Allan v Transurban City Link Ltd

[2000] HCATrans 387

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M133 of 1999

B e t w e e n -

PETER ALLAN

Applicant

and

TRANSURBAN CITY LINK LIMITED

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 SEPTEMBER 2000, AT 10.16 AM

Copyright in the High Court of Australia

MR M.A. DREYFUS, QC:  If it please the Court, I appear with my learned friend, MR R.A. HEATH, for the applicant.  (instructed by Northeast Barristers & Solicitors)

MR P.R. HAYES, QC:  May it please the Court, I appear with MR T.P. MURPHY, for the respondent.  (instructed by Baker & McKenzie)

McHUGH J:   Yes, Mr Hayes.  Now, Mr Dreyfus, can I put something to you at the outset?  This case does seem to raise some quite important questions but I think the reality is that your chance of ultimately succeeding, having regard to the particular facts concerning your client, are fairly remote, having read the material.  In those circumstances, is your client prepared to risk a grant of special leave in circumstances where it appears to Justice Hayne and myself, on the material we have read so far, subject to what you may have to say, that you would probably fail on the appeal?  There is no doubt there are some important questions involved in this case but it is very likely, it seems to me, that, on the facts, you will fail, in which case your client would be met with a very substantial bill for the costs of the appeal on special leave application.

MR DREYFUS:   Your Honours, I will need to seek specific instructions on that matter.  Would it be convenient if I did so now?

McHUGH J:   Yes.  Would you like us to stand the matter down and go on to the next matter?

MR DREYFUS:    In view of the indication that your Honours have given and ‑ ‑ ‑

McHUGH J:   Well, Mr Hayes may be able to talk us out of a grant of special leave but, on the surface, there are some very important questions involved in this case.  But given the particular facts concerning your client, once those principles are settled I think there is every prospect that you will probably lose the appeal.  That is my thinking at the moment.  The Court may be changed but it is one thing for your client to be public spirited and bring these matters to the attention of the courts, it is another question whether or not he is prepared to pay the costs of litigation which is going to be unsuccessful.

MR DREYFUS:   Yes.  Justice Merkel has already made an observation about my client’s fortitude, your Honours, and we will see whether his fortitude extends to where your Honour has indicated.  We would be assisted if the matter could be stood down.

McHUGH J:   Yes.

AT 10.20 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY.

UPON RESUMING AT 10.31 AM:

McHUGH J:   Yes, Mr Dreyfus.

MR DREYFUS:   Your Honours, I have sought instructions and I am instructed to inform your Honours that my client, notwithstanding the risks that have been indicated by your Honours, wishes to proceed with the application.

McHUGH J:   Yes, very well.  Well, one thing you will need to address is whether or not there are insufficient prospects of your client succeeding in an appeal.

HAYNE J:   You do that by beginning with the statute, not with the common law.  Can we actually remember that there is a statute which governs these matters and the question is, is it not, is he a person affected by the decision?  Whether you ever get to the common law of standing may be the real and very lively issue which warrants the grant of leave.

MR DREYFUS:   One of the complaints that we wish to make about the second Full Federal Court decision is just the one that has been articulated by your Honour Justice Hayne which is that the consideration of standing proceeds by looking at common law or general law questions of standing and virtually ignores the statute which is, as your Honours indicated, one which raises the question of whether the applicant is a person whose interests are affected by the decision which is sought to be reviewed.

HAYNE J:   Why were they?  Why were his interests affected?

MR DREYFUS:    Because he lived close to a very large infrastructure project, the Melbourne City Link project, which, as indicated in a number of the decisions, your Honours, had a large number of amenity effects on the place where he lived.

HAYNE J:   What then was the decision?

MR DREYFUS:    The decision was one made by the Development Allowance Authority under the Development Allowance Authority Act, to grant a certificate in respect of infrastructure borrowings which can be generally described as a tax concession or a tax incentive.  The granting of that tax concession or tax incentive is one which made possible, we say, the continuation and - or indeed, commencement, and then continuation of the City Link project.  He is, therefore, we say, sufficiently, for the purposes of the Administrative Appeals Tribunal Act, a person whose interests are affected by the decision.

There is a slightly different phrase, of course, your Honours, in the Development Allowance Authority Act itself.  It refers to a person affected by the decision.  We would, however, say that there is not relevant difference between those two in the context of the application for review of the decision. 

Now, your Honours would have seen that Mr Allan has been involved in what is a very long saga of litigation, having first made his application to the Development Allowance Authority in March of 1996, to reconsider the decision to grant this tax concession.  He, of course, says, and this is a different – perhaps I need to say this at the outset, your Honours, the point that he wishes to agitate before the Administrative Appeals Tribunal is a different point from any point that arises in respect of his standing.

The point that he wishes to agitate is that the grant of this tax concession is in clear breach of a provision in the Development Allowance Authority Act, that being section 93O(2)(b). Perhaps if I could take your Honours quickly to it. It is set out, first, in the appeal book at page 9, although it appears in other places, which is in the decision of the first tribunal. Your Honours will see there the whole of the text of section 93O of the Act, that is the Development Allowance Authority Act, is set out, and the particular section that is relevant is 93O(2)(b), towards the foot of the page at about line 22, which is a prohibition reading:

(2)  If:

…..

(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.

Mr Allan’s contention is that the Melbourne City Link Act 1995, is a law falling within the description in this prohibition in section 93O(2)(b) in the Act. He has not, as yet, been permitted to agitate that contention. All of the litigation, which has now consisted of two hearings before a single member of the AAT, and later a three member Tribunal of the AAT, two judges sitting alone in the Federal Court and two Full Federal Courts, one being a court of three and the other being a court of five, have all dealt only with the question of whether or not Mr Allan has standing or is a person who comes within section 27(1) of the Administrative Appeals Tribunal Act.

Your Honours, set out in the decision of the second Full Federal Court is an account or summary of all those various hearings in the two Tribunals, two single judges of the Federal Court and the previous decision of the first Full Federal Court.  The last decision of the Full Federal Court, being the court of five, appears starting at page 146 of the appeal book.

McHUGH J:   Yes, well, we do not want to hear you for the moment.  Yes, Mr Hayes.

MR DREYFUS:    If the Court pleases.

MR HAYES:   If your Honours please, this is not an appropriate case to grant special leave.  The facts of this case make that so.  The Full Court, in the judgment from which leave is sought to appeal, in paragraph 53 on page 161, explained that the relevant agreement and legislation mean, as is said at the bottom of that page, that:

It follows that by the time Mr Allan sought review of the…..decision….., the relevant condition precedent was to be regarded as satisfied or waived.

So the applicant who, for a time, lived quite close to a portion of the road system in question, was not in a position to stop the very thing that is said to underpin his basis for standing. What is more, he moved house, and the City Link is now built and any review of the grant of the certificates in January 1996 will not, and could not, have ever affected its operation. So, if there was standing, which we say the Full Court correctly found there was not, section 42B of the Administrative Appeals Tribunal Act comes into play, it being properly regarded by the Full Federal Court of five as vexatious and oppressive under that section, given that he does not live there, given the other circumstances, to continue with the challenge.

HAYNE J:   Where does the Full Court of the Federal Court decide that?

MR HAYES:   Yes, your Honour, it is at paragraph 69, page 166:

In the present case had we been of the view that Mr Allan did have standing at the time of instituting the application…..we would have been of the view that, had circumstances changed to take away from him the interest in the proceedings he had at the time of application, his application should be dismissed.

McHUGH J:   But is that a question for determination by the Full Court of the Federal Court?

MR HAYES:   Well, it was a matter that had been argued below, unsuccessfully, that in any event, it was vexatious in the circumstances to continue with the matter.

HAYNE J:   I know it may have been agitated, but how?  This litigation seems to be conducted throughout without anybody sitting down with a copy of the relevant legislation and taking the relevant courts to it.  It seems to be conducted for the copy of an elementary administrative law text at hand, reading slabs of it at the courts.

MR HAYES:   We set down the very legislation in detail and the agreement before the Full Court and the Full Court accepted what we said the legislation did.  The legislation here prescribes what you need for standing.  The legislation gives the answer to the matter by pointing out that the whole thing was an exercise in futility and it is an exercise in even greater futility to continue the matter after the road is finished and the gentleman has moved.

So, whilst I accept what your Honour Justice Hayne says, that this matter is a procedural disaster, the fact of the matter is that the granting of standing and the granting of leave has consequences obviously for the shareholders of Transurban – there are lots of people stand to be affected by this.  But if the prospects of success are, as we submit, remote in the extreme, then this is not a good case for the granting of special leave.  It may well, probably will not, determine any tensions as to what is the correct common law test of standing.  There is a statute ‑ ‑ ‑

McHUGH J:   But it is not the common law test of standing, it is a statutory test.

MR HAYES:   That is what I am saying, your Honour, there is a statutory test and Mr Allan cannot possibly ‑ ‑ ‑

HAYNE J:   Do any of the 10 Federal Court judges, who seemed to have considered this matter, refer explicitly to the statutory test as opposed to dilating upon common law questions of standing?

MR HAYES:   Yes, in the most recent decision, the court talks about Mr Allan’s argument being that it is the common law test and says, “We do not agree, but if it is, in any event, it is not satisfied”.

HAYNE J:   Yes, where is that?

MR HAYES:   I will just find it for your Honour.

HAYNE J:   Perhaps your junior can turn it up while you proceed with other matters, Mr Hayes.

MR HAYES:   Yes, it is there, your Honour, I just have not found – page 155, paragraph 32.

HAYNE J:   Yes, the matter:

proceeded upon the basis that the question should be determined by reference to the general law tests of standing – - -

MR HAYES:   Yes.

HAYNE J:   That apparently being the argument of both sides.  It is that which evoked the comment I made.

MR HAYES:   Yes, your Honour.  Well, that was not our argument.  We have always, at least since I have been in it, before the Full Court and Justice Merkel, concentrated on the statutory provision as being the source of standing in the matter.

McHUGH J:   Yes, I know, but the judgment starts with Boyce v Paddington Borough Council, and ploughs its way through the ACF Case, Shop Distributive and Allied Employees Association Case.  It never really seems to concentrate on the statute itself.

MR HAYES:   If the Court looks at page 152, where the court sets out our submissions, you will see, in paragraph 1, it says we submitted that the:

legislative context of the DAA Act which made it clear that the only person who would be….. “affected” –

was.  So we took the court, in our argument, directly to the statute as the source of standing.  It was Mr Allan who has always argued, and continues to argue, that it is a common law test that has to be applied.  We do not, with respect, agree.  We have not agreed.  Furthermore, it is pointed out to me by Mr Murphy, if you go to page 163, paragraph 58, there was specific discussion of section 27 of the Act, talking about:

Where this Act or any other enactment provides that an application may be made –

Again, the court was taken specifically to the statutory enactment brought into play by reason of that section.  So, yes, there is an awful lot of time wasted on a common law test.  No, it is not our fault.  We have argued that it is the statute.  The statute here is quite clear in its application to the facts of this case.  That is why we say this is not an appropriate case for leave.  This case turns on the construction of that particular section, on facts that are unique, and in circumstances where, on those facts, the applicant is very remote, indeed, from any interest being affected.

McHUGH J:   Well, you have at least one judge of the Federal Court, namely, Justice Merkel, who thought that he did have standing.  Then you have a judgment which, no doubt, does refer, as you point out, to the statute, but spends a great deal of time discussing common law tests and then comes to an adverse conclusion to the applicant.  In those circumstances, why is it not a proper case for the grant of leave, notwithstanding that there is a very distinct possibility that this appeal will ultimately fail.

MR HAYES:   The answer is that because this case, in fact, does turn on the statute, because it does, and because the facts on this case, to repeat, nothing that Mr Allan could have done by his application could have altered the course of the road system which he says was the source of his apprehension about the adverse effect; where he had moved, and continued and continues to pursue a claim where he has no interest in; where it is, in those circumstances, specifically within the Administrative AppealsTribunal Act, section 42B, as vexatious and oppressive; where Mr Allan does not claim to represent any public organisation, that is, he claims to be acting by himself as a concerned citizen; and the system has been built, the certificates issued, and nothing that can be done on the matter can affect the harm apprehended.

Finally, to repeat, it turns on the section – we have always argued that.  It is not our fault if the court has dealt with, in detail, a lot about the common law test.  We have argued, as the court sets out, what we said the correct answer was.  In that respect, the court was wrong to concentrate on the common law test.  Justice Merkel, similarly.  But the answer, and on any appeal to the High Court, will be concentrating, substantially, if not
exclusively, on the proper construction of the statute.  That is why we say special leave should not be granted.

McHUGH J:   Yes, there will be a grant of special leave in this case.

AT 10.51 PM THE MATTER WAS CONCLUDED