Allan v Development Allowance Authority
[1999] FCA 426
•14 APRIL 1999
FEDERAL COURT OF AUSTRALIA
ALLAN v DEVELOPMENT ALLOWANCE AUTHORITY [1999] FCA 426
ADMINISTRATIVE LAW – standing to review decision of statutory authority under the Administrative Appeals Tribunal Act 1975 (Cth) - whether standing is required at the date of commencement of a matter and at the date of the hearing of the matter – whether “loss” of the special interest giving rise to standing after commencement of proceeding renders proceeding frivolous or vexatious - whether a person who has an accrued right to have a decision made in accordance with law has standing even if the person has ceased to have a special interest in the decision being made
Administrative Appeals Tribunal Act 1975 (Cth) s27(1)
Development Allowance Authority Act 1992 (Cth) ss 119, 93O(2)(b), 120Allan v Development Allowance Authority (1998) 152 ALR 439 - applied
Re McHattan and Collector of Customs (1977) 18 ALR 154 - considered
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 - applied
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 - considered
Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 118 ALR 527 - considered
Re Williams and Australian Electoral Commission (1995) 38 ALD 366 – applied
United States Parole Commission v Geraghty 445 US 388 (1980) - considered
Cook & Ors v Colgate University 992 F 2d 17 (1993) - considered
Byron Environment Centre v Arakwal People (1997) 78 FCR 1 - considered
Broken Hill Pty Co Ltd v Trade Practices Tribunal (1980) 31 ALR 401 - considered
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA)
(1995) 183 CLR 552 - considered
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 155 ALR 684 - considered
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 - consideredALLAN v DEVELOPMENT ALLOWANCE AUTHORITY AND ANOR
VG 449 OF 1998JUDGE: MERKEL J
DATE: 14 APRIL 1999
PLACE: MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 449 OF 1998
BETWEEN:
PETER ALLAN
AppellantAND:
DEVELOPMENT ALLOWANCE AUTHORITY
First RespondentTRANSURBAN CITY LINK LTD
Second RespondentJUDGE:
MERKEL J
DATE OF ORDER:
14 APRIL 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal and the second respondent’s cross appeal be allowed.
2. The decision of the Administrative Appeals Tribunal made on 9 September 1998 be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal to be determined according to law.
4. The respondents pay the appellant’s costs of and incidental to the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 449 OF 1998
BETWEEN:
PETER ALLAN
AppellantAND:
DEVELOPMENT ALLOWANCE AUTHORITY
First RespondentTRANSURBAN CITY LINK LTD
Second Respondent
JUDGE:
MERKEL J
DATE:
14 MARCH 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Introduction
The present case is an example of the fortitude required by a citizen who wishes to draw upon administrative law procedures for enforcement of modern public statutory duties against public authorities and large corporations. The appellant resided at 2/28 Hooper Street, West Brunswick, 200 metres from the Tullamarine freeway in Melbourne, and believed his amenity was likely to be adversely affected by extensions to the freeway which were to be carried out as part of the Melbourne City Link project.
His tale of procedural woe commenced on 13 March 1996 when he requested the Development Allowance Authority (“the DAA”) to reconsider its decisions made on 19 and 30 January 1996 to grant infrastructure borrowing certificates under Pt 3 of Ch 3 of the Development Allowance Authority Act 1992 (Cth) (“the DAA Act”) in relation to proposed borrowings to fund the Melbourne City Link project (“the DAA decisions”). On 11 April 1996 the DAA informed the appellant that, as he was not a “person who is affected by” the DAA decisions within the meaning of s 119(1) of the DAA Act, there was no basis upon which the DAA decisions could be validly reconsidered. The appellant made unsuccessful applications to review the DAA decisions to the Administrative Appeals Tribunal (“the AAT”) and to a single judge of the Court (Mansfield J) followed by a successful appeal to the Full Court (Wilcox, RD Nicholson and Finn JJ) and then a further unsuccessful application for review on the remitter to the AAT.
After almost three years the appellant is again before the Court seeking to establish that he is a person affected by the DAA decisions and that he is entitled to have the DAA decisions set aside by the AAT on the ground that they contravened s 93O(2)(b) of the DAA Act. The sub-section prohibited the DAA from granting the certificates if there was in force at the time, a law that will prohibit or restrict the operation of other facilities in competition with the Melbourne City Link project. The appellant alleges that the Melbourne City Link Act 1995 (Vic) is such a law.
Background
After the DAA’s refusal to reconsider the DAA decisions, by an application dated 10 May 1996, the appellant applied to the Administrative Appeals Tribunal to review the decisions. On 13 November 1996 the AAT decided that the appellant was not a person “affected” by the DAA decisions and concluded that it lacked jurisdiction to determine the appellant’s application for review.
The manner in which the appellant claimed to be affected by the DAA decisions was summarised by RD Nicholson J, a member of the Full Court which heard the appeal from Mansfield J (see Allan v Development Allowance Authority (1998) 152 ALR 439). RD Nicholson J said (at 447-448):
“In 1995 the Victorian Parliament passed the Melbourne City Link Act 1995 (Vic) (‘the City Link Act’). It provided for the construction of new roads, tunnels and bridges for the movement of vehicular traffic in the Melbourne metropolitan area (‘the City Link project’). One part of the new roads included the widening of the Tullamarine Freeway. The appellant’s home is approximately 200 metres from that freeway and above it. The proposed widening of the freeway would be to within about 100 metres of his home.
On 19 and 30 January 1996 the respondent decided to issue infrastructure borrowing certificates under Chapter 3 of the DAA Act. The purpose of the borrowings was to fund the City Link project.
As far as the appellant is concerned the construction of the City Link project, or at least that part of it near his home, will have a severe adverse effect on his amenity. He complains he will be affected by increased traffic noise due to proximity, to greater traffic usage, to faster traffic movement, and to different traffic usage of the Tullamarine Freeway. He also complains his view will be degraded or blocked. He is also concerned the particular part of the work affecting his property will increase the levels of air pollution at and near his home due to greater and differing traffic movement and to its closer proximity.”
On 11 December 1996 the appellant appealed against the decision of the AAT to the Federal Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The appeal was heard by Mansfield J on 16 May 1997. On 7 August 1997 his Honour dismissed the appeal on the ground that, even assuming that the proposed widening of the Tullamarine Freeway in the course of the City Link project would have an adverse affect on the appellant’s residential amenity, he was nevertheless not “a person affected” by the DAA decisions for the purposes of s 119 of the DAA Act.
Needless to say by this time the infrastructure borrowings, the subject of the certificates, had taken place, as had a substantial part of the widening of the freeway including works which had commenced in April 1997 in the vicinity of the appellant’s home. On 28 August 1997 the appellant appealed against the decision of Mansfield J to the Full Court of the Federal Court which heard the appeal on 31 October 1997. On 27 February 1998 the Full Court allowed the appeal and ordered that the decision of the AAT be set aside and the appellant’s application for review of the DAA decisions be remitted to the AAT for determination in accordance with law. The Full Court accepted that if the Melbourne City Link project would affect the appellant’s amenity as he claimed then he would have the requisite special interest in the DAA decisions and thereby be “a person affected” by those decisions for the purposes of s 119 of the DAA Act. Although the facts relied upon by the appellant to establish the adverse effects of the proposed freeway widening on his amenity do not appear to have been seriously disputed before the AAT, the Court concluded that it was nevertheless a matter for the AAT, rather than the Court, to consider. Wilcox J (with whom Finn J agreed) expressed his conclusion (at 446-447) in relation to the remitter to the AAT as follows:
“I respectfully agree with Mansfield J that ‘ultimately the question to be answered involves the proper construction of s 119’ of the Development Allowance Authority Act; in particular the words ‘person who is affected by a reviewable decision’. Mansfield J was prepared to assume Mr Allan ‘is a person who has suffered ‘special damage’ ... that is, damage beyond that suffered by members of the public generally by reason of the overall decision to proceed with the City Link project, including the widening of the Tullamarine Freeway’. On that assumption, he was in my view clearly a ‘person who is affected’ by the Authority’s decision. Of course, assumption is not enough. There needs to be a finding by the Tribunal about the matter. Although there would seem to be little dispute about the relevant facts, the Tribunal has not yet made a clear finding about Mr Allan’s position. The case must be returned to the Tribunal for that purpose. If the Tribunal makes a finding along the lines of Mansfield J’s assumption, it would follow that Mr Allan is entitled to seek review of the Authority’s decision to grant a certificate in respect of the project. The review would be confined to a reconsideration of the question whether the proposed borrowing satisfies the criteria specified in s 93O of the Act. Mr Allan’s special interest would entitle him to trigger a review but would be irrelevant to the criteria for review.
For the purpose of reviewing the Authority’s decision, the Tribunal has all the Authority’s powers and discretions: see s 43(1) of the Administrative Appeals Tribunal Act 1975. This enables it to do everything necessary to dispose finally of Mr Allan’s application for review; there would be no need for the matter to be returned to the Authority. If the Tribunal, considering the matter in the light of this decision, determines Mr Allan is entitled to seek review, it ought then to consider and determine the s 93O issue.”
RD Nicholson J (with whom Finn J agreed) in separate reasons agreed with the orders proposed by Wilcox J. Both Wilcox J (at 441) and RD Nicholson J (at 457) considered that the DAA decisions, by creating the ability to finance the City Link project (which was said to adversely affect the appellant’s amenity) thereby enabled the project to, or ensured it would, proceed. Thus, although the DAA decisions were likely to only adversely affect the appellant’s amenity indirectly, the adverse affect was held to be sufficiently proximate to the DAA decisions to fall within the “point in the pool of sundry interest at which the affection is not remote”: see RD Nicholson J at 457. Of course, by the time of the Full Court decision not only had the financing occurred but freeway construction was well advanced. However, the fact that the appellant was unlikely to be able to obtain relief that would improve upon his personal position did not appear to prevent the Full Court from concluding that the appellant had the requisite standing.
Thus, the present case is one in which standing to enforce a statutory duty (s 93O of the DAA Act) has been accepted notwithstanding that the person having standing could not establish that he would be likely to gain any advantage if his claim succeeded and would not be likely to suffer any detriment if it failed.
The remitter to the AAT was for the purpose of the AAT determining whether the appellant was a person who is affected by the DAA decisions for the purposes of s 119(1) and, if so, for the reconsideration by the AAT of the question whether the certificates issued in respect of the infrastructure borrowings were issued in contravention of s 93O(2)(b) of the DAA Act.
At a subsequent directions hearing senior counsel for the second respondent (“Transurban”) brought to the attention of the AAT the fact that the appellant no longer resided at 2/28 Hooper Street, West Brunswick. The facts that emerged were that:
· on 19 September 1996 the appellant purchased a new home at 8 Meaker Avenue Brunswick, which was approximately 500 metres further away from the freeway than the Hooper Street premises;
· on 9 November 1996 the appellant sold his premises at 2/28 Hooper Street, West Brunswick;
· during January 1997 the appellant moved to his new home.
These facts raised a new issue of whether the appellant was no longer a person affected by the DAA decisions and therefore was not entitled to proceed with his application to the AAT for the review of those decisions.
In a second witness statement the appellant claimed that he continued to be a person affected by the DAA decisions notwithstanding his change in residential location. In that statement the appellant said:
“3. Construction works started on the Tullamarine Freeway widening around the middle of 1996, but on a part of the Freeway some distance from our house. My wife and I became concerned about the effects on our residential amenity once construction commenced on our section of the Freeway. Following the hearing before Deputy President McDonald in August 1996, we decided to move home in order to avoid these effects, even though we expected to lose money in the process. We would not have moved had it not been for the Melbourne City Link project.
4. The house at 8 Meaker Avenue West Brunswick, some 500 metres further away from City Link, came onto the market in September 1996, and we purchased it on 19th September for $165,000. It was an unrenovatd weatherboard house on which we have subsequently expended approximately $55,000 to bring it up to standard. We actually moved homes in January 1997.
5. We placed our home in Moonee Parade on the market and it was sold at auction on 9th November 1996 for $168,500. Our estate agents advised us that this amount was approximately $30,000 less than the house would have fetched had it not been for the decision to proceed with the Melbourne City Link project. They advised us that a significant number of the people who inspected the house prior to auction had commented adversely on this issue.
6. In addition to the loss on the sale of our home, we also incurred the inconvenience of moving, and approximately $11,000 in fees and charges connected with the sale of the old house, the purchase of the new one and the move itself. I have not been compensated for any of these losses.
7. My change of address was not formally notified to the Administrative Appeals Tribunal or the Federal Court because my counsel, Dr Paul Mees, advised me that it was not relevant to the case.”
On 3 August 1998, at the further hearing before the AAT, the appellant was cross examined on his statement and agreed that he changed his residence to avoid the adverse affects to his amenity that he expected to occur had he remained in his previous home. The respondents’ challenged the allegation that the Hooper Street premises were diminished in value by $30,000 as a result of the Melbourne City Link project but did not challenge any of the other matters set out in paras 3-7 of the witness statement.
Before turning to consider whether the AAT erred in law in again refusing to review the DAA decisions, it is necessary to consider the issue of standing under the legislative scheme applicable to that review.
Standing under the Legislative Scheme
The provisions of the DAA Act relevant to the review were summarised by RD Nicholson J (at 448-450):
“The DAA Act
The decision of the respondent which the appellant sought to have reconsidered was one made under s 93O of the DAA Act. Subsection 93O(1) provides that, subject to subs (2) and s 23P, the Development Allowance Authority (‘the DAA’) must issue the certificate if it is satisfied the proposed borrowing is an infrastructure borrowing and the relevant dates are reasonable. Section 23P requires the DAA to obtain an undertaking from the applicant to comply with the conditions. Subsection 93O(2) provides:
‘If:
(a) the borrowing is a direct infrastructure borrowing; and
(b) there is in force, at the time at which the DAA proposes to issue the certificate in relation to the borrowing, a law that the DAA is satisfied will prohibit or restrict the operation of other facilities in competition with the infrastructure facilities concerned;
the DAA must not issue the certificate.’
The appellant’s case sought to invoke the application of this limitation on the powers of the respondent on the ground that there was in force the City Link Act which would prohibit or restrict the operation of other facilities in competition with the City Link project.
The DAA Act contains provisions relating to development allowances and to infrastructure borrowings. The latter provisions are contained in Chapter 3, ss 93A to 93ZG, which were inserted into the Act by the Taxation Laws Amendment (Infrastructure Borrowings) Act 1994 (Cth).
Section 93A states ‘the object of this Chapter in the infrastructure borrowings provisions of the Income Tax Assessment Act 1936 is to provide tax incentives for genuine private sector investment in publicly accessible infrastructure facilities and related facilities.’
Section 93B sets out a simplified outline of the scheme of the Chapter. This involves a person applying to the DAA for the issue of a certificate in relation to a proposed borrowing that the person considers to be an infrastructure borrowing. If so satisfied, the DAA will issue such a certificate, it being a condition of the issue of the certificate the holder must use the money borrowed in the way proposed in the person’s application and comply with certain other requirements. An example of how the provisions of the chapter work is set out in s 93C. It is apparent from Item (7) in s 93C the consequence of the issue of the certificate is that ‘the borrowing, construction and use of the tollway [the example given] all go ahead as planned.’
As the primary judge stated it, the effect of the provisions is on the application of a person, the DAA may issue a certificate in relation to a proposed borrowing if it is satisfied the borrowing is an ‘infrastructure borrowing’ and that certain other criteria are met. A borrowing will only be an infrastructure borrowing if it is intended to be used for one of seven kinds of infrastructure facility identified in Item 93L of the DAA Act. This includes a land transport facility including a road in Australia to be used for the transport of the public or their goods at a charge to them. The other kinds of infrastructure facility identified are air transport, sea port, electricity generation, transmission or distribution, gas pipeline, water supply and sewerage or waste water facilities.
The money borrowed must be used in the way proposed. The effect of the certificate is that, upon the borrowing, interest paid to the bond holders is exempt from income tax or rebatable. The interest is not an allowable deduction for the borrower.
…
Reviewable decisions
Section 93AA of the DAA Act defines a ‘reviewable decision’ to mean a decision of the DAA (inter alia), under Pt 3 of Ch 3. That is the part into which s 93O of the Act falls.
The relevant review procedures by which the appellant sought to be heard are those set out in ss 119 and 120 of the DAA Act which read:
‘ 119.(1) A person who is affected by a reviewable decision may, if dissatisfied with the decision, by notice given to the DAA within:
(a) the period of 21 days after the day on which the decision first comes to the attention of the person; or
(b) such further period as the DAA allows;
request the DAA to reconsider the decision.
...
(3) Upon receipt of the request, the DAA must reconsider the decision and may, subject to subsection (4), confirm or revoke the decision or vary the decision in such manner as the DAA thinks fit.
(4) If the DAA does not confirm, revoke or vary a decision before the end of the period of 40 days after the day on which the DAA received the request under subsection (1) to reconsider the decision, the DAA is taken, at the end of that period, to have confirmed the decision under subsection (3).
...
120.(1) Applications may be made to the AAT for review of decisions of the DAA that have been confirmed or varied under subsection 119(3).
(2) If, because of the operation of subsection 119(4), a decision is taken to be confirmed, section 29 of the Administrative Appeals Tribunal Act 1975 applies as if the prescribed time for making application for review of the decision were the period;
(a) commencing on the day on which the decision is taken to have been confirmed; and
(b) ending on the 28th day after that day.
...’”
The standing of the appellant was determined by the Full Court primarily by reference to the proper construction of s 119 of the DAA Act (see Wilcox J at 446, RD Nicholson J at 455-456 and Finn J at 457). That is of some importance as s 119(3) provides that the DAA must reconsider the reviewable decision upon receipt of a request made under s 119(1). Thus, a person who is affected by a reviewable decision and who complies with the requirements of s 119(1) and (2) is entitled to require the DAA to reconsider the decision. Standing under s 119 arises if the person who requests the review is, at the time at which the request is made, a person “who is affected by a reviewable decision”.
However, that is not the end of the matter. The appellant applied under s 120(1) of the DAA Act, not to the DAA to reconsider the DAA decisions, but to the AAT to review the confirmation of the DAA decisions by the DAA. As I later explain, in the present case, confirmation of the DAA decision is deemed to have occurred under s 119(4) as a consequence of the failure of the DAA to reconsider the DAA decisions. In those circumstances, standing for the application for review by the AAT is dealt with in s 27 of the AAT Act which provides:
“Where this Act or any other enactment (other than the Australian Security Intelligence Organization Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision.”
Section 29 of the AAT Act provides that an “application” to the AAT for review shall, inter alia, be in writing and in accordance with the prescribed form. Plainly, standing under s 27(1) is required at the time the application to the Tribunal is made, that is, when it is lodged with the AAT in accordance with s 29 of the AAT Act. The other relevant provision concerning standing is s 31 of the AAT Act which provides:
“Where it is necessary for the purposes of this Act to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.”
The right to apply for review by the AAT is only given to persons “whose interests are affected by the decision” sought to be reviewed. Mansfield J and each of the members of the Full Court, in dealing with the appellant’s appeal from the AAT under s 44 of the AAT Act, approached the issue of standing to apply for a review by the AAT on the basis that the critical question was whether the appellant was a “person affected” by the DAA decisions under s 119 of the DAA Act. Their Honours assumed that if he satisfied that criterion he was a person “whose interests are affected” by the decision for the purposes of s 27 of the AAT Act.
The assumption appears to be based upon ss 119(3) and (4) and s 120(1), which provide the machinery for enforcing the right conferred by s 119(1) of the DAA Act. As the AAT stood in the shoes of the DAA for the purpose of its review (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and s 43(6) of the AAT Act) the effect of the original AAT decision affirming the DAA’s decision that the appellant did not have standing under s 119(1), is that the AAT, implicitly if not explicitly, refused to reconsider the DAA decisions. If the DAA and the AAT were in error in deciding against the appellant on standing under s 119(1) they were obliged to reconsider the DAA decisions.
Accordingly, although the issue of standing before the AAT is to be determined under s 27(1) of the AAT Act, prima facie, a person who has standing to make a request under s 119(1) of the DAA Act would have standing under s 27(1) of the AAT Act to challenge a decision by the DAA refusing to reconsider the reviewable decisions in accordance with the request. As Brennan J said in Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157:
“The interest of which s 27(1) speaks is an interest which is affected by the decision to be reviewed, not by the review. The outcome or possible outcome of the proceedings is not the criterion for determining whether the proceedings have been duly instituted, and the relevant interest must be one which is affected by the [decision] whatever the outcome of a review might be.”
Standing under s 119(1) of the DAA Act is to be determined only as at the time a person who is “affected” by the decision makes a request to the DAA to reconsider the decision. Upon making the request the person whose interests are affected has an accrued right to have the decision reconsidered in the manner provided in s 119(3). Applications to the AAT for review of decisions of the DAA that have been confirmed or varied under s 119(3) are not necessarily limited to applications by persons who have made a request under s 119(1). However, a person with an accrued right to apply for reconsideration of a decision of the DAA by the DAA would, for the purposes of s 27 of the AAT Act, prima facie be a person whose interests are affected by a decision of the DAA refusing to reconsider its decision, particularly, if the refusal is in breach of a statutory duty of the DAA to reconsider its decision. The reason for that conclusion is not just that the person was affected by the reviewable decision for the purposes of s 119(1) but also because the person has an accrued right to have the reviewable decision reconsidered under s 119 and, if the reviewable decision is “confirmed” or “varied”, to the review of that decision by the AAT under s 120.
The outcome of the “reconsideration” under s 119(3) entitled the appellant, as the applicant under s 119(1), to apply to the AAT for the review of a decision of the DAA confirming or reviewing the reviewable decisions. Thus, the appellant’s “special interest” in the decisions or deemed decisions of the DAA made under s 119 is closely linked to the issue of whether, under s 120, he is a person whose interests are affected by the decision the subject of review by the AAT. I have placed some emphasis on this aspect of the statutory scheme as it seems to have been overlooked by the AAT.
I have, thus far, analysed the appellant’s entitlement to have his request under s 119 dealt with by the DAA according to law and, if the DAA defaults in doing so, by the AAT on the basis of the proper construction of the relevant statutory provisions. However, in analogous circumstances the courts have accepted the entitlement of a person in the position of the appellant to have his or her request determined according to law and, if necessary to enforce the entitlement by a writ of a mandamus. For example, in the case of Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473, an objector who was entitled to object to the grant of certain mining leases on environmental grounds sought orders that a mining warden hear the application and objections according to law. Although the objector had no special interest, he represented a section of the public and had a right to have his objection heard before the warden. Barwick CJ, in explaining why mandamus was appropriate, said (at CLR 478):
“The appellant, having been an objector before the warden, had a right to have the hearing of the application conducted, and the warden consider the application and the objections and make his recommendation according to law. If the application has not been so heard and determined, he is a proper party to seek a mandamus to compel the hearing to be had according to law…”
See also Reg v Bowman [1898] 1 QB 663 at 666 per Wills J. Gibbs J observed in Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 531-532 that the objector in Sinclair had a right he was entitled to enforce. Sinclair was also applied by Spender J in Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 118 ALR 527 at 535-537 to afford an appellant, who had a statutory right to involvement in the authorisation process under ss 90A and 91(4) of the Trade Practices Act 1974 (Cth), to have the determination made pursuant to that process according to law.
The decisions in Sinclair, Bowman and Queensland Newsagents Federation Ltd support the view that if the appellant had standing to make his initial request under s 119(1) of the DAA Act he thereafter had the requisite standing and entitlement to have his request dealt with according to law.
The AAT decision
The AAT, after considering the history of the matter and the relevant statutory provisions, concluded that in order to have standing the appellant was required to demonstrate that at the date of the further hearing before the AAT he had a:
“…special interest in the subject matter, relevantly in the present case, the decision of the Authority to grant infrastructure borrowing certificates in relation to the City Link project.”
The AAT rejected the appellant’s submission that he only had to establish standing at the date of the original application to the AAT, being 10 May 1996, at which point of time the appellant was still residing, and intending to reside, at the Hooper Street premises. The AAT said in respect of the appellant’s change of address:
“If, as contended by Dr Mees the potential loss of amenity is a relevant consideration in determining special interest then it is difficult to envisage how the change of address (involving no loss of amenity) can be regarded as an irrelevant factor.
The Full Federal Court was prepared to accept that the applicant is ‘a person who is affected’ by the Authority decision on the assumption that because of his location at 2/28 Hooper Street he suffered special damage beyond that suffered by members of the public generally, in the form of some loss of amenity due to the widening of the Tullamarine Freeway and thereby some disadvantage. That assumption is no longer valid, relying as it does on a fact not existing when the matter was before both Mansfield J and the Full Court. The question of loss of amenity is no longer a relevant issue given the applicant’s change of address and his admission in cross examination that by shifting to his present address some 500 metres further back from the freeway the perceived threat to his amenity by increased noise and pollution associated with the widening of the freeway never eventuated.
In regard to the claim of special damage associated with moving house, assuming that to be a relevant factor, the state of the applicant’s evidence was meagre and lacked probative value. It consisted merely of an assertion said to have been made by the real estate agents who sold the applicant’s house that the decision to proceed with City Link cost him $30,000.”
The AAT was not satisfied that the Melbourne City Link project had reduced the capital value of the Hooper Street premises by $30,000 as was asserted by the appellant. It concluded as follows:
“The applicant does not in our opinion satisfy the test of special interest. Accordingly he is not a person affected by the decision of the Authority to grant infrastructure borrowing certificates in relation to the City Link project.
Mr Phipps QC submitted the application should be dismissed under s 42B of the AAT Act as being frivolous and vexatious, however in view of our finding on the issue of the applicant’s standing this question does not require consideration.
The decision under review is affirmed.”
The decision which the AAT affirmed was not altogether clear. Presumably, it was intended to be the DAA’s “confirmation”, by operation of law under s 119(4), of the DAA decisions. The reason for the presumption is that they were the decisions the appellant applied to the AAT to review in his original application and were the only decisions which the AAT had jurisdiction to review under s 120(1). Further, as the DAA received the appellant’s application to reconsider the decisions on 14 March 1996 and did not confirm, revoke or vary the DAA decisions before the end of the period of 40 days after receipt of the request (that is, by 23 April 1996) it was taken at the end of that period to have confirmed the DAA decisions: see s 119(4).
The appeal
Pursuant to s 44 of the AAT Act the appellant has again appealed to the Court on a question of law from the decision of the AAT refusing to reconsider the DAA decisions. The appellant submits that the AAT erred in law in concluding that, irrespective of whether he had standing to review the DAA decisions under s 119(1) of the DAA Act or s 27(1) of the AAT Act prior to January 1997, he had lost that standing as a result of his change of residence after January 1997. The appellant contended that:
· in 1996 he had the requisite standing when he made his request under s 119(1) and when he made his application to the AAT for review of the DAA decisions under s 27(1);
· standing, once established, cannot be lost as there is no statutory requirement that standing continue throughout the decision making process, including any appeals that may form part of that process.
The appellant also contended that, in any event, his changed circumstances had no affect on his entitlement to the relief sought namely, that the DAA decisions be set aside. In that regard his counsel submitted that:
“The right to have a reconsideration carried out properly is an ongoing right: it only expires once a proper reconsideration by the DAA or the AAT has occurred (or, perhaps, if a reconsideration has become futile, as in Williams’ case). Although the threat posed by City Link to the Applicant’s residential amenity was a condition precedent to the Applicant acquiring this right – or, using the expression of Wilcox J in the Full Court, the threat triggered the right – the right remains notwithstanding that he subsequently moved house. This is because under s 119(1) the Applicant has accrued a right to have a reconsideration carried out properly, not a right to have the damage to residential amenity rectified.”
The alternative submission of the appellant was that even if there was an ongoing requirement for standing he had the requisite standing at the time of the application for review and at the time of the review by the AAT. His “special interest” at the time of the review resulted from his standing under s 119 of the DAA Act, his “forced” change of residence and the financial loss and inconvenience that attended his change of residence.
The respondents contended that the requirement for standing was ongoing and that the AAT’s rejection of the appellant’s case for standing as at the date of the hearing was based upon findings of fact which were open to it on the evidence and which were not reviewable by the Court. It was also contended that, in any event, the appellant’s claim had now become frivolous and vexatious as his amenity was no longer affected and the relief he was seeking could not be of any benefit or advantage to him. Accordingly, so it was said, the AAT ought to have dismissed the application on the grounds that he lost any standing he originally had and the application was now frivolous or vexatious: see s 42B of the AAT Act and Re Williams and Australian Electoral Commission (1995) 38 ALD 366.
Is the requirement for standing ongoing?
The conclusion of the AAT that the requirement for standing was ongoing was critical to its decision. Standing to apply for review under the AAT Act is to be determined as a matter of construction of the relevant provisions. As explained above, ss 27 and 29 only require that standing exist at the date the application for review is made to the AAT that is, the date the written application for review is lodged. Section 31 provides for a “conclusive” decision of the AAT as to whether the interests of a person are affected by a decision. Although the decision is only “conclusive” if made in accordance with law (see Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 523 per Hill J) the decision must be made on the basis of standing at the time it is required to be established for the purposes of the Act. In that regard, the only date clearly provided for in the AAT Act in relation to standing is the date of application.
As a matter of construction of the relevant provisions that is, ss 27 and 29 of the AAT Act, there is nothing to indicate that the requirement for standing under the Act is on-going. Rather, it appears that standing is a requirement which is to be satisfied at the date the parties apply to the AAT for review of an administrative decision.
The respondents contend that, as a matter of logic and principle, standing must exist at the date of the commencement of a matter and at the date of the hearing. Accordingly, so it is said, where the circumstances giving rise to standing at the commencement of a matter no longer exist at the date of the hearing, standing is lost and the matter is no longer justiciable.
There are difficulties in treating standing as such, as an on-going requirement. For example, circumstances are not static and can continue to change throughout the course of a matter. The concept of standing being “lost” or “gained” according to the circumstances existing from time to time is an unsatisfactory basis for determining a person’s right to commence and continue a proceeding in relation to a “matter”. In a situation of changed circumstances after a proceeding is commenced, it may be more appropriate to examine the status of the matter rather than the status of the party. Thus, if the relief sought would, as a result of changed circumstances, be devoid of practical benefit or effect, the “matter” might be regarded as having become moot and therefore no longer justiciable.
Jurisprudence in the United States has drawn a distinction between the personal stake or interest that gives rise to standing to commence a proceeding (which is to be determined at the date of commencement) and the subsequent loss of that stake or interest that renders the proceeding moot. Delivering the opinion of the Supreme Court in United States Parole Commission v Geraghty 445 US 388 (1980) Justice Blackmun (at 397) discussed this distinction and the requirement that a party seeking the exercise of federal judicial power to resolve a controversy must have a personal stake in the outcome of the controversy. His Honour said:
“The ‘personal-stake’ aspect of mootness doctrine also serves primarily the purpose of assuring that federal courts are presented with disputes they are capable of resolving. One commentator has defined mootness as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ Monaghan, Constitutional Adjudication: The Who and When, 82 Yale LJ 1363, 1384 (1973).”
The distinction was summarised by Circuit Judge McLaughlin of the United States Court of Appeals for the Second Circuit in Cook & Ors v Colgate University 992 F 2d 17 (1993) at 19 as follows:
“…litigants are required to demonstrate a ‘personal stake’ or ‘legally cognizable interest in the outcome’ of their case. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 395, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969)). While the standing doctrine evaluates this personal stake as of the outset of the litigation, the mootness doctrine ensures that the litigant’s interest in the outcome continues to exist throughout the life of the lawsuit, see Geraghty, 445 U.S. at 396-97; Etuk v Slattery, 936 F. 2d 1433, 1441 (2d Cir. 1991), including the pendency of the appeal. See Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 108 L. Ed. 2d 400, 110 S. Ct. 1249 (1990). Accordingly, a case that is ‘live’ at the outset may become moot ‘when it becomes impossible for the courts, through the exercise of their remedial powers, to do anything to redress the injury.’ Alexander v. Yale, 631 F. 2d 178, 183 (2d Cir. 1980); see Lewis, 494 U.S. at 477.”
Thus, framed in the language used by the US courts, the appropriate question is not whether an applicant continues to have standing, but rather, whether the matter has become moot as a consequence of the applicant’s changed circumstance.
The US cases to which I have referred relate to the nature of judicial power and may take a narrower view of standing than would be taken in Australian cases (see for example Byron Environment Centre v Arakwal People (1997) 78 FCR 1, 8-9, 18-19 and 32-33). However, a similar approach to standing where circumstances have changed has been taken in Australia. In Williams, the AAT addressed the problem of “loss” of standing in an administrative context. The case concerned an application by Christopher Williams (who was a member of the Greens (WA) Inc) to the AAT to review a decision of the Australian Electoral Commission to change the register of a political party, “the Greens”, by entering a particular person as its registered officer. The role of the registered officer was to nominate the party’s candidates for election. By the time the application came on for hearing before the AAT, a new registered officer had been appointed and entered on the register.
At a preliminary hearing before three presidential members (President Matthews J, and Deputy Presidents Beaumont and Hill JJ) two issues were considered - whether Williams had standing to make his application under s 27(1) of the AAT Act and, if so, whether the application should be dismissed as frivolous and vexatious within the meaning of s 42B of the AAT Act. For reasons that are not relevant to the present case, their Honours (at 371) concluded that when Mr Williams lodged his application with the AAT he was a person whose interests were affected by the disputed decision and thus he had standing under s 27 of the AAT Act. The AAT considered that the subsequent valid appointment of a different registered officer resulted in the cessation of the underlying interest which provided Mr Williams with his standing, that is, his entitlement to have the party’s candidates nominated by a validly appointed registered officer. As there was no dispute about the valid appointment of the then current registered officer and no nominations were made by the preceding, but disputed, registered officer no practical utility could arise from the grant of the relief sought. The AAT concluded (at 374):
“In this case the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect. Nor is there any reputation at stake or ‘face’ to be saved. The interest which gave the applicant standing to commence the proceedings has long since ceased to exist. He has no legitimate interest in pursuing them further. Accordingly, in our opinion, while the proceedings were not instituted vexatiously, they have become vexatious. They have been thus ever since 22 December 1992, when the only interest of the applicant which could possibly have been affected by the disputed decision, ceased to exist. It would impose unnecessary expense and hardship upon the respondent and the Greens if the case were to proceed further. Accordingly, we consider that the application should be dismissed as requested.
It follows from all we have said that we would allow the application under s 42B and dismiss the application for review.”
In Williams the proceeding was dismissed under s 42B, not because Mr Williams ceased to have standing, but because the outcome of the proceeding was held to be “devoid of any practical effect”. Thus Williams, without referring to the distinction drawn in the United States between “standing” and “mootness”, applied that distinction. Whilst it is true that the AAT did not give consideration to whether standing is an on-going requirement, in my view the approach taken by their Honours accords with ss 27 and 29 of the AAT Act and principle, namely:
· standing relates to the locus standi under ss 27 and 29 to lodge an application to the AAT;
· whether a proceeding has become “frivolous or vexatious” is a separate issue arising under s 42B; in that context a case that has become moot is one example of a proceeding that is, or has become, frivolous or vexatious.
One aspect of Williams can be readily distinguished from the present case. If the appellant succeeds on the merits and establishes that s 93O of the DAA Act prohibited the issue of the infrastructure structure borrowing certificates, the AAT is empowered, inter alia, to set aside the DAA decisions granting the certificates: see ss 43(1)(c) and 43(6) of the AAT Act. Accordingly, unlike Williams, the outcome of the AAT proceeding in the present case is not one that is “devoid of any practical effect”.
The respondents also sought to rely upon Broken Hill Pty Co Ltd v Trade Practices Tribunal (1980) 31 ALR 401 at 412-413 per Bowen CJ and Queensland Newsagents Federation at 535 per Spender J, as supporting their contention that standing is an on-going requirement. In the latter case Spender J stated the position as follows:
“With some diffidence, it seems to me that the question of standing has initially to be addressed at the time of the institution of the proceedings. If, at that time, the circumstances are such that the initiating party is a party aggrieved, that party is not disabled from contesting the proceedings merely by statements or expressions by another party tending to modify the existence or basis of ‘aggrievement’ in the initiating party. I accept that, if during the course of a hearing before the tribunal it emerges that an applicant in truth may not have a ‘sufficient interest’, or if in the course of an application in the Federal Court, in truth an applicant may not be a party aggrieved, the locus standi of that party can be reviewed: see the observations of Bowen CJ in Broken Hill Pty Co Ltd v Trade Practices Tribunal (1980) 31 ALR 401; 47 FLR 384 at 395.”
A careful examination of the observations of Bowen CJ in Broken Hill Pty Co Ltd however, does not support the respondents’ contentions. His Honour said he did not disagree with the approach taken by the AAT in treating standing as a “preliminary” point which could be reviewed if it emerged that the appellant did not have a “sufficient interest”. His Honour was referring to a final decision on standing and was not suggesting that standing was an ongoing requirement that had to be established at the date of the application and at the date of the hearing. Interestingly, Bowen CJ’s approach to whether there was a “matter” (in the sense of a justiciable controversy) before the Trade Practices Tribunal (at 408 and 413) accords with the approach to the nature of judicial power taken in the United States cases to which I have referred. In that context, I take Spender J to be indicating that, if a person no longer has a “sufficient interest” in the relief claimed, the Court has jurisdiction to review the entitlement of that party to continue to seek relief. I do not regard Spender J as confining that question to “standing” rather than “mootness”.
Courts in the United Kingdom have followed a similar procedure to that referred to by Bowen CJ in Broken Hill Co Ltd when discussing determination of standing. In IRC v National Federation of Self Employed and Small Businesses Ltd [1982] AC 617 at 642-644 and 645 a two-stage approach to determination of the question of standing was stated to be appropriate. First, the Court may take a “preliminary” view as to whether the applicant has standing. Second, if the case proceeds, that preliminary view may be reconsidered in light of the merits of the case.
For the above reasons I am of the view that under the AAT Act:
· standing to bring an application for review by the AAT is to be determined as at the date the application for review is made in accordance with ss 27 and 29 of the AAT Act;
· if the circumstances giving rise to standing change, so that the interest which gave rise to the appellant’s standing no longer exists, then the issue arising is whether the application is frivolous and vexatious in terms of s 42B of the AAT Act.
Accordingly, the matter must be remitted to the AAT as it erred in law in failing to consider the standing of the appellant by reference to his standing as at the date of his original applications to the DAA and the AAT and also in failing to consider Transurban’s application that the application to the AAT be struck out as frivolous and vexatious under s 42B.
The AAT’s approach to standing also revealed other significant errors of law which will be relevant to the further hearing of the matter.
The appellant’s standing
In determining whether the appellant had a special interest in the subject matter of the application for review at the date of hearing, the AAT applied “the test” of special interest stated by Gibbs J in Australian Conservation Foundation at 530 and cited by Wilcox J in Allan at 442:
“... an interest, for present purposes, does not mean a mere intellectual or emotional concern. 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.”
In that context the AAT said that the relevant question of what constitutes a special interest is
“whether the person will gain some advantage, other than general satisfaction, if the action succeeds or suffer some disadvantage if it does not.”
It is unfortunate that the AAT framed the question in such narrow terms as, in doing so, it imported a test which in my view, is not a test that would now be accepted as necessarily applicable to all cases of standing to seek administrative review. Whilst there is some support for the AAT’s test (see Aickin J at first instance and Gibbs CJ in Australian Conservation Foundation at 510-511, 530 and Brennan J in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 75-76) recent cases in the High Court have adopted a more flexible test based on the general requirement of a “special interest” in the subject matter which is greater than, or different in kind from, the interest of ordinary members of the community: see for example, Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 and Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 155 ALR 684 and the decision of the Full Court in Allan in the present matter.
In any event, in my view the test under s27(1) of the AAT is flexible and does not limit standing to persons who can demonstrate an advantage or detriment in the sense discussed. For example, the demonstration by an applicant of a commercial or economic advantage if the action succeeded does not necessarily result in a special interest for the purpose of standing. In Alphapharm Pty Ltd v SmithKline Beecham (Australia) PtyLtd (1994) 49 FCR 250, the Full Court concluded that a competitor did not have standing to challenge a decision made under the Therapeutic Goods Act 1989 (Cth) notwithstanding that a successful challenge would give it a significant commercial advantage. The Court held that the competitor’s economic interest in that case in protecting market share against another competitor’s product, was not a sufficient interest when regard was had to the public interest considerations with which the relevant statute was concerned. Conversely, the absence of an advantage or detriment in the sense discussed need not necessarily prevent special interest groups obtaining standing to review a decision. In North Coast Environment Council Inc v Minister for Resources (No 2) (1994) 55 FCR 492, Sackville J held that the North Coast Environment Council was a “person aggrieved” under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) for the purpose of challenging the Minister’s decision to grant a wood-chipping export licence. Factors such as the Council’s status as the peak environmental organisation and specific activities in relation to the preservation of the area the subject of the licence were significant factors in the Court’s assessment of whether the requisite interest existed. In Tasmanian Conservation Trust v Minister for Resources (1995) 55 FCR 516 at 552-53 Sackville J, after considering recent High Court and Federal Court cases, observed that the Conservation Trust’s concern with the subject matter of a decision to grant a wood-chipping export licence and the closeness of its relationship with that subject matter was sufficient to give it standing under the ADJR Act and under the general law. See also Standing: the Role and Evolution of the Test, Margaret Allars (1991) 20 Fed L Rev 83 at 95.
The AAT then considered whether the appellant was able to establish his claim of a diminution in value of his premises of $30,000 by reason of the Melbourne City Link project. In the context of the test posed by the AAT, it is curious that emphasis was placed on the diminution issue alone, for even if, contrary to the view expressed by the AAT, the appellant had established a diminution in value of his property he would still not have satisfied “the test” propounded by the AAT as the appellant would not gain any personal advantage if the action succeeded or suffer some disadvantage or detriment if it did not. On no view of the appellant’s case at any material time since his case has been before the Court was he in a position to recover damages for his loss of amenity or, on the evidence, to prevent the proposed freeway widening.
As the AAT observed, the subject matter in respect of which a “special interest” was required in the present case was the DAA decisions to grant infrastructure borrowing certificates in relation to the Melbourne City Link project. A decision to set aside the certificates, sought on the review, could not as such have resulted in the appellant gaining some advantage nor would his failure to obtain a decision to set aside the certificates lead him to suffer some disadvantage. Undoubtedly, the certificates facilitated Transurban’s borrowings for the project. But, the case does not appear to have proceeded on the basis that any party was contending that the certificates were a pre-condition to the project proceeding. In any event, even if at some early stage they were, in practical terms, a pre-condition the time has long since passed where that remained the situation. As pointed out above, by the time the matter was heard by Mansfield J and the Full Court not only had the borrowings taken place but it was plain that the widening of the freeway and the Melbourne City Link project in general had proceeded to a stage where there was no realistic possibility of it not proceeding to completion.
The test framed and the approach taken by the AAT to the question of whether the appellant had a special interest was too narrow and is not warranted as a matter of law. Further, the AAT’s narrow approach to standing is inconsistent with the outcome of the appeal to the Full Court in Allan. Wilcox J concluded that if the appellant’s amenity was adversely affected by the project in the manner claimed then, for the purposes of s 119(1) of the DAA Act (and implicitly s 27(1) of the AAT Act), he was a “person who was affected” by the DAA decisions. His Honour said (at 446-447) that the appellant will be a person who has suffered “special damage” that is, damage beyond that suffered by members of the public generally, if his amenity was affected in the manner claimed. His Honour’s conclusions at 446-447 (which I have cited above) did not state that the appellant’s standing could only be established if he could show some advantage if he succeeded in his claim or some disadvantage if he failed. Wilcox J did not regard the circumstances giving rise to the appellant’s standing as influenced by the outcome of the review to which he was entitled if standing was established. His Honour said (at 447):
“Mr Allan’s special interests would entitle him to trigger a review but would be irrelevant to the criteria for review.”
A similar approach was taken by RD Nicholson J. RD Nicholson J did not state that the outcome of the review must offer some advantage to the appellant if successful or some disadvantage if unsuccessful. His Honour (at 456) recognised the breadth of the principle of affection under s 27(1) and concluded (at 457):
“In my opinion however, [Mansfield J] did err in his application of the test to the facts before him and did so in the following respects. Firstly the decision, by creating the ability by financing the project, gave life to the decision to proceed with the City Link project. It is that project which the appellant claims will harm his interests. A direct effect of the decision is the City Link project will proceed with the consequent effect of potential for special damage to the appellant. The special damage lies within the point in the pool of sundry interest at which the affection is not remote.
Secondly, there is an interference with a public right involved if the appellant is correct in his contention that the provisions of subs 93O(2) have not been complied with.
Thirdly, I do not consider his Honour was correct in concluding that, even applying the test of standing by Buckley J in Boyce without regard to the terms of the DAA Act, the applicant lacked standing. The decision, by providing the life blood of finance to the City Link project, is one in relation to which the appellant has shown that he has an interest greater than other members of the public. He has a relevant special interest as a consequence of the alleged special damage which he would suffer as a consequence of the project proceeding.”
It is true that Wilcox J in Allan (at 442) cited the statement of Gibbs J in Australian Conservation Foundation that was relied upon by the AAT. However, the citation by Wilcox J was in the context of demonstrating that what constitutes a special interest does not necessarily have to be determined by reference to the scope and purpose of the legislation under which the decision has been made. Unfortunately, the citation was taken out of context by the AAT and used in a manner which re-introduces an inflexible approach which the current approach to standing was designed to remove. It is also true that RD Nicholson J in Allan (at 457) cited a similar observation by Brennan J in Onus but that citation was also in another context, being, it did not matter that the relevant special interest was one held by a large number of persons.
Gibbs CJ in Onus at 36 reiterated that:
· a person 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 the person has standing to sue only if he has “a special interest in the subject matter of the action”.
Thus, whilst in the usual course a particular advantage to the appellant if the claim succeeds, or the suffering of a detriment if it fails, can demonstrate a special interest, the decision in Allan demonstrates that is not always the case. As was said in the joint judgment of the High Court in Shop, Distributive and Allied Employees Association at 558:
“The rule [as to standing] is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest.”
The rule to which their Honours were referring was the requirement of a “special interest” in the subject matter, being an interest which is greater than or different in kind to that of the community. More recently in Bateman’s Bay Local Aboriginal Land Council Gaudron, Gummow and Kirby JJ (at 697), after referring to the above cited passage at 558 in the joint judgment in Shop Distributive and Allied Employees Association, made observations concerning the dangers involved in the adoption of any precise formula of what suffices for a special interest in the subject matter of the action. Whilst their Honours’ observations were directed to equitable intervention in public law, the principles stated by their Honours are applicable generally to standing.
As Brennan J recognised in Onus (at 75), whether a particular plaintiff has shown a sufficient interest in a particular case must be a question of degree, but not a question of discretion. On the question of degree, in Byron Environment Centre each member of the Full Court observed that interests that are remote, insubstantial or merely speculative would be unlikely to constitute special interests (see Black CJ at 7, Lockhart J at 19 and Merkel J at 42).
Whether one approaches the appellant’s “special interest” as at the date of the hearing as an issue going to standing under s 27(1), or “mootness” under s 42B, the principles applicable to standing are plainly of fundamental importance. In accordance with those principles, as at the hearing date, the “special interest” of the appellant in the subject matter (the DAA decisions) arose from the following circumstances:
· the Full Court had determined that, if the Melbourne City Link project had the adverse affect on the appellant’s amenity as claimed, the appellant was a person affected by the DAA decisions for the purposes of s 119(1) of the DAA Act;
· as a person affected by the DAA decisions the appellant was entitled to make a request in compliance with ss 119(1) and (2) to the DAA to reconsider the DAA decisions;
· in the event that he was dissatisfied with the reconsideration of the DAA decisions or, if there was no reconsideration of those decisions pursuant to the request (as occurred in the present case), the appellant was entitled under s 120 of the DAA Act to apply to the AAT to review the deemed confirmation of the DAA decisions that had occurred as a result of the DAA’s failure to reconsider those decisions;
· the change of residence of the appellant in January 1997 did not affect his standing under s 119(1), as standing under the sub-section was to be determined as at the date of the request;
· the appellant (in evidence that was not seriously disputed) stated that the sole reason he changed his residence was to avoid the adverse affects of the Melbourne City Link project upon his amenity;
· the appellant (in evidence that was not seriously disputed) stated that he suffered inconvenience and some financial expense as a result of the change of residence.
If, contrary to my view, standing is also to be established at the date of hearing, all of the above matters are matters which the AAT was required to consider before it could properly come to a conclusion that the appellant had no special interest in the subject matter of the review. The same, or similar matters were required to be considered in respect of Transurban’s application under s 42B. Yet, the AAT made no findings in respect of most of the above matters.
As already pointed out above, by confining its approach to consideration of the diminution in value of the appellant’s previous residence the AAT misdirected itself as to the questions it was required to address. The AAT appeared to regard itself as only having to consider the question of whether the appellant could gain any advantage from the review or might suffer any disadvantage from it. The AAT by confining its inquiry, in effect, into whether the appellant had actually proved special damage, approached the issue of special interest or sufficiency of interest in the present case too narrowly and thus erroneously as a matter of law. Whilst the existence of special damage (in the sense of advantage or disadvantage) might be a significant factor in favour of standing, its absence in the present case does not preclude a finding of a sufficient interest.
Thus, even if standing was an ongoing requirement the AAT also erred in law in its determination of that question.
Is the AAT proceeding frivolous or vexatious?
It follows from my analysis of the statutory scheme and Sinclair, Bowman and Queensland Newsagents Federation that, if the appellant had standing under s 119(1), he is entitled to a reconsideration of the DAA decisions by the AAT in accordance with law. Thus, if at the time of his application to the AAT and at the date of the AAT hearing, the appellant had standing under s 119(1) thereafter his standing primarily arose from his accrued right to the reconsideration of the DAA decisions by the DAA and, upon its refusal or failure to do so, by the AAT under s 120. That standing is not affected by the appellant’s change in residence in 1997. Accordingly, the answer to the question arising under s 42B must depend upon whether the appellant was a person affected for the purposes of s 119(1) that is, the matter remitted by the Full Court for specific determination by the AAT.
I would add that, although there may no longer be any threatened interference with the appellant’s amenity, the expenses and inconvenience of his change of residence were said by him to have arisen solely from the original adverse effects claimed by him in respect of his amenity which led him to make the request under s 119(1). In the event that that evidence is accepted and if, contrary to my view, the appellant’s change of residence can be a relevant consideration, in my view that change is not sufficiently disconnected from the appellant’s original “interest” to result in his application to the AAT being frivolous and vexatious.
It follows from the foregoing that if the appellant can establish his standing to make his request under s 119(1), the AAT is bound, as a matter of law, to deal with his application for review on the merits.
Conclusion
I am satisfied that the AAT erred in law in failing to consider whether the appellant was a person affected by the DAA decisions when he made his request to the DAA for their reconsideration on 13 March 1996 and when he applied to the AAT to review the deemed confirmation of those decisions by the DAA on 13 November 1996.
It is unfortunate that the AAT failed to consider the substantive issue sought to be agitated by the appellant. Plainly, this matter ought to be disposed of by the AAT at the remitted hearing. Thus, even if there is a substantial contest on the s 119(1) issue on the remitter, it would be most undesirable for the AAT to again endeavour to resolve this matter only on the issue of standing without considering the issues arising under s 93O. That is particularly so when one considers that the outcome of the appellant’s application, if successful, has the potential to have significant consequences, not only for Transurban, but also for persons who are not parties in the present matter.
For the above reasons the appeal of the appellant is allowed, the decision of the AAT made on 9 September 1998 is to be set aside and the matter is to be remitted to the AAT for determination in accordance with law.
I have also concluded that the respondents ought to pay the appellant’s costs of and incidental to the appeal. During the hearing I was concerned at the fact that many of the problems that arose before the AAT might have been avoided had the appellant been forthcoming in relation to his change of address at an earlier date. However, it appears that the appellant’s legal advisers formed the view that the change of residence was not relevant to the appellant’s standing. In the result I have found in the appellant’s favour on that matter. Accordingly, it seems to me that there is no proper basis for not ordering that the respondents pay the appellant’s costs.
Finally, the cross appeal of Transurban must also be allowed as the AAT erred in not considering the question of changed circumstances as an issue arising under s 42B of the AAT Act. However, I am of the view that if the AAT had concluded that the appellant had standing under s 119(1) (an issue which the AAT has not, as yet, determined) then as a matter of law, the application under s 42B ought to have failed on the evidence before the AAT. If the appellant was held not to have standing under s 119(1), his application to the AAT would fail on lack of standing and the s 42B question need not arise. In these circumstances, Transurban’s success on the cross appeal should not affect the costs order I propose to make in favour of the appellant. It is appropriate that no order for costs be made on the cross appeal.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel
Associate:
Dated: 14 April 1999
Counsel for the Appellant:
Dr P Mees
Solicitor for the Appellant:
Simon Northeast
Counsel for the First Respondent:
Mr C Gunst QC
Solicitor for the First Respondent:
Australian Government Solicitor
Counsel for the Second Respondent:
Mr P Hayes QC with
Mr T Murphy
Solicitor for the Second Respondent:
Baker & McKenzie
Date of Hearing:
9 March 1999
Date of Judgment:
14 April 1999
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