Argos Pty Ltd and Ors v Simon Corbell, Minister for the Environment and Sustainable Development and Ors

[2014] HCATrans 101

[2014] HCATrans 101

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  No C22 of 2013

B e t w e e n -

ARGOS PTY LTD ACN 008 524 418

First Applicant

CAVO PTY LTD ATF DEMOS FAMILY TRUST T/AS IGA KALEEN SUPERMARKET ACN 096 897 862

Second Applicant

KOUMVARI PTY LTD ATF VIZADIS FAMILY TRUST T/AS IGA EVATT SUPERMARKET ACN 081 122 492

Third Applicant

and

SIMON CORBELL, MINISTER FOR THE ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

First Respondent

AMC PROJECTS PTY LTD ACN 092 706 128

Second Respondent

NIKIAS NOMINEES PTY LTD ACN 008 519 775

Third Respondent

AUSTRALIAN CAPITAL TERRITORY PLANNING AND LAND AUTHORITY

Fourth Respondent

AUSTRALIAN CAPITAL TERRITORY EXECUTIVE

Fifth Respondent

COMBINED RESIDENTS ACTION ASSOCIATION INCORPORATED ASSOCIATION NUMBER A05140

Sixth Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 MAY 2014, AT 9.35 AM

Copyright in the High Court of Australia

____________________

MR N.C. HUTLEY, SC:   If your Honours please, I appear with my learned friend, MR C.L. LENEHAN, for the applicants.  (instructed by Bradley Allen Love Lawyers)

MR P.J.F. GARRISSON, SC, Solicitor‑General for the Australian Capital Territory:   If it please the Court, I appear with my learned friend, MR J.J. HUTTON, for the first respondent.  (instructed by ACT Government Solicitor)

MS M.N. ALLARS, SC:   If the Court pleases, I appear for the second and third respondents.  (instructed by King & Wood Mallesons)

CRENNAN J:   Yes, Mr Hutley.

MR HUTLEY:   Thank you, your Honour.  At the trial, each of the applicants led evidence of the likely impact upon it of the decision to approve the development about which complaint was made.  At application book 62, reference in the Full Court is made briefly to the nature of that evidence in paragraphs 39 to 41.  I will return to the absence of analysis of that evidence in due course.

Each impact properly is characterised as economic, and the processes which would drive the impact might be characterised as those of trade competition, and each of the impacted processes might be qualified by the word “solely”.  The Court of Appeal held at paragraph 38 in the first instance ‑ ‑ ‑

KIEFEL J:   Why do you say “solely”?  If the supermarket is forced to close down there are effects for the community?

MR HUTLEY:   We would not say that.  I am prepared to accept ‑ ‑ ‑

KIEFEL J:   To take it at its highest.

MR HUTLEY:   Take it at its highest, solely economic effects.  Paragraph 38 of the judgment of the court says:

Save as to each corporate appellant’s alleged interest in the maintenance of the hierarchy . . . which is considered below, the corporate appellants have not identified any special interest over and above their respective economic interests.

The court returned to this at paragraph 46 and said:

there is no suggestion that the amenities (such as car parking . . . of the shopping centres owned or controlled by the corporate appellants will be affected by the proposed development.  For the reasons expressed by Higgins CJ, the Court considers that the alleged interests of the corporate appellants rise no higher than that of an economic interest.

It goes on, and then at paragraphs 49 and 50:

As we have already found, the proposed development in the present appeal gives rise to an interest on the part of the corporate appellants in trade competition only.

Then the conclusion they lack standing. That was meant that none of the applicants were persons aggrieved by the decision. Your Honours are familiar obviously with the terms and the words “aggrieved by a decision” are not a defined term. At section 5 of the Administrative Decisions (Judicial Review) Act (ACT), which your Honours will find at 148 in the additional materials, those words are augmented by that which appears in section 3B which your Honours will find on the preceding page:

a reference to a person aggrieved by a decision includes a reference to—

(a)a person whose interests are adversely affected by the decision –

Now, your Honours – and I think there is no dispute – those words are identical or almost identical with many Administrative Review Acts throughout this country, of course, the Commonwealth Act, and they are footnoted at application book 88.

Now, there has been a change to the ACT Act, as your Honours, know, and that is reflected in the new 4(a), which appears at application book 152 to 153, but still, subsection (2), with respect to what are described as “category A” decisions, the words “the persons interests are, or would be” likely to be affected apply and that applies category A as to obviously important decisions of planning and the like. Why it is that the impacts identified by the Court of Appeal do not satisfy the terms of section 5 with or without reference to 3B(1)(a) is, with respect, wholly unclear.

CRENNAN J:   What about - as I understand the point put against you, the authority of Bateman’s Bay Case (1998) 194 CLR 247 at 267 to 283 seems to be accepted on all sides here and as I understand what is put against you is that treating the question as one as to whether the corporate applicants – whether the affectation as a matter of practical reality is immediate, significant and peculiar to them – that rubric from Bateman’s Bay, as I understand it, it is put against you, well, the adverse result received was really one of a factual result, a matter of fact and degree that that test simply was not satisfied.  In other words, the point put, I think, is this – that adverse affectation of economic interests may, in some circumstances, depending on the scope of the statute under consideration and so on, satisfy what I will call the Bateman’s Bay test, and some economic interests which are affected may not.  So I am just raising with you, Mr Hutley ‑ ‑ ‑

MR HUTLEY:   I understand, your Honour.

CRENNAN J:   ‑ ‑ ‑your answer to, as I understand the case, put by the respondent, to resist special leave being granted, which is that this was just a finding as to matters of fact and degree.

MR HUTLEY:   Can we say, with respect to Bateman’s Bay, Bateman’s Bay was obviously a decision about what might be called the common law standing; that is not the statute, they are not identical.  What we say the statute posits is (a) an inquiry as to is a person affected by a decision and that is to be dealt – augmented by persons whose interests are adversely affected by a decision.

CRENNAN J:   How do we differentiate between, say, a remote effect and an effect which is sufficient, as it were?

MR HUTLEY:   In our respectful submission, danger lies in using concepts of “direct” and “remote”.  What we say is all decisions, or many decisions – take a planning decision – the immediate effect of the decision is, in one sense, nothing because the decision then has to be implemented.  It has to be implemented.  Something has to be built.  Something then has to attract custom and the custom has to have effects, whether it covers your driveway or wipes one’s business out.  So, therefore, one is involved in a predictive analysis of a whole series of contingencies.  Certain decisions are obviously direct, if one is sent out of the country ‑ ‑ ‑

CRENNAN J:   Or obviously significant in some respect.

MR HUTLEY:   Exactly, but when one is dealing with inquiries of this variety, most effects will be strictly indirect; they will not be direct of the decision, they are of their nature indirect.  The concept of “remote”, we say, diverts attention from the inquiry.  What one has to do is analyse the evidence and here, for example, in point of fact there were two experts reports put on by my client, there was lay evidence from their executives going to the anticipated impact upon the businesses of the two shopping centres.  No analysis of that is found, with respect, in the court, none.

Until one has analysed that material and made a determination of its cogency ‑ because if, for example, it is cogent that the likely economic working of the putting in place of this that we will be adversely and significantly adversely found, we say that is no different in point of detail to the shopping centre immediately next door whose parking is interfered because from the organisation’s point of view it is the economic impact of having bad parking, it is exactly the same economic impact we are talking about, and one has to determine the cogency and “direct”, “remote” and the like, if they are no more than speaking that there has to be some intervening causal chain does not assist.

Now, it may be that when one analyses that causal chain, it may be become wholly speculative, but none of that takes place because the court characterises economic loss as being different and we say it is not different at all.  That is, we say, an important issue about this legislation.

CRENNAN J:   That is your point of general principle, as I understand it.

MR HUTLEY:   Principle.  We say, first, what you have to do is look at the evidence and analyse is an interest affected or is there cogent evidence of being aggrieved, and aggrieved obviously must be substantial injury of some variety.

KIEFEL J:   So that is the only qualification.  It has to be something more than an insubstantial affect.

MR HUTLEY:   Yes.  Fanciful, insubstantial, direct, indirect, remote; these are concepts which really just hide the inquiry.  They really in effect assume the conclusion and, in our respectful submission, they reflect a concern of floodgates basically.  With all due respect to - in past, the courts, the Federal Court have referred to the ripple effect and the like, that just directs attention away from the inquiry.  The legislation chooses the word “buy” and it is not “buy” in the trade practices old section 82 - I can never remember the new section - section 82 of causation ‑ ‑ ‑

CRENNAN J:   Showing your age there.

MR HUTLEY:   These things are done as a test for early onset of Alzheimer’s, these amendments – because the “buy” here is necessarily predictive in many cases.  So you have to look at the cogency of the evidence.

CRENNAN J:   You have to look at the affectation revealed by the evidence in the context of the decision under that particular enactment.

MR HUTLEY:   Quite.  Well, that is another issue of general importance, we say.  The cases in this Court have concerned, as it were, administrative review provisions internal to a particular Act, dealing with a particular subject matter.  These administrative decisions, judicial review type Acts, are of plenary operation.  Their purpose is to be divined from that Act. 

Obviously, the decisions under the enactments to which they apply may inform one as to the likelihood of causal relations but those Acts cannot change the policy or constructions of the AD(JR) Act and it just says aggrieved by a decision and person whose interests are adversely affected.  If they are and the court is satisfied that it occurred, the reason why they are, by reference to the Act under which the decision is made, may be wholly irrelevant.

KIEFEL J:   But it is not necessary to resort to floodgates arguments.  The concern that might require some qualification such as that the effect be a real effect and not insubstantial may simply be that without some kind of standard, it is not so much floodgates as that a person then interfering between another person or corporation and the decision which favours them, which has been given, is standing in a position of really an officious person.

MR HUTLEY:   I accept that, your Honour.  But all I say is that when one reads the cases there is in the reasoning a concern that this will make it unworkable.  I accept completely what your Honour has put.  We accept there has to be in the concept of being a person aggrieved, injured, there has to be a concept of real or substantial injury, not imagined, not fanciful, not passing, not as it were in the old nuisance sense – that which living in a complex society is the buffeting of life, those sorts of concepts.  That is why the word “aggrieved” is not being just, for example, by the person affected.

The concept of “aggrieved” is of a harm or injury of substance.  That, in effect, is also adversely affected in a person whose interests have a similar concept.  “Adversely” is a relative term, relative to what one could expect in the ordinary course of events, as it were, or such like.  What we say is that the jurisprudence which is developed in this field which is reflected in a sense, if one goes to the decision, by the recitation of the relevant case law in paragraph 29 at application book 58, and then the analysis undertaken by the court at 60 from paragraphs 33 through to 36 reflects overlay after overlay of, in effect, metaphor.  The metaphor, such as economic interests or of some lesser standard, is driving decisions rather than, in effect, are you aggrieved or are your interests affected ‑ ‑ ‑

CRENNAN J:   What about – perhaps this will be a point for reply, but there is a suggestion that this is not a suitable vehicle because most of the

substantive grounds in the appeal were abandoned on the appeal, or not pressed, or something of that order.  What is left in the substantive case?

MR HUTLEY:   Your Honour, there were a number of points - I have not come, because they simply were not addressed by the Full Court, so we have not heard it.  I have not come ‑ ‑ ‑

CRENNAN J:   I understand how things happened in the Full Court, but there is this point.  Why do we not let the respondent explain the point; one of them?

MR HUTLEY:   Yes, but your Honour, shortly put, that is our argument.  In effect, there are sedimentary deposits that have built up and they are driving outcomes rather than the language and this Court, other than reference to it at paragraphs 42, I think, to 44 in Tang, has not had an opportunity to consider this fundamental regime for the operation of administrative review in this country.  In our respectful submission, this is the perfect vehicle for that.  Those are our submissions.

CRENNAN J:   Thank you, Mr Hutley.  Yes, Mr Garrisson.

MR GARRISSON:   If the Court please, I ask Ms Allars to present before me?

CRENNAN J:   Certainly.  Yes, Ms Allars?

MS ALLARS: If the Court pleases. The second and third respondents say that special leave should be refused for two reasons. The first is that the Court of Appeal did not state, whether as a general principle, or in some other way, that a commercial interest cannot found standing under sections 5 and 3B(1)(a) of the ACT AD(JR) Act. There is no question of legal principle which properly could be given special leave. The second reason is that the application in reality is a complaint about a factual finding made by the court. That is a finding about the remoteness of the claim’s commercial interest from the subject matter of the action. That involved a curial assessment – a question of fact and degree – which is not properly the subject of appeal.

If I can turn to the first reason, your Honours, the context in which the Court of Appeal proceeded was that of the judgment below of his Honour Justice Burns.  If your Honours could turn to page 23 of the application book, at line 8, paragraph 49 of Justice Burns’ decision, he proceeded on an assumption favourable to the applicants that there was an adverse economic interest on them.  Further down, at line 31, paragraph 51, he stated the principle:

Economic interests may provide the basis for standing -

He then referred to the leading case under the federal AD(JR) Act, Australian Storeman Stevedores Association v Crone, where his Honour Justice Pincus said that if an applicant is not directly affected, then standing will not be established.  Your Honours, the word “direct” - “indirect” has the same meaning as remoteness – in some cases other words are used, such as “sufficient”, or “insufficient”, “close”, “proximate” or, as in Bateman’s Bay, as your Honour Justice Crennan noted, “significant, immediate and peculiar”.  They are all words which describe the remoteness test. 

Justice Burns then proceeded on page 24 of the application book, at line 25, paragraph 53, to conclude that the claimed commercial interest was “too remote”.  Your Honours will see that at line 32.  Your Honours then turn to the Court of Appeal ‑ ‑ ‑

KIEFEL J:   What does that mean in context ‑ it is too remote?

MS ALLARS:   Your Honour, the context is that the Court of Appeal agreed with what Justice Burns said at paragraph 51.

CRENNAN J:   But, I think your attention is being direct to the sentence above in paragraph 53:

have an effect on their profitability, based on how they currently run their business.

MS ALLARS:   Yes.

CRENNAN J:   In what sense is that too remote?

MS ALLARS:   Well, remoteness being a question of degree, there was a claim of an effect on profitability and that claim and the evidence provided in support of it was found by Justice Burns to be too minor to get over the line and to become direct, to become sufficient, to become significant, immediate and peculiar.

KIEFEL J:   Is his Honour saying that that stands in contrast with the conclusion that he refers to at paragraph 49, that they cannot show that they would be unable to trade?

MS ALLARS:   In paragraph 49, your Honour, Justice Burns says that the evidence is not persuasive that they would be unable to trade ‑ ‑ ‑

KIEFEL J:   That they would be unable to trade.  He seems to imply that if they could show that, that might be sufficient.  So what he is talking about is a sufficiency argument.

MS ALLARS:   Yes, I accept that, your Honour.  He is looking for evidence that will show the sufficiency ‑ ‑ ‑

CRENNAN J:   Well, he accepted there is an adverse economic effect.  He is prepared to accept that.

MS ALLARS:   Yes.

CRENNAN J:   Then he seems to proceed to assess whether it is a significant adverse economic effect.

MS ALLARS:   Yes.

KIEFEL J:   He seems to say it does not go far enough.  It is just an effect.  It will not have the effect of closing them down.

MS ALLARS:   Yes, I accept that, your Honours, and reference has been made by my learned friend, Mr Hutley, to the evidence.  The evidence in support of the claim to standing by the lay witnesses simply made allegations about closing down, about adverse impact.  Mr Hutley may perhaps be referring to evidence of an expert witness which was directed to meeting a particular report on commercial impact which related to the basis on which the planning decision was made.  That was a report which was not made for the purpose of establishing standing, but which was made as a response to the report prepared on behalf of the applicant for development consent.

KIEFEL J:   But there is a difference between how the primary judge approached it and the Court of Appeal, is there not?

MS ALLARS:   Your Honour, if I can take your Honour to the Court of Appeal decision at application book page 59 at line 16, paragraph 31, in saying that “It was recognised by the primary judge at [51]”, and then proceeding to deal with Crone’s Case, in my respectful submission, the Court of Appeal agreed with what his Honour Justice Burns said as a matter of principle at paragraph 51 of his judgment. 

Your Honours, the court then proceeds to deal with Crone’s Case and four lines from the foot of page 59 it notes that that Justice Pincus found that the interest was “too remote” and of course Crone’s Case is a case where it was accepted that a commercial interest may found standing, but it is a matter of assessing it and seeing whether it is sufficiently direct or whether it is too remote.

Your Honours, the judgment then proceeds in paragraph 33 on page 60 to deal with the Big Country Case and your Honours will see that the quotation in that paragraph from the judgment of Justice Lindgren indicates that again it is the remoteness test that matters, applied on the basis that there is the potential for a commercial interest to found standing, but the test must still be applied. 

The court then proceeds to deal with Jewel Food Stores, an ACT case which involved a statutory standing test of interests affected, and at the top of page 61 the quotation from that case again uses the word “sufficient” to describe the fact that the commercial interest there was too remote.  A claim was made that economic prospects were less favourable, but that in itself was not sufficient.

The reference in paragraphs 36 to 37 to the Boots Case and the Bateman’s Bay Case indicate that the Court of Appeal was well aware that there are cases where a commercial interest does found standing and is found to be “sufficient”, the word that appears twice in paragraph 36 at lines 12 and 18, or the economic or commercial interest may be “immediate, significant and peculiar”, as in Bateman’s Bay ‑ line 31 of the judgment.  So there is recognition that the assessment could go in that direction. 

The final conclusion in paragraph 38 of the Court of Appeal was that the interest in this case was not sufficient, and that is plainly an application of the remoteness test which has just been discussed in the preceding paragraphs 31 to 37.  I note that my learned friends for the applicants studiously avoid any reference in their summary of argument or their oral submissions to paragraphs 31 through to 34 because those are the paragraphs where the principle is correctly stated. 

It is important, your Honours, in my submission, to consider the structure of the Court of Appeal’s judgment.  The appellant’s submissions are set out from page 56, paragraph 24 through to paragraph 30.  The applicant’s summary of argument places primary emphasis on one particular subparagraph in that summary of the party’s submissions, and that is paragraph 29(d).

We have set out in our summary of argument why there is a misconstruction of that paragraph on the part of the applicants in their summary of argument and that would have to be the case given that the court’s reference to Bateman’s Bay and to Boots indicates that the court is well aware that in those cases the commercial interest did found standing.

Your Honours, the remaining structure of the judgment is that ‑ commencing with paragraph 31 on page 59 and through to paragraph 50 on page 65 – there are three claimed bases for standing that are considered by the court.  I have dealt with the first one, which is considered in paragraphs 31 through to 38; that is the commercial interest that was claimed founded standing.  The second one is dealt with in the paragraphs commencing from 39, and that was the claim that an alleged commercial hierarchy was put in place by the ACT planning legislation.

On considering that, the Court of Appeal concluded at paragraph 46 on page 64 that that should be rejected on either or both of two bases.  The first basis was that claim to standing boiled down to the same claim as the first one, that is that there was a commercial interest and it should simply be accepted to be sufficient.  The second basis for rejecting it was that there was a mere concern – and, your Honours, one sees that in the last line of paragraph 46 – a mere concern about trade competition.

In the line above that an interest – sorry, a concern about adhering to provisions of the ACT planning legislation was a concern no different than that of any other member, any other resident in the ACT.  So it is very plain from the ACF Case that a mere concern or belief does not equate to an interest.  There is a distinction between concerns and fears about trade competition and an interest amounting to an interest in protection from trade competition.

Your Honours, the third component of the court’s reasoning is found at paragraphs 47 through to 49, and that deals with the argument of the applicants that where commercial matters are a relevant consideration in the Peko‑Wallsend sense, a person who is concerned about that relevant consideration has standing to seek review.  That submission was a fallacious one, it had no support in the authorities and if it were correct then any person would have standing and the test under the AD(JR) Act would be undermined in any planning case.

So, your Honours, the conclusion at paragraph 50, sums up the court’s rejection of each of those three claimed bases for standing and we say that nowhere in the judgment does one find a statement by the court that a commercial interest is a type of interest that does not found standing.

Your Honour, perhaps in desperation in their reply the applicants have had resort to material extrinsic to the judgment in order to demonstrate to the Court that there is a misstatement of principle and it is purely for that reason that the second and third respondents have, in their additional materials, put on some material directed to putting that into context.

Four matters in response to the reliance upon the extract from the transcript below:  first, one does not find anywhere in the Court of Appeal’s judgment reference to that exchange.  One does not find any reference to the Manuka decision which is the subject matter of that exchange.  Nor is there any reference to amenity being some kind of necessary, additional factor in order to the meet the remoteness test.

Secondly, his Honour Justice Cowdroy, with whom the exchange occurred made it plain that he was only prepared to rely upon written submissions and that any oral submission should not be additional to or inconsistent with the written submissions and your Honours find that in the additional materials, page 1 at lines 32 to 36, page 2 at lines 23 to 24 and page 4 at lines 33 to 34.

Third, your Honours will see that the written submissions of the second and third respondents on the question of standing, which are from page 9 of the additional materials, in particular from paragraph 3.8 through to paragraph 3.35 of those submissions work on the premise that a commercial interest can potentially found standing and say that the only issue is one of remoteness and every paragraph in that part of the submissions is directed to the question of remoteness, the question of fact and degree and it considers the various cases and the way in which that test was applied in different factual situations.

Your Honours will see that if one goes over to page 5 of the transcript, page 5 of the additional materials, that the respondents were at pains to dislodge the submission made on behalf of the appellants that remoteness was not part of the standing test - that is at lines 1 to 3 on page 5 - and sought to persuade the court that remoteness was part of the test. 

Your Honours, in that part of the transcript which is extracted, we say that counsel was responding to a question put by his Honour Justice Cowdroy, page 1 of the additional materials at line 32, where his Honour asked for an example of a case where an applicant with a commercial interest got across the line and it happened to be the case that counsel thought of the Manuka decision as an example.  The comments that were made were directed to that example and reference to the Manuka decision bookends the exchange.  It is not a discussion about general principle.  That occurs after the exchange about the Manuka decision.

Your Honours, I turn to the second reason why special leave should be refused - that is that ultimately, as is set out in the applicant’s summary of argument, paragraph 29 on page 86 of the application book, the complaint is that the Court of Appeal found that the applicant’s commercial

interest was too remote and not sufficient, and not “immediate, significant and peculiar”. 

In reply, the applicants retreat from that claim, recognising that this is a complaint about a factual finding.  In place of it they say the Court of Appeal never engaged in a curial assessment of the factual question itself.  That is plainly incorrect, your Honours – I see the light is on, but I briefly refer your Honours to paragraphs 27 to 29 and 38 to 44 of the Court of Appeal’s judgment where it does grapple with the claimed commercial interest of the applicants.  Your Honours will see there that, as we have contended, it is a question of fact and degree, and that indeed is the basis on which the Court of Appeal rejected the claim to standing.

CRENNAN J:   Are you going to say anything about the suitability of this application as a vehicle?

MS ALLARS:   Yes, we say there is no question of public importance involved because this is simply a factual question.  If this matter were argued on appeal, we would be returning to the matters that I have just addressed - that is, whether there is an error on the proper construction of this judgment.  We say there is not.  This would not offer an opportunity to look at the common law test of standing, or the test of standing in this Court’s original jurisdiction.  It would be very much confined to the facts of this case.  If the Court pleases.

CRENNAN J:   Thank you, Ms Allars.  Mr Garrisson.

MR GARRISSON:   If the Court please, the first respondent respectfully adopts the submissions of the second and third respondents and Ms Allars’ oral submissions.  In essence, we say that really this is a case about a distinction without a difference.  The parties all agree what the correct approach is to determining the question of standing, and relevantly it is the test that is set out by his Honour Justice Lindgren in Big Country, and your Honours have been taken to that.

KIEFEL J:   How far did the evidence go in terms of the effect upon these supermarkets?

MR GARRISSON:   I apologise, your Honour, I ‑ ‑ ‑

KIEFEL J:   How far did the evidence go in relation to the effect that the proposed development would have on them?

MR GARRISSON:   The evidence did not go very far at all, your Honour.  The evidence comprised statements by the owners of the businesses that the world was going to end and they would have to close their businesses.  There was no expert evidence directed to the actual economic or other impact on the applicants and their business.

KIEFEL J:   Well, the primary judge at paragraph 53 made a finding that it would “have an effect on their profitability”, so there must have been some evidence to found that finding.

MR GARRISSON:   Just as, your Honour, any development is going to have an effect on a business in an area, and if I can take your Honour to page 62 of the court book, in the Court of Appeal’s decision it outlines the evidence at paragraphs 39 to 41 and the weight of that evidence is to merely raise the prospect of loss.  It says:

the sublessee of Argos, will suffer significant loss and could be forced to close . . . 

Cavo, as trustee for the Demos Family Trust, trades as Kaleen IGA . . . claims that the development at Giralang will impact upon the trade at Kaleen IGA and also may force it to close down.

KIEFEL J:   Presumably no one objected to this evidence?

MR GARRISSON:   I do not believe so, your Honour, but there was no evidence beyond that to establish that there was a relevant effect that was other than remote.  The Court of Appeal ‑ ‑ ‑

KIEFEL J:   I just really do not know what this word “remote” has to do with anything – I can understand that the effect is not great, or sufficient, that kind of gradation – but remoteness – what, geographical remoteness?  What are we talking about?  The dreaded word “proximity” appeared somewhere in the middle of all of this.  That is a very unfashionable term.

MR GARRISSON:   Your Honour, we concede that if there was evidence of a direct economic impact on the business of the applicants, then the Court would have something to distinguish it ‑ ‑ ‑

KIEFEL J:   His Honour made a finding at paragraph 53 - there will be “an effect on their profitability”.  That is direct.  The question his Honour seemed to raise at paragraph 49 was that they needed to go further and prove that they would be forced to close.  Well, there was some evidence about that, but his Honour appears to have discounted it.  I just do not know how.

MR GARRISSON:   Well, as a finding of fact by the trial court, which the Court of Appeal saw not to disturb.  It is a question of degree.  There is no finding by the Court of Appeal that there is a general rule that economic interests cannot form the substance of giving rise to it being ‑ ‑ ‑

KIEFEL J:   That raises the question then, when will economic interests be sufficient for standing?

MR GARRISSON:   When the court is persuaded that there is an interest that is a real interest, and when they have evidence of it, and there was simply no evidence before the court in relation to that.

KIEFEL J:   Would you accept that, as his Honour the primary judge appears to have found that if they had shown that they would be forced to close their business that would be a sufficient interest?

MR GARRISSON:   If there was evidence that persuaded the court to that effect, yes, your Honour.

KIEFEL J:   Well, why is that sufficient and a serious effect on their profitability not sufficient?  Where does one draw the line?

MR GARRISSON:   The question is the assessment of the evidence that was before the court.  There was no expert evidence about the effect of the supermarket that was proposed that was sufficient to persuade the court that the prospect of them having to close their business was real.  The Court of Appeal has not found that there is a special rule that says because it is economic loss therefore you are out of play.  They simply have not done it.  That is the allegation that is made against the Court in this application.  They have not done that.  They have applied ‑ ‑ ‑

KIEFEL J:   What do you say that the Court of Appeal stated as the test?

MR GARRISSON:   It adopted the test from Big Country which all the parties agree is the proper and appropriate test and that a person’s whose economic interests are only affected by a decision, it depends on the remoteness of the interest from a decision‑making activity and the level of affectation.  The statement by his Honour Justice Lindgren, which is at page 8 of the respondent’s materials, the first case, paragraph 92E, which is the accepted statement ‑ ‑ ‑

CRENNAN J:   That gives a provenance to this use of the word “remote”.

MR GARRISSON:   His Honour in distinguishing, in effect, someone having to establish anything other than simply the effect that it is going to have on a range of activities:

The “ripples of affectation”, in financial or commercial terms, arising from administrative decisions extend far and wide, and it is unthinkable that Parliament intended by ss 5(1) and 3(4) of the AD(JR) Act to accord standing to every person who has a financial or commercial interest which is adversely affected by a decision, no matter how “remote” that interest may be from the decision‑making activity and no matter how minor the affection.

It is a question of degree.  The trial judge found that he was unpersuaded by the evidence that the affectation was significant such as to give standing.  That is a question of fact and question of the evidence and nothing that is said by the Court of Appeal disturbs the legal test that applies to the question of standing and it upheld the finding of the judge at first instance.

Your Honours have already been taken extensively to the references in the Court of Appeal judgment and I will not trouble your Honours with those other than to say that they accepted the primary judge’s conclusion that a possible effect was “too remote”, that is at paragraph 22 of the judgment.  In relation to the evidence that was before the court, which is summarised at paragraphs 39 to 41 in the Court of Appeal’s decision, it is simply a case where the evidence did not rise higher than establishing a possible impact.  The Court found consistently with that found by Justice Higgins, as he then was, in Jewel that a possible impact on economic interests through increased trade competition was not sufficient.

The balance of the matters in relation to the judgment have been addressed by Ms Allars and, read fairly, your Honours, the Court of Appeal’s conclusion was that in this case where all that has been established was a possible economic impact through trade competition the interest was too remote from a decision‑making activity and the degree of affectation, more importantly, was too slight to amount to a special interest in the sense of distinguishing it from the interests of the community or the business community at large to establish standing and that, therefore, they were not persons aggrieved.

KIEFEL J:   The notion of a person being aggrieved is something which sets them apart from other people.  I suppose that is the Australian Conservation Foundation approach ‑ ‑ ‑

MR GARRISSON:   Yes, your Honour.  Australian Conservation is really the starting point, and even though it was not dealing with the statutory rights of review it did go to standing and it did go to establishing that persons have to distinguish themselves from the larger community.

KIEFEL J:   Well, they would here, would they not?  They would satisfy that test?

MR GARRISSON:   We would say not, your Honour.  If one looks at the other common law decisions, Bateman’s Bay is relied upon, but in Bateman’s Bay the competitors, for want of a better term, were not just competitors in the marketplace, they were competitors in relation to a very specific service that was being provided and that, with respect, is sufficient, I think, to deal with the outcome in Bateman’s Bay.

Here we have a competitor, we have a long series of disputation between those competitors and this proceeding is about competition.  There is nothing in the Court of Appeal’s decision that respectfully departs from accepted legal principle.  It has no particular significance in the law because everyone is agreed on what the statements of legal principle are and there is little work, we respectfully say, for this Court to do in righting any wrong in relation to principle; we say there is none.

Your Honours have been taken to the parts of the judgment of the Court of Appeal where they have indicated the authorities that they rely upon and their findings in relation to those authorities and they are entirely conventional.  Unless your Honours have any further questions.  As the Court pleases.

CRENNAN J:   Thank you, Mr Garrisson.  Yes, Mr Hutley.

MR HUTLEY:   Your Honour, in our respectful submission, concepts of “direct”, “indirect”, “remote” and the like have no place.  The statute has to be applied according to its terms.  One has to, in effect, inquire into the affectation and you have to then make an assessment, is it by the decision.  Of course, it is only – any decision with respect to this is going to be possible because the decision contemplates the building of infrastructure.  It is only possible that you will be overshadowed by the decision because you have to build the structure, so that goes nowhere.

What we say is concepts of “remote” merely cloud the issue and, with respect, if Justice Pincus’ judgment insofar as in Crone’s Case has this requirement of direct then, with respect, it is wrong and should be reviewed by this Court.  Justice Lindgren’s decision, to the extent that refers it to the ripples and driving away from the consideration would also be incorrect and overturned by this Court.

Now, some submissions have been made about little evidence being led.  We have here, your Honour, an affidavit, one of the affidavits of an Ellen Robertshaw who was an expert who was called.  I will not hand it up unless your Honours would like to see it.  However, in her affidavit where she dealt with ‑ ‑ ‑

KIEFEL J:   What was her area of expertise?  Was she an economist or a town planner?

MR HUTLEY:   She was a town planner, I think, your Honour.  Her qualification is she is a senior town planner.  She was dealing with the question of the likely effect, and she said this – can I hand them up, your Honours, rather than read them to your Honours.

KIEFEL J:   Do the respondents have any objection?

MR HUTLEY:   Yes, I have given them to our learned friends.

MS ALLARS:   Yes, your Honour, we have seen it, but we do object to this matter being brought in at this stage of ‑ ‑ ‑

MR HUTLEY:   Well, my learned friend said that there was no evidence.  My learned friend in response to your Honour said there was no evidence ‑ ‑ ‑

CRENNAN J:   I think what was put was there was insufficient – this is what I understood the observation to be – insufficient evidence of direct or significant affectation.  It was accepted, as I understood the submission, that there was evidence in relation to a possible economic effect which was not particularly developed.  That is what I understood was being put.

KIEFEL J:   I thought it might have been mentioned by the Solicitor‑General that there was only evidence from the applicants themselves, which implied there was no expert evidence, if not expressly stated.

MR HUTLEY:   Yes.  It is a matter for your Honours, but the expert said this:

Secondly, the surrounding local centres –

that is my client, provide various services that applied at this proposed one –

If, as suggested by Location IQ, these services are also to be provided as part of the Giralang centre but that it will be attracting residents from areas who have access to other centres for these services ‑ ‑ ‑

MR GARRISSON:   Excuse me, your Honour, I am loath to interrupt my learned friend, but if he is going to put evidence to your Honours from the Bar table in relation to this matter, we would respectfully wish to further reply in relation to this particular affidavit and why we say it is not relevant to the matter that was before the Court of Appeal.

KIEFEL J:   Am I correct in my recollection that you asserted that there was no expert evidence?

MR GARRISSON:   No expert evidence about the impact on the applicants, your Honour.  With respect, this affidavit does not address the question of any direct impact on the applicants themselves.  It is tendered for the purposes of the planning application.

CRENNAN J:   We will not be assisted by going into evidence, Mr Hutley.

MR HUTLEY:   As your Honours please.  What we submit, your Honour, is our learned friends’ submissions were suffused with evaluative, in effect, metaphorical language which is said to have become the law.  That has no statutory basis ‑ ‑ ‑

CRENNAN J:   Well, Mr Hutley, there has to be some linguistic or semantic way of articulating the difference between an economic interest and the affectation of it which does not satisfy, in some respect, the test.  I think you have accepted that, and as against that, there can be affectation of an economic interest which indubitably satisfies the test.  There has to be a way of articulating the difference between the two, I would have thought.

MR HUTLEY:   There was accepted at first instance that there was an economic effect.  What was then said is that it was not one of the requisite variety, that is, it did not destroy the business.  In the Full Court, if one goes to paragraph 46 of the Full Court’s judgment, which your Honours will find at page 64, the Full Court said:

In the present appeal, there is no suggestion that the amenities . . . landscaping or traffic flow) of the shopping centres owned or controlled . . . will be affected by the proposed development.

It was said had that been in any way done, that would be sufficient.

CRENNAN J:   It is the next sentence, really, that is the nub of your application, is it not?

MR HUTLEY:   Consider the – raise no higher.  So, the Full Court appears to have gone on to consider, as one will see – and at 47 they say:

Finally, it was suggested by the corporate appellants that the proposition that economic impact is not a sufficient special interest

to give standing is qualified.  They argue that if an existing shopping facility is put “in jeopardy by some proposed development . . . 

This argument does not assist the corporate appellants for two reasons.  First, it is not clear why the relevant consideration referred to by Stephen J would necessarily confer standing on the owners of shopping facilities that are placed in jeopardy by a proposed development.

The Full Court went further than his Honour at first instance.  They are of the view that even if we had been put in jeopardy it would not be sufficient, because economic interests are not sufficient.  That is different to commercial interests.  Commercial interests could be interference with contracts and the like, but this Court seems to say – and repeatedly says – that pure economic effect which they accept has occurred is not sufficient.

They have created a hierarchy because, with respect, it is viewed as “too remote” and that seems to be a concept which has entered into this field associated with the idea that economic effects – that is, the process of competition – is of some lesser order than what might be called physical affectation, and we say that that is demonstrated by the authorities referred to, that is demonstrated by the approach that this is not a determination of fact because there is no analysis of the facts.

The point we draw attention to is one goes through here and finds no analysis of the facts.  The highest one gets is an assumption that there is an economic effect, and that is said not sufficient.  There is no attempt to assess the quantum, the degree or the like.  For those reasons, your Honours, we submit, it is quite clear that there has been introduced into this form of legislation a wholly alien concept hiding under the concepts of “remoteness”, and “directness and indirectness”. 

We agree that there must be a substantial effect, but that demands an immediate concentration on the detail of the evidence and the reality of the impact and nothing of that occurs because the court took the view it was not necessary because of the character of the attack – effect which we were alleging.  We say that is apparent from the reasons.  Unless I can be of further assistance.

CRENNAN J:   Thank you, Mr Hutley.  There will be a grant of special leave in this matter.  What is your estimate, Mr Hutley?  It is a short point, is it not?

MR HUTLEY:   It is a short point, your Honour.  I mean it, it would probably be less than a day ‑ ‑ ‑

CRENNAN J:   Half a day?

MR HUTLEY:   Half a day, with full written submissions?

CRENNAN J:   Yes, do you agree with that.

MR GARRISSON:   I have to agree with that, your Honour.

CRENNAN J:   Yes.  Ms Allars?

MS ALLARS:   I agree as well.

CRENNAN J:   Yes, there will be a grant of special leave and counsel are reminded about the time limits in relation to preparation.  Thank you.

AT 10.34 AM THE MATTER WAS CONCLUDED