual significance of the relics in Onus.
•   The ADJR Act is remedial and should not be given a narrow meaning.
BUT then harks back to the common law (especially Boyce) for guidance, “There are sound reasons why the expression should not be extended to include a member of the public who does not have a grievance which he or she will suffer beyond that which he or she has as an ordinary member of the public”.
•   The Ministers are in a special position compared with an ordinary member of the public because “it is their duty and vocation to maintain the sanctity of the Scripture, to spread the Gospel, to teach and foster Christian beliefs and to repel or oppose blasphemy”. Their teachings are of “cultural and spiritual significance” and are “of no less significance to Chrisitains than were the Aboriginal relics” (in Onus). Therefore the Preists are impacted upon more than any other ordinary member of the public.
•   Did not decide whether any person of the Christian faith could have standing, but stated “some Chrisitan sects have little or no hierarchical structure, yet their followers are devout believers in their religious teachings. To deny them standing is a conclusion which would not be lightly reached”.

* United States Tobacco Co v Minister for Consumer Affairs (1988) 82 ALR 509

Facts: AFCO consumer organisation with objects of consumer affairs was allowed to participate in conference under TPA into whether smokeless tobacco was an ‘unsafe good’. AFCO given permission to participate and give its views. US Tobacco apply to prevent the continuation of the enquiry. AFCO sought to be joined in application by company for review of Minister’s decision to hold inquiry under TPA. Do they have standing?

Principle: the person aggrieved test can be satisfied by a body having participated in an enquiry and made representations. The test is easier to satisfy than the CL test.

-    Similar to ACF v CW
Held: Full federal court:
o   AFCO had standing because had been admitted to conference and so had an interest different from the ordinary member of public
o   Compare this HC’s dictum in ACF v CW about rights of standing arising out of participation procedures. IN ACF it had participated in the environmental impact procedure- responded to the environmental impact statement- HCA still said those administrative procedures didn’t give them any rights of standing.
o   In this case AFCO has standing firstly bc participated in conference, have made representations and as a result of participation have standing to be joined in this action under the notion of person aggrieved. It would be a breach of rules of natural justice if AFCO, a participant in the conference, was not given opportunity to argue that the conference was lawfully called.
-    Here see difference b/w CL (ACF) and ADJR Test (AFCO)
-    CL test is very strict- 2 parts- Boyce
o   Either have to show public interest claiming also affects your private interest
-    If cant satisfy above-
o   say no private interest but have one over and above the public
-    ADJR test= ‘person aggrieved’ Fed Ct hasn’t got rid of CL language- it’s easier to satisfy, but not open to everyone. Courts specifically rejected the floodgates argument-don’t believe will be extra litigation- not refusing to open to any person bc of floodgates (if open test court overcome with frivolous and vexatious claims).
-    This case highlights a different form of participation, the amicus curiae a party that assists the court by presenting argument that would not otherwise have come to its attention- suited to public interest groups bc ensures a perspective considered – its not a party to the action and  cant adduce evidence, examine witnesses or appeal but also is only liable for its own costs.
-    NB: in NSW the CL standing test applies- not a legislative one

Australian Conservation Foundation v Minister for Resources (1989)

Facts: The Minister granted a licence for a large amount of woodchip export in the SE forests. The ACF was the major national conservation organisation in Australia, established with a view to reconciling the use and exploitatin of resources with the conservation of the natural environment. It was funded by the Commonwealth and State Governments. The second applicant was an owner of property adoining the SE forests. He claimed the logging would jeopardise his livelihood, saftey and enjoyment of life.

Held: DAVIES J:
•   Standing as in the ADJR Act is “wide and flexible”.
•   ACF and standing:
•   FACTORS GOING TOWARDS STANDING:
1.   ACF is a “major national conservation organisation”. It also had a large income.
2.   The objective of this organisation is in line with the proposed action ie. The objectives are concerned with conserving resources whilst exploiting commercially viable proposals.
3.   There was “substantial annual funding from both the Commonwealth and State governments.
4.   The ACF had undertaken special reseach with respect to the SE forests eg. Published papers. This means that the ACF “is not just a busybody in this area”.
5.   Importantly “the community at the present time expects that there will be a body such as the ACF to concern itself with this particular issue and expect the ACF to act in the public interst to put forward a conservation viewpoint”.
- ACF has standing – it satisfied the person aggrieved test

Continued on page 6

Continued

The adjoining property holder and standing:
•   The property holded alleged that the logging would increase the frequency of damaging floods and fires and would silt up the river. Trucks have caused damage to the ajoining road, have caused damage to his windscreen and cause noise pollution.
•   However the property owner’s interest is only that of “an ordinary mamber of the community” and thus he has no standing.

* North Coast Environment Council Incorp v Minister for Resources (No 2) (1994)
-    tried to rely on ACF above- follows line of reason
-    minister argued shouldn’t have standing bc a small regional organisation and not comparable with ACF- a national organisation. Minister also argued didn’t get same amt of funding from national govt.
-    court rejected this- size of organisation and level of funding not relevant
-    look at their participation in public proceedings, public funding etc
PRINCIPLE: to have standing, an environmental organisation must be able to demonstrate a special interest in a particular environment. A mere allegation of non compliance with environmental legislation, or simply having as its objects environmental protection will not be enough. A court will find a special interest from its participation in public proceedings and public funding. Note; the size of the organisation and level of funding are not relevant.

* Right to Life Association (NSW) Inc v Secretary, Commonwealth Department of Human Services and Health (1995)

Facts: An appeal by the appellant, an incorporated association which espoused a range of policies, which included the opposition to women having abortions. Respondent, under a statutory scheme, supervised the trial of a drug intended to cause miscarriage. Association wrote to the secretary of respondent requesting cessation of the trial. Secretary refused and association challenged under the ADJR at common law.

PRINCIPLE: An applicant’s interest must not be remote, indirect or fanciful. It must be above an ordinary member of the public and not that of a merely someone able to speak and influence the public’s opinion. There must be some link b/w the applicant and the legislation, the moral concern of the association was not one recognised by the act.

Full federal court:
o   Right to speak and influence opinion of the public and politicians doesn’t give applicant standing
o   If look at other cases doesn’t have a similar interest to the ACF and ministers w.r.t subject matter of litigation. Don’t have standing bc all do is try to influence ppl.
o   Tried to find link b/w applicant and the purposes of the legislation- the applicants purpose to stop abortion- TGA simply aims to make sure drugs are safe. Purposes of TGA nothing to do with broader social issues.
o   TGA (Act) not directed at wide social issues like abortion but at quality, safety of therapeutic goods
-    (At 251) The applicant’s interest must not be remote, indirect or fanciful. The interest must be above that of an ordinary member of the public and must not be that of a mere intermeddler or busybody.
-    (At 252) The term a “person aggrieved” is not a restrictive one; it is of wide import. The applicant must establish that he is a person who has a complaint or grievance which he will suffer as a consequence of the decision beyond that of an ordinary member of the public. He must suffer more greatly or a different way than other members of the community. It is sufficient that the applicant has a special interest in the preservation of a particular environment: ACF at 530. Also cultural, spiritual and historical interests may suffice: ACF at 547. Speaking generally, the concern of one or more individual citizens to protect the environment is not of itself sufficient to confer standing.
-    Q: is this really a standing issue or is it the kind of case the court decides is non justiciable- so politically charged fed court doesn’t want to entertain it.
-    If look at justiciability issues raised in case- court says matter is inappropriate for courts- its for parliament.
•   Mix here b/w questions of standing and justiciability.

4.5 Statutory Reform

Environmental Planning and Assessment Act 1979 (NSW) s 123
s123 Restraint etc of breaches of this Act
(1)   Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
(2)   Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons(with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
(3)   Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings
-    E.g. of total liberalisation of standing test- ‘any person’ may bring proceedings in the court for an order to remedy or restrain a breach of this Act
-    Open standing clause

Oslack v Richmond River Council
Facts: Permission given to a development on condition developer would maintain a certain amount of natural bushland. Was discovered when flying over the devt that the site had been clear felled. Oshlack an individual who went to council said a breach of law occurred what will you do- council said nothing. Oshlack took council and the developer to land and environment court seeking to restrain the developer and council.
PRINCIPLE► when making an award for costs, the court will have regard to whether an action was brought in the public interest. it would defeat the purpose of the ‘any person’ standing clauses to punish the person should the litigation fail.
-    Q: does O have standing? Yes he does bc of the any person clause.
-    Taken on appeal- held there was no reason for the ordinary rule against costs to be set aside.
-    O appealed to HCA.

High Court:
-    All judges although on different conclusions w.r.t the law all said it is a relevant consideration for the judge in awarding costs that matter brought in public interest.
-    No point in awarding open standing then saying you have to pay all costs if you lose. It’s illogical to have an any person clause as standing test and then punish the person should the litigation not be successful.
NB: the NSW land and Environment Court has abolished requirement for security of costs being lodged when matter is a public interest matter.

ALRC Beyond the door-keeper: Standing to sue for Public Remedies Report No 78 (1996 AGPS) Allars CC [13.5]
-    Recommends that any person should be able to commence public law proceedings unless
o   The relevant legislation clearly indicates an intention that the decision or conduct sought to be litigated should not be the subject of challenge by a person such as the applicant; or
o   In all circumstances it would not be in the public interest to proceed bc to do so would unreasonably interfere with the ability of a person having a private interest in the matter to deal with it differently or not at all.
-    This recognises the wide range of ppl with interests in public law proceedings
-    Simple and easier to apply than current standing tests
-    Avoids inconsistencies
-    Recognises the legislature’s ultimate power to determine who should challenge government decisions.
-    Provides for actions to be brought in the public interest

Trade Practices Act 1974 (Cth) s 80

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 74 ALJR 604

s80 TPA
FCA may grant injunctive relief where, on the application of the ACCC “or any other person”, it is satisfied that a person was engaged, or is proposing to engage in conduct in contravention of Pt V.
-    Alleged misrepresentations in the brochure for eastern distributor by Macquarie- says profits will be high
-    The word “any” doesn’t lend itself to restrictive interpretation
-    Injunctive relief under s 80 is, in its nature, one for the protection of the public interest
-    Argued that unless the person who institutes the proceedings has some direct or special interest in the subject-matter of the proceedings, there is no justiciable controversy
-    Parliament, by conferring standing upon any person to invoke the jurisdiction of the court has created the potential for a justiciable controversy. No barriers to standing.