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Allan v TransUrban City Link Ltd

Allan v TransUrban City Link Ltd

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
PETER ALLAN APPELLANT
AND
TRANSURBAN CITY LINK LIMITED RESPONDENT
Allan v Transurban City Link Limited [2001] HCA 58
11 October 2001
M90/2000
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
Representation:
M A Dreyfus QC with D S Joseph and R A Heath for the appellant (instructed by Simon Northeast)
A C Archibald QC with P R Hayes QC and T P Murphy for the respondent (instructed by Baker & McKenzie)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GLEESON CJ, GAUDRON, GUMMOW, HAYNE AND CALLINAN JJ. The respondent ("Transurban") is the "Link corporation" for the purposes of the Melbourne City Link Act 1995 (Vic) ("the Link Act")[1]. Section 14(1) of the Link Act provides for the ratification and taking effect, as if it had been enacted in the statute, of the agreement made with effect from 20 October 1995 for the construction and operation of what is known as the Melbourne City Link Project ("the Project"). A copy of this agreement ("the Agreement") is set out in Sched 1 to the Link Act. The parties to the Agreement include Transurban and the State of Victoria. The Project involves a toll road comprising roads, tunnels and bridges for the moving of traffic in the Melbourne metropolitan area.
[1]Section 10(1) of the Link Act so states.
The Project at one end commences at the extremity of the Tullamarine freeway. Between January 1996 and January 1997, the appellant ("Mr Allan") owned and lived at a house in Hooper Street, situated some 200 metres from the Tullamarine freeway. As part of the works involved for the Project, the Tullamarine freeway was widened by the construction of six additional lanes in the area between the freeway and Mr Allan's house. Mr Allan has asserted injurious affection of the Hooper Street premises. He also has claimed that, as a member of the Australian Conservation Foundation, he was concerned about the environmental impact of the Project as a whole. The freeway widening works near Hooper Street were commenced in April 1997, that is to say after Mr Allan ceased to live there. By 10 December 1999, when the Full Court of the Federal Court gave the decision from which the present appeal is taken[2], the freeway widening works near Hooper Street had been substantially completed and the Project had been officially opened. In January 1997, Mr Allan, after selling the Hooper Street property, had moved into premises at Brunswick. The Full Court (Black CJ, Hill, Sundberg, Marshall and Kenny JJ) in its joint judgment approached the matter on the footing that it was common ground that Mr Allan's new dwelling was in no way affected by the Project[3].
[2]Transurban City Link Ltd v Allan (1999) 95 FCR 553.
[3](1999) 95 FCR 553 at 557.
Clause 2.7 of the Agreement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] HCA 58
Decision Date: 11 October 2001

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Allan against Transurban City Link Limited concerning the issue of tax certificates under the Development Allowance Authority Act 1992 (Cth). Mr Allan sought to challenge the decision of the Development Allowance Authority (DAA) to issue these certificates, arguing that the decision was unlawful and adversely affected his property interests due to the construction of the City Link roadway. The central dispute revolved around whether Mr Allan had the legal standing to seek a review of the DAA's decision.

The primary legal issues before the High Court were whether Mr Allan was a "person who is affected by a reviewable decision" within the meaning of the relevant legislation, and consequently, whether the Administrative Appeals Tribunal (AAT) had the power to review the DAA's decision to issue the tax certificates. This required the Court to interpret the provisions of the Development Allowance Authority Act 1992 and the Administrative Appeals Tribunal Act 1975, particularly concerning the criteria for making an application for review and the definition of a "reviewable decision".

The Court reasoned that the determination of whether an applicant is "affected by a reviewable decision" should be based on a construction of the specific legislation rather than general principles of standing. It emphasised the importance of administrative law reforms and the undesirability of unnecessarily narrowing the class of persons who can seek remedial provisions to uphold legal compliance. The Court found that the legislation envisaged a broad right to review, and that restricting access to such review based on arguments about potential costs to the Commonwealth or disappointment of lenders was unconvincing. The Court also rejected the respondent's submission that the appeal should be dismissed because the proceedings before the AAT were now futile, stating that the AAT, not the courts, has the power to determine such matters.

The High Court allowed the appeal, setting aside the judgment of the Full Court of the Federal Court. It ordered that the appeal to that Court from the judgment of Merkel J be dismissed, and that Transurban City Link Limited pay Mr Allan's costs in both the High Court and the Full Court of the Federal Court.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

The resolution of the ambiguity in the present appeal may be influenced by the presuppositions with which one approaches the legislation. If one focuses on certain of the words and phrases, a result can be reached requiring that the appeal be dismissed. But if one considers that the context requires a broader interpretation of those words and phrases, the opposite result will follow. I take the latter view in this case because of the opinion I hold about the importance of the large reforms to administrative law enacted in the federal sphere, including by the statutes in question in this appeal. In my opinion, it is undesirable that the class of persons who may enlist the remedial provisions of such legislation should be unnecessarily narrowed, particularly where the object of those persons is to uphold the compliance of the administrator with the law as made by the Parliament.The facts, legislation and common ground The facts are stated in the reasons of Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ[15]. So are relevant provisions of the Development Allowance Authority Act 1992 (Cth) ("the DAA Act")[16] and the Melbourne City Link Act 1995 (Vic) ("the City Link Act")[17]. The most important provisions in question are those of ss 119(1) and 120(1) of the DAA Act and s 27(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). Those provisions state, respectively (with the key words emphasised):[15]Reasons of Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ at [1]‑[13] ("the joint reasons").[16]See joint reasons at [5], [22], [26], [28], [30].[17]See joint reasons at [3]."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 …request the DAA to reconsider the decision.…120(1)Applications may be made to the AAT for review of decisions of the DAA that have been confirmed … under subsection 119(3)."Section 27(1) of the AAT Act states:"Where [an] enactment … provides that an application may be made to the [AAT] for a review of a decision, the application may be made by or on behalf of any person … whose interests are affected by the decision." Section 25 of the AAT Act states that "[a]n enactment may provide that applications may be made to the [AAT] … for review of decisions made in the exercise of powers conferred by that enactment"[18]. Where that occurs, s 25(3) provides that the enactment:"(a)shall specify the person or persons to whose decisions the provision applies;(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and(c)may specify conditions subject to which applications may be made".[18]AAT Act, s 25(1)(a). Power is conferred on the Administrative Appeals Tribunal ("the AAT") "to review any decision in respect of which application is made to it under any enactment"[19].[19]AAT Act, s 25(4).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ, GAUDRON, GUMMOW, HAYNE AND CALLINAN JJ KIRBY J

The cap on maximum cost to the Commonwealth and the possibility of disappointment of the lender of capital[87] are, with respect, the least convincing arguments for adopting a constricted approach to the entitlement to administrative review. Some such review is plainly envisaged. It must therefore be postulated that occasionally, if a review is upheld, costs will need to be reconsidered and annual disbursements by the DAA (and the Parliament[88]) may be affected. To hold otherwise is to read the DAA Act as authorising administrators, by the very substantial financial decisions they make, to place themselves beyond external review. This cannot ultimately apply to judicial review because of the terms of the Constitution. I fail to see why it should be an argument against administrative review which, after all, is only designed to uphold legality and good administration. [87]Joint reasons at [35]‑[36].[88]By s 93Y, fixed by regulation, a cap is imposed on such tax benefits: see Development Allowance Authority Regulations 1995 (Cth), reg 4; joint reasons at [35].Conclusion and orders The respondent submitted that if, as a matter of law, this Court reached the conclusion that the appellant was entitled to reconsideration by the DAA and review by the AAT, it should nonetheless dismiss the appeal on the basis that the appellant's proceedings before the AAT were now futile and therefore bound to fail. That submission should be rejected. The AAT initially determined that it did not have power to entertain the application and so could not decide it on its merits. In the view that I take, that decision was incorrect in law. The role of the courts is confined in such cases to correcting legal error and remitting the matter to be determined by the AAT in accordance with law. The applicable power to dismiss applications on the ground that variation or setting aside of the primary decision is not warranted or that a proceeding is frivolous or vexatious or otherwise uncorrectable belongs not to the courts but to the AAT. It would be an error of law for this Court to purport to exercise the AAT's power of disposition or otherwise to perform the function of decision-making that belongs to the AAT. In the view that I take, it would be open to the respondent to agitate its arguments about relief before the AAT. It is not available in this Court. The appeal should therefore be allowed. The judgment of the Full Court of the Federal Court of Australia should be set aside. In place thereof, it should be ordered that the appeal to that Court from the judgment of Merkel J be dismissed. The respondent should pay the appellant's costs in this Court and in the second Full Court of the Federal Court.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GAUDRON, GUMMOW, HAYNE AND CALLINAN JJ, KIRBY J

In reaching this conclusion, the second Full Court not only differed from Merkel J but also from the approach taken by the first Full Court[23]. It falls to this Court to resolve the differences that emerged in the Federal Court.[23]Allan v Development Allowance Authority (1998) 80 FCR 583 per Wilcox, R D Nicholson and Finn JJ.Upholder of law and good administration or intermeddler? Behind the arguments about the entitlement of the appellant to have review lie a number of questions concerned with what might be called the merits. Neither side has yet had a trial on the merits. For the appellant, the issue which he contended entitled him to reconsideration by the DAA of its decision to grant the certificates to the respondent (and review by the AAT of the DAA's refusal in that regard) was that such decisions were contrary to law (specifically s 93O(2) of the DAA Act) and had helped produce, as a matter of practicality, the widening of the Tullamarine Freeway by construction of the City Link roadway ("the City Link") which adversely affected his property interests. Section 93O(2) provides that the DAA must not issue a certificate under the DAA Act in any case where "there is in force, at the time at which the DAA proposes to issue the certificate … a law that the DAA is satisfied will prohibit or restrict the operation of other facilities in competition with the infrastructure facilities concerned". The appellant wished to contend that this provision (said to have followed the Hilmer Report on competition policy[24]) had been breached by the provisions of the City Link Act. That Act provides for the ratification of an agreement between the Crown in right of the State of Victoria, the respondent and other bodies which is to take "effect as if it had been enacted in this Act"[25]. The appellant argues that, by the clauses of the Agreement, provision is made that effectively prohibits, or restricts, the operation of any facilities that would compete with the toll road envisaged by the City Link Act. Most notably the appellant relies on the provisions obliging the State of Victoria to indemnify the respondent (and others) against losses in toll revenue incurred by the establishment of an alternative connection between the Melbourne Airport and the city, for example, by a rail service such as has been built to and from other major Australian airports[26]. [24]Australia, National Competition Policy: Report by the Independent Committee of Inquiry, (1993) ("the Hilmer Report").[25]City Link Act, s 14; Sched 1: Agreement for the Melbourne City Link ("the Agreement").[26]The Agreement, cl 2.4(e). From these provisions, and others envisaging restriction of the use of non-toll roads adjacent to the City Link, the appellant wishes to contend that the legal prerequisites to the issue by the DAA of the certificates had not been met. Competition with the infrastructure facilities, the subject of the certificates, is prohibited or restricted by law. Therefore, so the appellant suggests, any lawful and reasonable decision of the DAA on an application for the issue of the certificates required that it "must not issue the certificate"[27]. The appellant has not yet been able to obtain an authoritative ruling on this point.[27]DAA Act, s 93O(2).