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

[2014] HCATrans 224

[2014] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C3 of 2014

B e t w e e n -

ARGOS PTY LTD ACN 008 524 418

First Appellant

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

Second Appellant

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

Third Appellant

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

FRENCH CJ
HAYNE J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 10 OCTOBER 2014, AT 10.01 AM

Copyright in the High Court of Australia

____________________

MR N.C. HUTLEY, SC:   If the Court pleases, I appear with my learned friend, MR C.L. LENEHAN, for the appellants.  (instructed by Bradley Allen Love Lawyers)

MR P.J.F. GARRISSON, SC, Solicitor‑General for the Australian Capital Territory:   If the Court please, I appear with my 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)

FRENCH CJ:   Yes, Mr Hutley.

MR HUTLEY:   Your Honours have our three‑page summary.  Would your Honours like to take a moment to read it?

FRENCH CJ:   Thank you.  Yes, thanks, Mr Hutley.

MR HUTLEY: Thank you, your Honour. As your Honours know, this appeal arises out of approval by the Minister of a development application on 17 August 2011 under section 162 of the Planning and Development Act 2007 (ACT), which I will refer to as the Planning Act. The development application was identified in the judgment at trial of Justice Burns at appeal book 2, page 601, paragraph 3 and by the Court of Appeal at appeal book 2, page 648, paragraph 4.

In essence, the approval was for the construction of a supermarket and speciality stores at Giralang in Canberra.  The decision was challenged under the Administrative Decisions (Judicial Review) Act 1989 - we will refer to it as the AD(JR) Act if we might. The grounds of challenge were summarised by the Court of Appeal at appeal book 649 to 650, paragraph 5.

At the hearing the respondents raised a preliminary issue as to what was referred to by the trial judge a question of “standing” – that is appeal book 2, 602, paragraph 6.  The trial judge refused the application for review on the basis of that lack of standing at appeal book 2, 629, paragraph 86.  He also indicated he would have dismissed the appeal on the merits and that is at appeal book 2, pages 620 to 629. 

A notice of appeal was filed which is at appeal book 2, 635.  The grounds numbered 4.4, 4.5 and 4.7 were not pursued in the Court of Appeal.  The Court of Appeal dismissed the appeal on the basis that it upheld the finding of the trial judge as to standing.  That is at appeal book 2, page 667, paragraph 60.

Now, your Honour, as the appeal turns on the two constructions, in our respectful submission, of the AD(JR) Act, can I take your Honours to that?  The Act in the form in which it was at the time of the relevant application - it has since been amended in ways which, of course, need not concern your Honours - can I take your Honours to section 5(1):

An eligible person ‑

aggrieved by a decision to which this Act applies -

may apply to the Supreme Court for an order of review in relation to a decision to which this act applies on 1 or more of the following grounds -

There are then listed a wide variety of grounds of challenge.  Would your Honours note such grounds as (d) -

that the decision was not authorised by the enactment ‑

and (e) -

that the making of the decision was an improper exercise of the power given by the enactment under which it was purported to be made -

Content to (e) is afforded inclusively by subsection (2):

improper exercise of a power includes –

(a)taking an irrelevant consideration into account . . . 

(b)failing to take a relevant consideration –

and other grounds with which principles of administrative law we would make your Honours, of course, familiar.  But we would also note particularly (g) -

an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power -

Now, could I go back and deal with a few points by way of definition.  The provision “decision to which an Act applies” is a defined term, which your Honours will find in the dictionary, which is in the same print as your Honours have - page 30.  That extends to:

a decision of an administrative character made . . . under an enactment, other than a decision mentioned in schedule 1.

Schedule 1, your Honours will find, again, I think, at page 22, and it lists a series of acts which are not amenable to challenge under the Act.  Turning to the dictionary, the term “enactment” is defined as including:

an Act or subordinate law –

of the Australian Capital Territory.  Those features of the statutory design, of course, meant that there was brought within the review mechanism provided by the Act an extremely broad category of statutory decision‑making processes which, of course, was not closed.  Those processes, we submit, will also consequently be apt to affect an equally diverse collection of interests of persons and corporations affected by the administrative processes of the Australian Capital Territory.

FRENCH CJ:   Is there any material distinction, for the purposes of this appeal, between the definitions, the terms, the scheme of this Act and that of the Commonwealth Act?

MR HUTLEY:   We do not believe so, your Honour.  One short point I should make – the grounds of challenge point up that decisions purportedly made under enactments might miscarry in a plethora of manners to an extent where the people likely to be affected by it go well beyond what might have been contemplated within the particular legislation, the subject of the challenge.  Wednesbury unreasonableness ground which appears is, perhaps, the classic example of that, in other words, a decision which is so unreasonable that beyond the reasonable contemplation is apt to affect persons’ interests in ways that the legislation under which the decision was made would not have contemplated.

HAYNE J:   Why?  Why does the nature of the error as distinct from the decision enlarge the persons who may be affected?

MR HUTLEY:   Your Honour, we agree with your Honour completely.  We do not suggest it does.  There is a line of authority which we address which suggests that one finds in the Act under which the decision is made the scope of potential affectation and we point out that that is wrong, for a number of reasons, but particularly because the character of the basis of challenge obviously deals with miscarriages of statutory function which depart, to a great extent, from that which is contemplated by the legislature.

HAYNE J:   But is that line of authority in issue in this case?

MR HUTLEY:   Your Honour, the difficulty ‑ ‑ ‑

HAYNE J:   Directly in issue, I mean.

MR HUTLEY:   The difficulty is that some of the cases relied upon by the Full Court – the Court of Appeal – referred to a decision of Justice – one of them was Justice Lindgren’s decision and it seemed to have brought into the consideration in this field what I have just adverted to.  That seemed to have influenced, in some way, the Court of Appeal.

Can I then come to the critical statutory terms, that is, a person aggrieved by a decision?  We deal with the construction of that expression in our written submissions in‑chief at paragraphs 17 to 25 and there are four points we would like to emphasise, if we might. 

Firstly, there is a long history of use of that term in diverse statutory contexts and, as this Court has said in Health World Ltd v Shin‑Sun Australia Pty Ltd 240 CLR 590, the relevant statement in the judgment of the Court is at paragraph 21 where the majority said the meaning of that expression would depend upon examination of the subject matter, scope and statutory object of the particular statute in which it appeared. In that particular context the words were required to be “liberally construed” as appears from paragraph 30. Thus, we say, limited assistance can be obtained from other usages of these words in other statutory contexts.

Secondly, we say, it can be said at a level of generality that the selection of the phrase “as the criterion for standing” involved the selection of the broadest of technical terms as Justice Gummow said when on the Full Court in US Tobacco Co v The Minister for Consumer Affairs 20 FCR 520 at 527.

Thirdly, we say, it follows from that second proposition and also for the diverse range of decisions and interests to which the Act applies, that this area is not governed by rigid criteria or technical rules and there are many cases which support that proposition including the Australian Institute of Marine and Power Engineers v Secretary, Department of Transport 13 FCR 124 at 132 to 133 and Tooheys Limited v Minister for Business and Consumer Affairs.

Can I take your Honours to that decision shortly because it uses language which is later picked up and becomes the source of difficulties in this area, although the usage in the particular decision was wholly orthodox.  This is the decision of Justice Ellicott.  Can I take your Honours to page 437?

HAYNE J:   With a view to demonstrating what proposition of immediate relevance to the disposition of the appeal?

MR HUTLEY:   The proposition which appears to have influenced the Court of Appeal, that there is some significant distinction between what is described as direct and indirect harm and we submit that proposition has no proper place in a consideration of these questions.  The reference to that distinction seems to be sourced in this decision of Justice Ellicott and that is the only purpose to which we take your Honours to it.

At 437, his Honour, in the last paragraph - the second‑last paragraph identifies what the nature of the question is.  He then sets out his statements about what is involved.  Can I take it up at the sentence:

This does not mean that any member of the public can seek an order of review.  I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public.  In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights.  In some cases however the effect may be less direct.  It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties.

That distinction has entered, or appears to have entered, some of the rubric of decisions at appellate level as a matter which can be a basis for a refusal to find a person is aggrieved, and we say as a criterion of exclusion it does not assist.  Now, our third proposition ‑ ‑ ‑

KEANE J:   Does it assist as a test of whether or not someone can be said to have been adversely affected in their interests?

MR HUTLEY:   No, your Honour.  Can I ask – the question becomes immediately, how direct or indirect?

KEANE J:   Well, how adversely?

MR HUTLEY:   Adverse is a different question, in our respectful submission.  Let us take a decision such as approval of this variety.  In essence, no one other than perhaps a person who a decision to approve a development is directly aggrieved.  A lot of people are indirectly aggrieved.  They are indirectly aggrieved, for example, if they live next door and the approval leads to a construction of a supermarket and the supermarket attracts custom and that interferes with the convenience of their residence. 

The problem with this distinction between direct and indirect is that most administrative decisions, particularly those of a licensing character, a permission to act, have indirect effects rather than direct effects on people and, therefore, the criterion of directness and indirectness leads immediately to another inquiry, to what extent is it indirect?  Thus, we say, as a bald distinction it is not of assistance.

HAYNE J:   Is this any more than an observation that the question ultimately is one of mixed fact and law requiring judgment or assessment of sufficiency of connection?

MR HUTLEY:   Precisely, your Honour.

HAYNE J:   Then your complaint appears to be, as presently developed in argument, founded on choosing particular forms of expression which have been adopted in particular decisions and saying those are not complete or sufficient tests.

MR HUTLEY:   We say they are not tests at all, with respect, your Honour.

HAYNE J:   They are manners of expression of conclusion.

MR HUTLEY:   Precisely, your Honour.

HAYNE J:   Well, what more do we need to know as your proposition than that?

MR HUTLEY:   I shall move on.

HAYNE J:   Can I say this to you, Mr Hutley?  Your written submissions seemed to ultimately spend a deal of time fastening on particular expressions saying not this, not that, not the other.

MR HUTLEY:   The difficulty is that all of them found expression in the judgment and ‑ ‑ ‑

HAYNE J:   Be it so.

MR HUTLEY:   ‑ ‑ ‑ we have to convince your Honour of error.  If we have been overenthusiastic in our attack, your Honour, for that we apologise.  I will move forward, but that is the point ‑ ‑ ‑

FRENCH CJ:   What you need to persuade us of is that you win under a correct test.

MR HUTLEY:   I shall move forward.

GAGELER J:   Mr Hutley, there is an aspect of your argument that I do not quite follow at the moment.  You say in paragraph 4 of your outline that the definition, relevantly section 3B(1), is “inclusive, not exhaustive”.  But as I am following your argument, you seem to be focusing on the language of paragraph (a) of that subsection.

MR HUTLEY:   Of 3B, your Honour?

GAGELER J:   Section 3B(1)(a), yes:

a person whose interests are adversely affected by the decision –

Does your argument go beyond the conception that is captured in those words?

MR HUTLEY:   Your Honour, on the basis that interests, which I think is common ground, include economic interests, that is, how much money one is likely to earn, then we are content to deal with it solely within that term.  That is merely, in effect, a partial subset of the concept “person aggrieved” by a decision.

GAGELER J:   But you do not in this case rely on some wider notion?

MR HUTLEY:   No, we do not need to, because – again, I do not wish to trespass on your Honours – but the Court of Appeal gave to the concept of “economic interests which were sufficient to engage the section” a meaning which, with all due respect to them, is somewhat obscure, but seems to delimit it to something more than adverse effect on your trading position.  They seem to adopt a position that one has to have something akin to an effect upon, as it were, the comfort of your commercial environment, traffic, or the like.  That seems to have informed their decision.  We say one’s interest in one’s earnings is a sufficient interest, and is an interest which falls within 3B(1)(a).

KEANE J:   Is that actually fair to the Court of Appeal, in the sense that ‑ ‑ ‑

MR HUTLEY:   I try to be.

HAYNE J:   That is not what Mr Hutley is paid to be.

KEANE J:   ‑ ‑ ‑ in the sense that they do not simply speak about effects on economic interests.  They recognise there are economic interests and economic interests, and the particular economic interest with which they are concerned was your client’s exposure to competition and the consequences of that, and bearing in mind that your complaint about the ultimate effects of that depend upon competition, how it affects your clients and how your clients respond to it, the Court of Appeal then reached the view, you might say incorrectly, by applying an incorrect test of indirectness.  They just held that that was too indirect to be truly adversely affecting your interests.

MR HUTLEY:   Your Honour, in our respectful submission – can I take your Honours to the Court of Appeal’s reasons in this regard.  It is important – I had intended to do this later.  Could I take your Honour through the reasoning process, which starts at paragraph 31 – although one has to note 29(d) on page 656.

HAYNE J:   Is 29(d) more than a summary of what the parties referred to as “a number of general principles on standing”?  That is the chapeau of 29.

MR HUTLEY:   Quite, your Honour.  It does not matter - the court took it as that position and, in our respectful submission, it is wrong in law.  It says:

As a general rule, mere detriment to the economic interests of a business will not give rise to standing –

We submit there is no such general rule.  It all depends upon what the interest is and what the detriment is.  At 30 it says, such principles never go into consideration –

It was recognised by the primary judge at [51], with reference to the judgment of Pincus J in Australian Foreman Stevedores’ Association v Crone . . . that economic interests may provide a basis for standing under the ADJR Act provided that the interests of the applicants are so directly affected as to justify the right to challenge the impugned decision.

Now, we say that is the beginning of the problem.  It says ‑

The parties in the present appeal relied on numerous authorities –

and it refers to them, then it refers to Justice Pincus’ judgment –

considered the claim that the rival employer would gain trade at the expense of the applicant union . . . would be lessened.  His Honour found that this was too remote to give them standing –

Now, when your Honours go to the judgment what his Honour Justice Pincus found was that the likely affectation was minimal ‑ in point of fact, minimal, because the case concerned the acquisition of some boats which were outside the regime of employment of Australian employees and the judge came to the conclusion the affectation upon the union and the union’s employees would be minimal.

To a similar effect the decisions in Big Country Developments v Community Authority – I will have to take your Honours to Big Country.  That was a case of Justice Lindgren’s where his Honour was dealing with the effect of a decision with respect to pharmacies.  The case was conducted on the agreed position of the parties that the effect of the decision upon the applicant was that there would be significant financial harm, and we say that should have been the end of that decision – should have been the end of it, that should have been ‑ the case, in our respectful submission, is incorrect, is wrong.

Then it goes on to refer to Justice Lindgren’s – some statements in relation to the facts in Big Country and there is a reference to the “ripples of affection”.  It says:

The “ripples of affection”, in financial or commercial terms ‑ ‑ ‑

FRENCH CJ:   This is where you end up sitting in the pool, half submerged, I think.

MR HUTLEY:   When have you got a ripple and when have you got a small wave, and one comes down to construing metaphors and only your Honours can do that.  That is the difficulty.  This area has become suffused by them.  Then:

Lindgren J gave examples of potential detriment resulting from the decision to relocate the pharmacy which included possible detriment to the shopping centre –

et cetera –

I mention these matters only to suggest the impracticality of a notion that any financial interest adversely affected falls within s 3(4) of the AD(JR) Act.

Can I take your Honours shortly to that case to just make good the proposition that the case was conducted on an agreed position that there would be a significant financial effect.  Your Honours will see it at page 88 at about point three.  The hearing was conducted on the basis that even if Mr McLeod’s relocation causes “substantial financial harm” – that is the basis upon which the case was conducted and we say that should have been the end of it.

Therefore, one starts going back to the judgment under consideration.  One starts with the proposition that economic interest may find a basis, form a basis at 31.  One has then moved over into Big Country which was a case conducted on the basis that substantial financial interests would be harmed.  Now, the decision in Big Country is the beginning of the proposition that in a sense, the scope of the review under the AD(JR) Act is conditioned by the character and interests sought to be comprehended and considered relevant by way of challenge under the Act of the subject decision.

So, in other words, you condition the AD(JR) Act’s scope by the purpose and object of the decision of the Act under which the decision is made and we say that is wrong.  The AD(JR) Act stands outside and we adopt your Honour Justice Hayne’s observation at the beginning.  We say that is the correct and orthodox matter and the subject Act, whilst of interest and no doubt informing the context of the practical operation or likely practical operation of decision, and perhaps it may indicate the interests sought to be considered as relevant to the decision, which may assist one to establish standing, but it is not determinative.  It is not controlling and to approach it that way is apt to lead to error.

Can I then turn to paragraph 35?  Then there is reference to a decision of Jewel Food Stores and there it says:

Higgins J (as he then was) considered at 279 that the test for standing under that Act, namely that a person “may be affected by” the impugned decision, would be unlikely to be narrower than the “person aggrieved” –

Then he goes on:

[A]lthough the applicants have shown that the proposal could cause an economic impact upon them and that it is possible that that impact might be adverse, such an effect is not, in my view, sufficient to be a satisfactory basis for an application.  They have merely shown, as in Crone’s case, that their economic prospects have become less favourable.

Then there is a submission made and I can pass over that with respect to what was called the retail hierarchy, which is in effect a planning and development concept maintaining in the ACT, and if I drop down to 38:

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

So, in other words, we immediately have to identify something which is called a “special interest”.

To the extent that each of the corporate appellants argue that, by itself, the possible adverse financial impact of the proposed development on their business constitutes an interest sufficient in itself to give each of them standing, that argument is rejected in view of the principles referred to above. 

Thus, we have started at 31 by reference to Justice Pincus’ statement that economic interest may provide a basis and we are at the position now that adverse effect upon your economic interest alone is not sufficient.  There has to be something special.  We say this is simply not supported by anything in the legislation.  It is just wrong.

HAYNE J:   Does the Full Court in its reasons accept or reject – or, indeed, consider – whether there would be probably adverse financial effect.

MR HUTLEY:   They are prepared to accept – at trial, Justice Burns – and I will just get your Honours the precise passage – proceeded on the basis he was – paragraph 51, your Honour.

HAYNE J:   Page?

MR HUTLEY:   Page 618.

HAYNE J:   Thank you.

MR HUTLEY:   At 619, on the top, it says:

Assessments of the likely impact of the proposed development on current trading in the Evatt and Kaleen Local Centres, whilst undoubtedly relevant, do not tell the whole story.  The second –

et cetera.  Then, it is 49 in the Full Court.  I am sorry, 49 – I do apologise, your Honour: 

I am prepared to accept that the proposed development will have an adverse economic effect on the second and third plaintiffs.  The interest of the first plaintiff is one step removed from those of the second and third plaintiffs, but it is possible that its economic interests may come to be indirectly effected by the proposed development.

The first plaintiff was the Crown lessee.  It leased the property.  The lease was for a fixed rent.  I will give your Honours the reference.  It was a fixed‑rent lease.  So, to be adversely affected would require the lessee to fail.  So at first instance the court was prepared to proceed on the basis that we could be adversely affected and it might, might, lead to a failure.  But Justice Burns went on:

However, the evidence is not persuasive that either the second or third plaintiffs will be unable to trade if the proposed development proceeds.

That seemed to form the basis of his Honour’s determination of lack of standing that you, in effect, had to be killed to be an aggrieved person – wounding was not sufficient.  The Full Court – the Court of Appeal – seems to have ‑ ‑ ‑

KEANE J:   Well, if you read the last sentence on that page, it seems to be not so much wounding as just being required to try harder is not enough.

MR HUTLEY:   Your Honour, I will take your Honours to the evidence.  All the experts – and I am prepared to rest on those called for the respondents – proceeded on the basis there was likely to be an affectation on the trading of the two centres.  Mr Hack estimated it to be somewhere between 8 and 9 per cent of turnover, and Mr Duane was slightly less.

KEANE J:   That was after they considered possible responses by your clients to the new trading environment?

MR HUTLEY:   Quite.  That was their position.  That was, we say, the baseline.

HAYNE J:   That is a baseline about the centre, not about the individual trader?

MR HUTLEY:   Precisely.  I will come to that, your Honour.  If your Honour goes to the calculations, the trader is the supermarket.  Of these centres, the evidence is clear and that is what is proceeded on in the calculations, that they have a higher trading position.  They are the “enter” tenant.  They are the people who draw the trade.  Their return per square metre, or cash flow per square metre, is higher.  Taking the percentage is actually favourable because the key tenant was my clients.  They will receive at least that decrease in turnover.

We say that should have been the end of it.  It was common ground that there was going to be affectation around 8 or 9 per cent.  This is not de minimis and I will take your Honours in a little while to the evidence which shows that there were really three centres which were substantially affected by this.  That was what was called Kaleen Village, my clients; Evatt, my clients; and another centre called Kaleen Centre.  It had the highest affectation, then my clients were two out of the top four.  All the rest were minor.  All the other centres were around 1 per cent, as it were; what one might say is in the usual fluctuation of life.  We say if a business is told it is likely to lose its cash flow to the extent of 8 to 9 per cent that is a substantial affectation on its business; that is, they are aggrieved.

GAGELER J:   Mr Hutley, if we can strip away your criticisms of the Court of Appeal and just go to your positive case, is your positive case as simple as saying that a person whose interests are adversely affected by a decision is determined by just looking at the facts?

MR HUTLEY:   Yes.

GAGELER J:   You just say as a matter of fact the trading position of your clients was adversely affected by competition from this new development ‑ ‑ ‑

MR HUTLEY:   To an extent that you can properly say they are aggrieved.  I understand there is a de minimis element in there ‑ ‑ ‑

GAGELER J:   You say nothing about the scheme of the Planning Act, is that right?  You say that does not come into it?

MR HUTLEY:   Yes, we say it does not come into it.  The evidence, which I will take your Honours to, had to be led under the Planning Act, because the Planning Act – one of the criterions that had to be considered was the criterion of the substantial effect on other businesses.  We were within the purview of the consideration, as your Honour would expect in any planning environment. 

But we say that does not matter.  The planning environment assists one to see what the likely nature of the decision is.  We say the likely nature of the decision is one which will promote commercial activity in a space, commercial activity of a particular kind which will undermine the position of our clients as, in effect, economic night follows day, and it was common ground that it was substantial; what we call a substantial percentage.

FRENCH CJ:   So in the end, it being common ground that economic effects can give rise to a status of person aggrieved, are you doing more than inviting us to substitute a judgment on the facts for that of the Court of Appeal?

MR HUTLEY:   No, your Honour, because that is ‑ and I keep coming back to the judgment – the judgment turned on questions of law, in our respectful submission, because the point I got to is that in the Full Court when I was ‑ ‑ ‑

HAYNE J:   Well, can I interrupt you just before you develop that point, Mr Hutley, to see where we are in the argument?  I understand you to say that at trial, although it is expressed as “I am prepared to accept that” you say that the factual footing for the decision at trial is second and third plaintiff will have adverse economic effect, first plaintiff possibly may have.

MR HUTLEY:   Your Honour, I do not put it that it was an agreed position.

HAYNE J:   No, I am not suggesting agreed position.  I am suggesting that – I am asking you whether you assert that at trial the factual footing on which the trial judge proceeded was two and three plaintiff will have adverse economic effect.  One plaintiff possibly may.

MR HUTLEY:   That is what his Honour writes, and ‑ ‑ ‑

HAYNE J:   That is to say that his Honour proceeds on a factual footing that more is shown than these businesses are exposed to competitive pressures if the development goes ahead.  It goes beyond exposure to competitive pressure to the consequence of exposure, namely, loss.

MR HUTLEY:   Loss of trade.

HAYNE J:   Now, do I understand you to say that if that is the fact the law requires the conclusion, standing?

MR HUTLEY:   Your Honour, you have to still be able to say of the person that it is a person is aggrieved and that is an evaluative concept.  In other words, if we had established half a per cent the court may ‑ ‑ ‑

HAYNE J:   A de minimis – there may be a question of degree.

MR HUTLEY:   Quite, I accept there is a question of judgment and degree, but what we do say, your Honour, is where the percentages we take are that called by the respondents and we say at – and I will give your Honours the percentages when we come to them, between 7 and 10 per cent broadly speaking, and I will explain it to you in a moment – we say that is not de minimis, that is substantial. 

That, we say, is and was proceeded upon as part of the planning decision was likely to occur and that was then supported by evidence in the trial and no one led evidence to the contrary.  There was a dispute as to whether it would be higher and that was not resolved by the court, and we say that should have been the end of the “standing” question – or the “person aggrieved” question, I am slipping into that shortcut.

GAGELER J:   Well, the Court of Appeal at page 653 about line 32 characterised the primary judge’s finding as being one of:

increased competition provided by the development [that] would affect –

the profitability it seems of all of your clients.  Is that the way you put it as well?

MR HUTLEY:   Yes, that is it.  On the evidence, one could come to no other conclusion.  There was a dispute about floor space and how much it was - the Court of Appeal, nor the trial judge, ever resolved that.  The trial judge said, when he turned to the question of law, that it was a factual question and he did not need to decide it but he did not decide that detail on the standing question, on the “person aggrieved” question.  He made the observation he did and then the Court of Appeal seems to have accepted that observation and then gone on to explain why that was not enough and that was by reference to questions as to the interpretation as to what it was to be a person aggrieved.

If I could return to answering your Honour Justice Keane’s question, to going through the judgment, and I think I had got up to paragraph 38 where there is a reference to the identification of what is called a “special interest” and then it says at 39:

We turn then to each of the corporate appellant’s alleged interest in the maintenance of the commercial hierarchy.

This was the interest said to exist because they were owners of local centres in the framework of what was called the “Territory Plan” which had that hierarchy.  Now, that legislative environment is, with respect, very clearly set out and discussed in the judgment at first instance of Justice Burns from paragraph 7 onwards, and I do not propose to take your Honours to the legislation.  His Honour’s summary is wholly accurate and we accept it.  But to return to 39 -and then it refers to the position of Mr Petsas:

He submitted before the primary judge that if the Giralang development is approved, Kaleen IGA, operated by Cavo, the sublessee of Argos, will suffer significant loss of trade and could be forced to close –

and then it was Cavo, and then there is a reference to IGA Evatt and similar and then there is a reference in 42 to the relevant planning scheme:

requires the decision‑maker to consider –

et cetera.  Now, then at 44, he said:

On a slightly different basis, it is submitted that if existing shopping centres are placed in jeopardy by the proposed development as a result of either physical or financial causes which are not made good by the proposed development itself, such constitutes a relevant planning consideration . . . 

The interest claimed by the appellants in seeking the maintenance of the commercial hierarchy is analogous to that considered by Higgins CJ in Westfield Ltd -

and there is a discussion of that and then there is a statement by the Chief Justice at the bottom.  It says:

It is sufficient for me to observe that the effect claimed by Westfield on its interests did not rise beyond the economic.  Its interest in the integrity of the Territory Plan was no more or less than any other person in the Territory.  There is no suggestion that an alteration –

et cetera.  Then turning to 46:

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

There was not and we say that is neither here nor there. 

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. 

No higher.

Further, as was found by the primary judge, any claim to be interested in the maintenance –

et cetera.  So, in other words, the court is stating that because we raise no higher we fail.  That seems to be an acceptance of the need for what is called a “special interest” and a possible special interest seems to be an affectation of your parking or traffic or the like, and as we observe in our written submissions, to corporate organisations that is no more than interference with their economic interests.  So, in other words, there seems to be a harking back to some form of physical affectation that needs to take place -

The corporate appellants are merely concerned with addressing trade competition.

What we are concerned with is dealing with loss of income as Justice Burns found we were exposed to -

Finally, it was suggested . . . that the proposition that economic impact is not a sufficient special interest to give standing is qualified.

This is our alternate position -

They argue that if an existing shopping facility is put “in jeopardy by some proposed development –

This was harking back to Justice Burns’ position that you had to be put in jeopardy to – that is a failure to have the relevant interest –

be due to physical or financial causes, and if the resultant community detriment will not be made good . . . such circumstance is a relevant planning consideration –

This is a reference to Justice Stephen which is in a different concept about planning, but 49 says:

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. 

Accordingly, we consider that the decision of the primary judge was correct –

Now, in our respectful submission, a fair reading of the judgment, to finally answer your Honour Justice Keane’s question, is that the court conceived that mere financial detriment, economic detriment, is not sufficient, and we say that is simply wrong.  It is a gloss on the Act.  It is inconsistent with statements and it seems to have arisen from concerns that competitors who are suffering economic harm should not be allowed to complain, merely that.  They have to go some ‑ ‑ ‑

KEANE J:   Or to put it another way, no one has an interest in being protected from competition per se.

MR HUTLEY:   Your Honour, we have an interest in a decision being made which is beyond the law which takes away our earnings.  Now, where one has standing to challenge, that must assume that one looks to the possibility of success.  If there be success, it would be success because the decision which is exposing us to the competition that your Honour referred to is made due to an error of law.  We say that is not to, in effect ‑ ‑ ‑

KEANE J:   So that is not competition per se, that is unlawful competition.

MR HUTLEY:   Well, yes.  Your Honour, all we say is, with respect, to encapsulate as no one has an interest to not be exposed to competition, in our respectful submission, or leaps the fundamental character of the AD(JR) Act which is giving broad standing to aggrieved persons to ensure that conduct of the administration is lawful.  Of course, if a decision is proper and we are exposed to competition, so be it, but if it is not, it cannot be a ground to refuse standing or gloss the Act by referring to it as just merely seeking protection from competition.

GAGELER J:   Mr Hutley, if it is relevant in applying the terminology of the AD(JR) Act to a particular decision made under a particular enactment to take into account the subject matter, scope and purposes of that particular enactment, it would be necessary in the circumstances for the present case in determining whether interests were relevantly adversely affected, to have regard to the subject matter, scope and purposes of the Planning Act.

MR HUTLEY:   We would, and in that regard, your Honour, can I take your Honour to paragraph 29 in the judgment of Justice Burns at page 609 in the second volume.  Again, I will not take your Honours through the full legislative context, but this is the end point:

The proposed development is subject to the Local Centres Development Code (the LCDC) found within the Territory Plan.  The controls on development provided by the LCDC are expressed either as Rules, which are generally ‑ ‑ ‑

et cetera.  Then one of the relevant considerations, consideration of impacts, is –

A proposal to carry out development in a local centre must have regard to any significant adverse economic impact on other commercially viable local centres.

So, in other words, we are a kind of relevant consideration.  We are next door.  I will tell your Honour exactly where we are; we are a couple of kilometres down the road.

GAGELER J:   Well, that was really my question; do you have a fall‑back position from your primary argument, and where do I find that in your submissions?

MR HUTLEY:   I am told that is at 49, your Honour, on page 13.  We say if that is required, and we say it is not, we are ‑ ‑ ‑

GAGELER J:   Paragraph 49?  Yes, all right; right in the middle.

MR HUTLEY:   Yes:

As appears from the text and structure of the Act, that was an element of . . . 

Moreover, the terms of that scheme required that commercial interests to be taken into account.

Does your Honour see that?

GAGELER J:   I see that now, yes.

MR HUTLEY:   I am sorry, your Honour.  We get 20 pages, your Honour.  I do not want to put things in bulk.

FRENCH CJ:   Does it make any difference to your position if the profitability threatened by the decision were a profitability protected by a natural monopoly because of the absence of competition in the region?

MR HUTLEY:   Quite.  I was going to take your Honours through the evidence in a little while and there was evidence that, in effect, our trading was likely to be elevated because Giralang was, in effect, a dead area.  We would say fair enough, that is true.  That means we are really likely to be affected by the decision.  If it is to happen, it is to happen.

FRENCH CJ:   It does not matter to your argument whether the effect on your profitability is a good thing or a bad thing in public policy terms.

MR HUTLEY:   Not at all.  In effect, what we submit is this Act is – that is, the AD(JR) Act – is policy neutral and there are strains in some of the cases suggesting that one has to, in effect, economic interest or a lower order and we say that simply is an unwarranted gloss on this Act.  The history of these words “persons aggrieved” and “interest likely” show that they are of the broadest impact, broadest import.  Anything which constrains it by reference to some assumed policy or hierarchy of what is good or bad in the public interest in the particular case is a matter, in our respectful submission, not within the purview of this legislation, not called for and not able to be considered.

It is a matter for the judicial body considering it to evaluate whether the nexus between the claimed affectation, adverse affectation, or concern and the decision is such that one can say of the person their interests are adversely affected or they are a person aggrieved, and I accept that that is evaluative.  There will be questions of fact and degree at that point, but you come to it directly, if I can use the word which I have said one should not use.  You take the case mounted by my client, look at the evidence.

On that evidence does this decision adversely affect my client’s interests or such that my client can be said to be a person aggrieved because adversely affected must also have some element beyond the de minimis and there are suggestions in some of the cases that you cannot be affected as every other human being in the community is, whatever that precisely means.  So there is an evaluative element and we accept that.  If I could take your Honours to the evidence now ‑ ‑ ‑

HAYNE J:   Well, before you do, I think it then seems to come to a suite of five propositions, Mr Hutley:  one, demonstration of probable adverse commercial or economic effect more than an insubstantial or de minimis effect is sufficient to demonstrate that you are a person aggrieved.

MR HUTLEY:   Yes.  Could I make one caveat on that, your Honour?

HAYNE J:   Yes, go on.

MR HUTLEY:   One is dealing prospectively so one cannot necessarily, as this Court has said in relation to valuation cases, necessarily when one is dealing with that, get beyond the balance of probabilities.  In effect, one has got to have a real sensible establishment.  When your Honour said “probably” I just would not want to necessarily put it that high.  It is sufficient in this case because there was common ground.

HAYNE J:   Two, do not treat statements in decided cases used as explanation of the conclusions reached in those cases as themselves amounting to statements of principle glossing the Act.  You have developed that at some length in your written submissions.

MR HUTLEY:   I will not say another word, I promise, your Honour.

HAYNE J:   Three, demonstration of exposure to new and/or different competitive pressure standing alone may not, perhaps will not, suffice.  You have to demonstrate probable ‑ subject to what you say about probable – probable economic effect.  Four, taking up a point made by the second and third respondents, I would not understand you to controvert that simply saying “I believe that there will be a commercial impact on me” is not enough.

MR HUTLEY:   I accept that.

HAYNE J:   See second and third respondent at paragraph 28 and thereabouts.  Then, five, you say the Court of Appeal erred because, contrary to proposition two, it did treat statements as glosses and ignored proposition one.

MR HUTLEY:   Yes, your Honour.  Can I now take you ‑ ‑ ‑

HAYNE J:   Well, what are we going to get further by diving into the facts?

MR HUTLEY:   Your Honour, I just want to ‑ ‑ ‑

HAYNE J:   A lot of colour, movement and light.

FRENCH CJ:   And smoke.

GAGELER J:   Do we see in the 20 pages you have given us what you want us to get out of the evidence?

MR HUTLEY:   Yes, your Honour.  I was going to - and I am now deciding that this was an insane decision on my part - I was going to take your Honours shortly through Mr Duane’s report which explains the methodology which was common to both parties by which you establish these matters of loss and show our propinquity with actually these centres, but, your Honours, it is really set out in paragraph 10 of our submissions.  Mr Duane’s economic impact statement, which is helpful in explaining the facts, and I will just direct your Honours’ attentions to some of the paragraphs and then I will be off.

GAGELER J:   Are we to take what is in paragraph 10 as uncontroversial evidence.

MR HUTLEY:   Your Honour, paragraph 10, to the extent that it refers to Mr Hack and Mr Duane, I take to be uncontroversial since it was tendered by our learned friends and we are prepared to deal with them again.  It being 11 o’clock, if I can take your Honours shortly to this material because I think it would assist your Honours to see just exactly what we are dealing with in point of detail.

Firstly, your Honours, if your Honours go to 543, towards the beginning of the second volume, there is a map and in that map you will see the Giralang site identified.  There is then to the right and below it, in what is called “Secondary East” there is a site called Kaleen East.  That is not my client’s.  My client’s is called Kaleen Village, below it.  Then if one goes to the left and up you will see the Evatt centre and it is very close to what was called the “Secondary West” zone.  This is, in effect, how one determines the impact of these things.

Mr Duane then goes through an analysis of the likely impact of setting up this site upon surrounding commercial sites and you will see through it - I will not take your Honours to it - see through it consideration of the supermarkets being the anchor tenants and such like.  They are, in effect, the drivers of it.  You will also see, if one goes to 554, a table showing the competitive environment and if you go down to the local centres, Kaleen village is 2.5 kilometres away from Giralang and Evatt is 3.2 kilometres away from Giralang.  That just shows how close they are.

Can I jump over?  There is then a detailed consideration of the likely impact of this centre upon the surrounding environment and that all leads to a summary at table 4.3, which your Honours will find at 569.  If your Honours go to “Local Centres” your Honours will see “Kaleen Village” a negative 8.5 per cent upon its trading, that is, the money spent at the village, and Evatt minus 7.5 per cent.  Above your Honours will see “Kaleen Plaza” 12 per cent and your Honours will see below, “McKellar” 8.3 per cent.

So, in other words, there are four centres with significant affectation.  The others might be described as, in effect, de minimis, might.  I do not need to stay to debate that.  But that was the evidence, in effect, tendered by the second and third respondents.  They, in effect, led further evidence from a Mr Hack who said that understated the position slightly.  Mr Hack’s evidence your Honours will find relevantly at 237 in volume 1.

GAGELER J:   You have summarised this I think in paragraph 10(b).

MR HUTLEY:   Yes, and that is the material.  We say there was dispute with the other experts on our part that that was insufficient.  That was never resolved.  I do not seek for this Court to resolve it.  We do not need it to be resolved.  That was, as it were, the grundnorm.  That was where we departed from and, your Honour, that, in our respectful submission, ought be the end of it.  That is our case.

We say that was the approach – if I can refer to one last case and then I will go away – not least because it is by one of your Honours’ colleagues, Justice Kiefel.  In H A Bachrach v Minister for Housing 85 LGERA 134 her Honour dealt – and could I deal with that shortly - admittedly on a summary basis was dealing with the situation to deal with a proposed change to a strategic plan in Caboolture – it seems to be the source of more litigation than any other part of this country – and the owner

of a shopping centre was complaining about this because they were contending that if it was put in place they could be adversely affected because it would allow approval of competing centres which could affect their business. 

There was a summary application for the dismissal of it and her Honour turned to the question – which was under the Queensland legislation which was not materially different to the legislation with which your Honours are concerned – her Honour turned to the question of standing at page 137 and, in our respectful submission, her Honour’s analysis is wholly correct and, in our respectful submission, that was the proper approach.  In fact, our case is an a fortiori case because there it was a change to a planning instrument, not an actual approval of a development.  Those are our submissions.

FRENCH CJ:   Thank you, Mr Hutley.  Yes, Mr Solicitor.

MR GARRISSON:   If it please the Court, may I ask that the second and third respondents address before me?

FRENCH CJ:   Yes, very well.  Yes, Ms Allars.

MS ALLARS:   If the Court pleases.  The issues in the appeal are stated in paragraph 2 of the second and third respondents’ submissions.  Issue 1 is the “general rule” question, as the appellants have put it.  That is a question of construction of the Court of Appeal’s judgment.  The second issue concerning remoteness is a question of construction of section 3B(1)(a) of the ACT AD(JR) Act against the backdrop, as we argue, of the common law test for standing to seek an injunction or declaration. 

In our respectful submission, it is not necessary for the Court to determine what we describe as issue 3 concerning matching a claimed interest against the objects of the Act under which the relevant decision is made, although that is something that arises in a peripheral manner and I will come to that.

If the Court is satisfied that the Court of Appeal did not err, that is, if the construction argument is resolved in favour of the respondents, and if the Court accepts that the label “remoteness” is a harmless application of a conclusion, an adjective which describes the outcome of the application of the test, then the Court, in our respectful submission, would not proceed to issue 4, which is an invitation by the appellants for this Court to reassess for itself the mixed question of fact and law already determined by the primary judge as to whether, on the evidence, the appellants had standing. 

We seek to focus on issues 1 and 2, but of course, necessarily, will respond to the material that has been put orally in relation to question 4.  If I can go to that first issue, the “general rule” argument, in our submission, nowhere in the Court of Appeal’s judgment does one find a statement that there is a general rule that affectation of economic interests cannot suffice to establish that a person has standing under the ACT AD(JR) Act. 

In the written submissions, the appellants pin their construction upon three words which we say are taken out of context, in paragraph 29(d) of the court’s judgment.  These are the words “As a general rule,”.  As your Honours will see in our summary outline of our oral submissions, read in their context, those words mean “usually”, not “there is a general rule that”.  They occur in the context of the description of the submissions that have been made by the parties.

We say that, properly read and fairly read, there are three parts to the court’s judgment addressing the three arguments as to standing that were put to the court.  The first part is found in paragraphs 31 to 38; the second in paragraphs 39 to 43, skipping over paragraph 44, and then proceeding in paragraphs 45 to 46; and the third part is in paragraph 44 and then 47 to 49.

It is the first argument that was the primary one, and that was the argument that the appellants had a sufficient economic interest.  If I just go to that first part, your Honours will see that it really reflects the ratio of the court’s judgment.  The specific paragraphs which in combination form the ratio are paragraph 20, where his Honour Justice Gageler noted the court explained its understanding as to what was the finding made by the primary judge; secondly, paragraph 31, then paragraph 38, paragraph 50, which is the overall conclusion with respect to each of the three arguments and, of course, the final conclusion of the court in paragraph 60 upholding the conclusion reached by his Honour Justice Burns.

In paragraph 31, the court agrees with the finding reached by Justice Burns at paragraph 51 of his Honour’s judgment, and if one goes to paragraph 51 of Justice Burns’ judgment, one sees, on page 618, that his Honour says:

Economic interests may provide the basis for standing under s 5 of the ACT ADJR Act –

That cannot reflect the error which the appellants claim appears in the judgment.  It is an acceptance that economic interest may suffice.  The real question, Justice Burns goes on to say, is whether the economic interests “are so directly affected”.  Now, direct/indirect, sufficient/insufficient, remote/not remote are just different labels, we say, that are applied once the court has engaged in the exercise of applying the test, an exercise that requires judgments of degree.

GAGELER J:   Mr Hutley probably says it is just a matter of big or small.

MS ALLARS:   Big or small is fine as well.  In fact, at the end of the day, I think Mr Hutley accepts that there are judgments of degree to be made.  But in reply, somehow it is said attaching the label at the end of the day spills over and renders the test in some way different.  We say that does not happen; it is just a matter of ordinary English expression, a way of saying this is the factual conclusion that we have reached and, therefore, interests are not established.  Maybe there is only a belief or concern, or the interest is not adversely affected, “adverse” itself involving a spectrum of effects ‑ ‑ ‑

GAGELER J:   But the evidence does seem to establish that there will be, or is projected to be, reliably, an eight to 10 per cent decrease in the trading turnover of Mr Hutley’s clients.  How do you say that is not big?

MS ALLARS:   I will come to that, your Honour, when I get to issue 4.  We say that that is within the normal range of effects of trading and competition, and that is made good by Mr Duane’s affidavit – his first report, and then his affidavit in the proceedings – and that the evidence of the other experts did not effectively make any inroads on that proposition.  Also, it needs to be properly understood that that was evidence about turnover of centres.  It was not evidence about profitability of supermarkets within centres, so those are different propositions.

BELL J:   Whilst we are on the paragraph 51 of the primary judge’s reasons, does one read that paragraph by reference to his Honour’s apparent acceptance of the observations of Justice Higgins, as his Honour then was, in Jewel Food at appeal book 613, paragraph 38, where it is said that:

neither the applicants nor their customers had any legitimate expectation that competition would be restricted so as to protect their economic interests.

In light of that observation, one way of understanding what his Honour is saying at paragraph 51 is to recognise that economic interests may provide a basis for standing but perhaps not to accept that where the economic interest is an interest that is no more than “trade competition” only, to use the words of the Full Court at paragraph 49, that is, not an interest of a kind that grounds standing.

MS ALLARS:   I accept what your Honour says, that economic prospects becoming less favourable is not sufficient.  It may, indeed, not even be an interest because when one speaks of prospects it may be one is speaking of beliefs about trading in the future rather than an interest, which is something different from a belief.  But I think the argument about a mere interest in being shielded from competition is an argument that is met most easily by what I had said is issue 3, which was not actually directly an issue for the Court, that is that the planning legislation has objects which have nothing to do with protection of any entity from trade competition.

So there is a mismatch between any interest in being shielded from such competition and the relevant subject matter of the litigation, which is a decision made under an Act which has very different objects, and although some reliance has been placed on criterion C33 in the Local Centres Development Code, there is an easy answer to that which was given by the Court of Appeal and that is really what is issue 3 which peripherally raises this question.

FRENCH CJ:   There is a risk, is there not, of mixing up the question of what adverse effects on what interests attributable to the impugned decision are sufficient to grounds standing on the one point, and normative judgments about the benefits of competition on another.  After all, if one starts talking about competition, competition is a brutal process.  The effects of competition can include the destruction of businesses, but to say you are not shielded ‑ that society or the law does not shield you from competitive effects, does not answer the question of standing, does it?

MS ALLARS:   It does not answer the primary and substantive issue which was the first part of the court’s judgment, which is the question of degree because, as was accepted by the primary judge, there was some impact on economic interests and it was accepted there was some interest there.  So I think that finding was made, putting aside an interest in not being exposed to competition.  There would be some loss of turnover for these two local centres, whether it was 7.5 or 8.5 per cent.  So that is a slightly different inquiry from the inquiry about whether the interests match the objects of the Act under which the decision is made.

FRENCH CJ:   I mean, his Honour observes consumers will often individually and as a class be advantaged by increased competition.  The question is “so what”.

MS ALLARS:   Yes.

HAYNE J:   Do you accept that loss of turnover equals loss of profit?

MS ALLARS:   No, I do not, your Honour, because the turnover of a centre is affected by a range of variables.  There are other entities trading within a centre apart from the supermarket.  The experts agreed that the variables can include trading programs and methods, you know, hours of opening, whether there are other attractive venues in the centre which would bring customers into that area, so there is a whole range of variables which affect the profitability of a supermarket which is a separate issue from turnover of a centre.

GAGELER J:   Ms Allars, perhaps I am not quite following your argument, but are you saying that really we are to read what the Court of Appeal and the primary judge said about economic impact as referring to a minimal or a small economic impact rather than really saying, as I must say I had initially understood them to say, that economic impact itself is not sufficient to give standing in this case?

MS ALLARS:   Your Honour, the court accepted that economic impact can suffice, but this was not a ‑ ‑ ‑

GAGELER J:   In a planning case.

MS ALLARS:   In a case like this it could suffice but not in this particular case because, looking at the evidence ‑ as Justice Burns did do without having to set it out in great detail in his judgment ‑ looking at the evidence and really giving the benefit of the doubt and accepting that there was some impact, it was not enough.  If one looked at the further ends of the spectrum of a more major impact one might be looking at evidence of a forced closure of a supermarket, but Justice Burns was not satisfied that the evidence went that far.

GAGELER J:   So a large impact on trading you would accept would be sufficient to meet the AD(JR) Act criterion for standing?

MS ALLARS:   It may be in a different case there would be a number of other factors to look at as well, and this is the difficulty, that every case turns on its own particular facts and circumstances.  When I come to take your Honours to the evidence, purely to the extent that it is necessary to respond to my learned friend, one will see that even a 10 per cent reduction in turnover for a centre is well within the normal range.  That needs to be put into a context where one knows how the centre is trading.  If it is trading at the margins, then that may be significant, slightly significant.  If it is trading well below the margins, not doing very well, then 10 per cent might take it under, say it was trading 50 per cent below normal expectations.  There was no evidence about any of those matters in the case of Kaleen and Evatt local centres.

HAYNE J:   Why would that matter to hypothesise or, indeed, establish that there is something which is worthy of the classification “normal trading” out there?  Why would an applicant seeking to establish standing have to do more than say, this is going to cost me money?

MS ALLARS:   Well, a 10 per cent loss of profitability of the centre, supposing that does equate to a 10 per cent loss of profitability of the supermarket within it, was in the primary judge’s assessment a minimal or not significant or not sufficiently significant economic impact to meet the test.  One can understand why that was so given the evidence before ‑ ‑ ‑

HAYNE J:   I think 10 per cent variation in earnings is commonly seen as not insignificant.

MS ALLARS:   That is normal.  Well, it is seen by the ‑ ‑ ‑

HAYNE J:   These are not ASX‑listed entities but 10 per cent – yes, go on.

MS ALLARS:   Well, in terms of the retail analysis that was provided to the court, a 10 per cent change was within normal bounds.

HAYNE J:   I do not understand what that means, Ms Allars, and you will explain it to me presently, I understand.

MS ALLARS:   Probably only the retail economists understand it, but within normal variations for that kind of business, 10 per cent up or down was not something significant.

KEANE J:   But you are not suggesting that 10 per cent up or down is not attributable to the new centre?

MS ALLARS:   Well, it was actually 7.5 and 8.5 was accepted by Mr Duane to be a possible impact.

KEANE J:   The impact of the decision.

MS ALLARS:   Yes.

KEANE J:   So that is not just general things that happen in the marketplace.

MS ALLARS:   No, it was ‑ ‑ ‑

KEANE J:   That is actually attributable to this decision.

MS ALLARS:   I think that is being fair, that was the basis of Mr Duane’s analysis, yes.

KEANE J:   And has that not been accepted by the Court of Appeal at paragraph 22, where they refer to the primary judge’s conclusion:

that the increased competition . . . would affect their profitability –

that is, the two traders?

MS ALLARS:   Yes.

KEANE J:   So are we right to proceed on the footing that there is a factual basis from which everything else proceeds that the effect on competition is on the probabilities likely to affect profitability?

MS ALLARS:   Yes.

BELL J:   And then when one turns to paragraph 49, one sees that the interest being one respecting “trade competition only” is the determinant of why standing has not been established.  This is nothing to do with whether the effect on profitability is at the margins and, therefore, not a sufficient interest.  It is a view that a competitive effect on profitability, even one might think more significant than 8.5 per cent is not relevant to establish standing.

MS ALLARS:   Not sufficient.  I accept that, your Honour, that is the way in which I think that should be read, that there was some degree of interchangeability between the concepts of trade competition and some impact on profitability.

BELL J:   Yes.  So it is not a question of the extent of it, it is really, as I would understand it, an acceptance of the approach in Jewel Food that impacts of that kind on trade competition are not matters that give rise to a sufficient interest for the purpose of the test?

MS ALLARS:   That is so, your Honour.  The court was looking for something more than that level of impact, and fairly read, in the passages to which my learned friend has taken the Court, the court is searching for something which could be a greater economic impact, did not have to be a non‑economic impact such as impact on amenity, but just something more than that level of impact on profitability as a result of trade competition and the court was unable to find it.

GAGELER J:   Why is the court searching for that?  Because of the generic language of section 3B(1)(a) or is it searching for that because of some particular effect of the planning legislation?

MS ALLARS:   Because of the language of 3B(1)(a), the judgment of degree that needed to be made, the court was really second guessing the judgment that had been made by the primary judge, was this sufficient, and found that it reached the same conclusion that the level of adverse impact really was not far enough along the spectrum to be sufficient.

GAGELER J:   Ms Allars, you have done a lot of Customs cases over the years, this sort of parsing of economic impact just does not enter into any of the analysis of standing to challenge an anti‑dumping decision or a Customs tariff decision in practice, does it?

MS ALLARS:   I am not familiar with any cases that might illustrate that proposition.  It may be the standing point is not taken in some of those cases, but certainly reliance has been placed on another context of the Trade Marks Act where there is a straightforward person aggrieved test without any definition, as we have in 3B(1)(a), of interests adversely affected, and that is the Health World Case.

We say that reliance is misplaced because the Trade Marks Act, section 20, gives an exclusive right to use of the trademark, and so standing as a person aggrieved to seek to rectify the trademark register is interpreted in the context of that Act in a more liberal fashion, that is, a rival whose business will be affected by loss of the ability to use the trademark will have standing because the exclusive right of the registered trademark holder prevents entirely others from use of the trademark.  So it stands in very stark contrast to the grant of development consent which allows the Crown lessee of the site to develop that site; that has no impact on that ability of the appellants to develop their sites or to trade of itself.

FRENCH CJ:   Is it right to characterise the Court of Appeal’s reasoning at its core as involving the proposition that because the economic effect of the decision in terms of reduced trade turnover flowing through to the supermarket, and profitability possibly, is attributable to an increase in trade competition?  That for that reason the adverse effect on interest is not sufficient to attract standing, or to answer ‑ ‑ ‑

MS ALLARS:   I do not believe ‑ ‑ ‑

FRENCH CJ:   It does seem to dominate what they say at 49 and then earlier on I think at 46:

The corporate appellants are merely concerned with addressing trade competition.

MS ALLARS:   I do not believe so, your Honour.  I think that was another aspect of the factual circumstances that the court was taking into account.

FRENCH CJ:   My concern is that they allowed their assessment or application of a statutory test to be infected by a normative view about competition.

MS ALLARS:   I think that is not the case, your Honour, because just going back to that structure of their reasoning, they deal with the first argument in 31 to 38 and the conclusion when one gets to the top of page 660 is that the interest was not sufficient.  Then from paragraph 39 they deal with a different argument based on the commercial hierarchy which is said to be discernable in the planning legislation.  In dealing with that, the court concludes that it all boils down really to the same position as in the first argument, that there is just this fairly minimal economic impact and there is a belief about it.  There is not that something extra. 

Then the third part of the – sorry, just to complete that, paragraph 46 on which my learned friend relied to some extent, is the critical one.  What is being said there is that there is not that something extra.  It could be a greater economic impact or it could be some other impact such as an impact on amenity.  It does conclude with that reference to trade competition, as your Honour the presiding judge has noted, but as her Honour Justice Bell has said, it is the trade competition which has caused or is said to cause the loss of profitability, so really there is an interchangeability between those two ideas I think in the way the court has expressed the impact.

The third part of the reasoning is found in paragraph 44 and then in 47 to 49 and that third argument was based on the idea that C33 in the LCDC which requires a proponent to deal with commercial impact on other viable local centres ‑ ‑ ‑

FRENCH CJ:   C33 feeds into the hierarchy of centres, does it not?

MS ALLARS:   It may be relevant to that, yes.  It certainly is consistent ‑ ‑ ‑

FRENCH CJ:   Through rule 5.5, I think.

MS ALLARS:   Yes, the hierarchy is mentioned at the beginning of LCDC and then you get to this particular C33.  So this is really an argument by the appellants that if a proponent has to address the commercial impact in the application for development consent, then the commercial impact must be a relevant consideration for the Minister in the Peko‑Wallsend sense.

We accept that but we do not accept the next step.  The next step that the appellants seek to take is that that means that anybody who is concerned that the Minister has not taken into account commercial impact has standing to bring proceedings under the AD(JR) Act to argue that point and it is a confusion between the test of standing and the Peko‑Wallsend idea as to whether something is a relevant consideration.  Just because it is a relevant consideration, it does not follow that anybody can bring proceedings to have an argument about it.  So that argument has ‑ ‑ ‑

GAGELER J:   It has no bearing on whether a particular interest is remote, for the purposes of standing?

MS ALLARS:   It is of peripheral relevance, we accept, to what is the third issue that we say this Court does not need to determine, that is the issue about a mismatch between an interest and the objects of the Act.  We accept that commercial impact, as it is described in C33 is a Peko‑Wallsend relevant consideration but that does not affect the fact that the main and principal objects of the Act and of the Territory Plan are concerned with planning and amenity, not with the impact of development on the commercial interests of other people.  Despite those objects, we accept that this, given C33, is one relevant consideration in the mix.

That concludes what I sought to say about the general rule argument, the first issue.  The second issue is the issue of construction of section 3B(1)(a) of the ACT AD(JR) Act.  We rely on the actual words in that provision as being vague words which require judgments of degree.  In that respect the question that is posed by the section is like the question posed in the common law test for standing to seek an injunction or declaration.

We say that is supported by the legislative history and in our outline of oral submissions we respond to the issue that is put against us by referring to the Legislation Act (ACT). We say that on the basis of that Act, it is appropriate to look at this extrinsic evidence in the Kerr Committee report and in the second reading speech of Mr Ellicott in introducing the federal AD(JR) Act, that that gives assistance in construing section 3B(1)(a).

I have already dealt with the point about remoteness, directness, being labels applied at the end of the day.  My learned friend has relied upon the judgment of his Honour Justice Ellicott in Toohey’s Case.  If one keeps reading past page 437 onto page 438, one sees that Justice Ellicott made it plain that there is a spectrum of impacts, an impact on economic interests may be more or less indirect.  So some indirect impacts might be sufficient and the use of the word “indirect” does not import some kind of rigidity about that judgment. 

So, as his Honour Justice Keane noted, it is a question of more or less adverse, more or less of an interest, perhaps not an interest of all, perhaps just a belief.  So in response to the appellants, this is not a matter of some bald dividing line between direct and indirect.  The appellants invite this Court to put aside the words of 3B(1)(a) to disapprove Onus v Alcoa, Batemans Bay, Big Country, McHattan which the Court approved in Allan v Transurban City Link by holding that there are no judgments of degree to be made.  Referring to the label is simply a reference to making judgments of degree.  Ultimately, the appellants retreat from their claim that one should not make judgments of degree and simply argue about the label. 

There is nothing in the Court of Appeal’s judgment to suggest that a future or contingent interest cannot found standing.  The Court relied upon Batemans Bay where the interest would be affected contingently and in the future and, indeed, where standing was achieved in respect of a commercial interest.  So that indicates there is no error by the Court of Appeal in that respect.

Finally, on this second issue, the appellants rely on the decision of her Honour Justice Kiefel in H A Bachrach v Minister for Housing under the Judicial Review Act 1991 (Qld), Part 3, which is equivalent to the federal AD(JR) Act and the ACT AD(JR) Act. Your Honours will see that at page 137, her Honour relies, inter alia, on the Queensland Newsagents Federation Case and in that case his Honour Justice Spender treated the relevant issues as remoteness issues and used that language.

Her Honour was deciding an interlocutory application – her dismissal of the proceedings – and made it very plain – and we have dealt with this in our outline of oral submissions under issue 2.4 and footnotes 8 and 9.  Her Honour made it clear at 137 that there would need to be evidence at the final hearing to substantiate the claim to standing and that at this interlocutory stage her Honour had sufficient before her to be persuaded that the decision potentially had an adverse effect on interests such that they may be exposed to peril.  So that is a very different case to the case that was before the primary judge in the present circumstances.

I think I have addressed the peripheral relevance of issue 3 and can pass on to issue 4 which concerns the fresh factual finding that the appellants seek that this Court should make in substitution for that of the primary judge that was accepted by the Court of Appeal.  There was lay evidence on standing.

HAYNE J:   Just before you develop this, is that fair to say that the appellant is seeking a fresh factual finding?  It is challenging what is a conclusion which is of mixed fact and law, is it not?

MS ALLARS:   I accept that, your Honour.  It is just more accurately described as a question of mixed fact and law, that is so, because section 3B(1)(a) is necessarily part of the exercise of reaching the conclusion.  There was lay evidence directed to standing.  We have dealt with that in our submissions, paragraphs 64 and 65.  We say that properly understood that lay evidence only reflected the concerns and beliefs of the directors of the supermarkets at Kaleen and Evatt that they might be forced to close down and Mr Petsas, the director of Argos, which was the Crown lessee, claimed if there were closure he would have difficulty in getting a new sublessee, but indeed, the lease expired in 2013.

The expert evidence is what is primarily relied upon now by the appellants, although that expert evidence was only admitted after objection which was not pressed by the second and third respondents on the basis that the evidence would be admitted subject to relevance.  The only relevance that it had was with respect to claimed jurisdictional facts and the primary judge found against the appellants on the construction of the legislation in terms of jurisdictional facts.  So we need to keep that in mind that this was not expert evidence adduced for the purpose of establishing standing.

HAYNE J:   But do you say therefore that the courts below were not entitled to proceed on the factual footing that approval would have the consequences of 7.5, 8 per cent, whatever it was, effect on turnover?

MS ALLARS:   I do not put it that high, your Honour, it is really more of a forensic point.  Your Honours have been taken to Mr Duane’s report that was part of the application for development consent.  If your Honours were to go to page 567 of that report of volume 1 of the appeal book – I am sorry, no, volume 2 of the appeal books, page 567, there is reference to the impact on the centres at Kaleen and Evatt as being in the order of 7.5 to 8.5 per cent:

this impact is well within the bounds of normal competition (less than 10%), based on the accepted standards for Economic Impact Assessments.

GAGELER J:   What are they?  What are the accepted standards?

MS ALLARS:   Well, Mr Duane worked on the basis of certain assumptions which were challenged by some of the experts appearing for the appellants.  They do not appear to have challenged this issue of the 10 per cent being within normal bounds.  They challenge some underlying assumptions such as growth rates for centres and assumptions about what would be the gross floor area, the GFA, for the proposed supermarket.

GAGELER J:   I just do not understand the concept of normal competition, or normal bounds.

MS ALLARS:   The concept seems to be that profitability varies, and if it is affected by a degree of 10 per cent, that is just part of the ups and downs of business, given perhaps the attractiveness of the centre, the parking arrangements ‑ ‑ ‑

FRENCH CJ:   Are you sure that does not mean simply that the impact is what you would expect as a consequence of introducing another competitor into the region; that is, in the centre where the development is proposed?

MS ALLARS:   Yes, nothing more than normal expectations.

HAYNE J:   That is to say, introducing a competitor would normally be expected to have an adverse economic consequence for those presently in that relevant market.

MS ALLARS:   Yes.  Your Honour Justice Gageler’s question might be answered a little bit better if one goes to the second report of Mr Duane, which is annexed to his affidavit in the proceedings, in volume 1 at page 266.  Mr Duane explains some of the material in the economic impact assessment that he provided.  At page 266, paragraph 4.3, Mr Duane explains that:

it is commonly accepted by retail economists in planning court and tribunal cases that Economic Impact Assessments have typically been assessed as follows –

and he sets out the three ranges –

i.10% is within the normal competitive range.

ii.10%‑15% is in the high range.

iii.Above 15% is in the very high range –

He goes on ‑ ‑ ‑

FRENCH CJ:   There is no actual framework set up for ‑ ‑ ‑

MS ALLARS:   It is a framework of ‑ ‑ ‑

HAYNE J:   You will hurt, you will really hurt, and boy, this will hurt.

MS ALLARS:   That is right.  He then goes on at page 268 – sorry, I should first go to page 267, 4.7:

Impacts of 15% are not necessarily of themselves adverse, particularly when tenants are already trading at very high levels . . . 15% or greater –

It may be ‑ ‑ ‑

FRENCH CJ:   Well, there is some value assumption underlying that, is there not, the word “adverse”.  He is feeding in his own normative assessment of ‑ ‑ ‑

MS ALLARS:   Yes, but he was not in a position to have any inkling as to how these two centres were trading.  That is a point made in the cross‑examination of Mr Hack, on which the appellants rely, which I will come to.

BELL J:   If you have a look at the report at 567 to which you first directed our attention, he goes on to speak of the projected impact being minimal, and not threatening the viability of any of the facilities.  So that when one sees the notion of 10 per cent or less being within normal limits, this is in a context of a consideration of whether in the competitive environment entities are likely to go under, is it not?  That is how one understands some of this material in Mr Duane’s two reports, surely?  When he is saying it is not an adverse impact, he is saying these businesses will survive the introduction of this added competitor, albeit they will lose, let us say, 10 per cent of their profitability.

MS ALLARS:   That is certainly a matter to which he paid attention and that explains, most likely, the references in the judgments of the primary judge in the Court of Appeal to that idea, but one should not draw from that any suggestion, in my submission, that the Court of Appeal regarded forced closure as the only level of impact that would be sufficient.  He simply refers to that and, no doubt, that is towards the other end of the spectrum.  It just was not satisfied that this was a case that got over the line earlier on in the spectrum.

HAYNE J:   But do you accept that an existential threat would be sufficient to ground standing.

MS ALLARS:   The existence of the supermarket?

HAYNE J:   No ‑ ‑ ‑

MS ALLARS:   Existential sounds like a concern or belief.

HAYNE J:   But a threat to the very existence of the business would be sufficient to ground standing.

MS ALLARS:   If it is a threat one needs to ask whether it is fanciful or speculative, so one does need some evidence that there is ‑ ‑ ‑

HAYNE J:   Leave aside how it is established – I am excluding the fanciful and unreal.  If you demonstrated that if this centre went ahead, my business will close.

MS ALLARS:   Yes, yes, if there is ‑ ‑ ‑

HAYNE J:   Standing.

MS ALLARS:   ‑ ‑ ‑ evidence to show that it is not just a concern or belief and there is some evidence to support that possibility in the future, that may be sufficient.

HAYNE J:   What distinguishes that case from the case where the trader says, open this competitor, my turnover and my profit will drop by 8.5 per cent?  What is the distinction?

MS ALLARS:   Just a judgment of degree, your Honour.

HAYNE J:   And the judgment of degree founded on what principle other than feels like?

MS ALLARS:   Only the principle that some claimed interests may collapse into mere beliefs.  Some interests may be interests but they are not adversely affected because for something to be adverse it needs to be bigger rather than smaller.  Is there an actual effect?  There might be other factors which are also impacting on profitability, so those are factors drawn from the test in 3B(1)(a).

FRENCH CJ:   So the engagement with the statutory language of these evaluative judgments occur at the point of determining whether there is an interest, determining whether there is an effect which is adverse and, also in the light of the first respondent’s submissions, the causal connection.

MS ALLARS:   Causal connection, we accept that.  We, of course, like the first respondents, do not say that this imports tort concepts of proximity but ‑ ‑ ‑

FRENCH CJ:   No, no, but there is analogous reasoning in the Trade Practices Act, they use the word “by”, which is the same word.

MS ALLARS:   Yes, the word “by”.  There is some kind of causal relationship, yes.  We accept all of that flows from 3B(1)(a) and that is consistent with the common law test of standing to seek an injunction or declaration, and all of that is consistent with the extrinsic material.  Your Honours, if I just very quickly complete this reference to the evidence, going to Mr Duane’s second report at page 268 at paragraph 4.11.  Mr Duane notes that the larger supermarket, which is Kaleen Plaza at the group centre, is 1.5 kilometres away. 

Now, of course, this is not one of the appellants.  This is a group centre, not a local centre, and Mr Duane estimated the loss of turnover of that centre to be 12 per cent.  But it is rather ironic because that group centre is in competition with the Kaleen local centre as well and you cannot really exclude competition between group centres and local centres, although they are at different points in this hierarchy.

Then there is reference at 271.  I will pass over the map which your Honours have already seen elsewhere at 269.  The table at 271, your Honours have seen that table.  I will pass over to Mr Hack’s evidence at page 233.  Mr Hack refers to the variables which affect these kinds of assessments and that is in answer to the question that appears next to paragraph 9, so there is a discussion through from paragraph 9 to paragraph 11.2 about these various factors.  In particular 11.1, “trade areas and sizes of supermarkets is important” in assessing possible economic impact.  There was an argument between the experts about the GFA of the proposed supermarket at Giralang and one sees that ‑ ‑ ‑

FRENCH CJ:   Sorry, GFA?

MS ALLARS:   The gross floor area.  If one comes to page 237, at paragraph 17.1, Mr Hack addresses that:

The only area of disagreement –

that he had with Mr Duane concerned –

the forecast turnover level.

HAYNE J:   What turns on this degree of particularity of the differences?  How does that bear upon the argument?

MS ALLARS:   Well, it bears upon the argument in terms of the different approaches taken by two of the appellant’s experts, and without taking your Honours to their evidence, Robertshaw, at page 221 to 223 gave evidence that she disagreed that the GFA of the proposed supermarket at Giralang was no greater than 15,000 square metres.  There was also a difference in that regard stated by Mr Leyshon at page 146, paragraph 2.3.9, and there is further reference in his evidence to the variables that affect

calculation of these impacts on turnover of a centre.  Mr Adams, the third of the experts for the appellants, at page ‑ ‑ ‑

HAYNE J:   Forgive me for interrupting again.  Mr Hutley takes us to none of these.  He relies on the experts called by the other side.  What is it for the purposes of your argument that I should get out of this trawl through the facts?

MS ALLARS:   Simply that these are estimates, that in response to Mr Hutley’s reliance upon the cross‑examination of Mr Hack, the question of these assumptions was important.  That is, Mr Hack was asked whether an impact of 10 per cent could send a supermarket under.  I do not need to take your Honours to it, but it is at page 60.  I think Mr Hutley took your Honours to it.  What Mr Hack actually said in cross‑examination was that if a centre is trading well below industry average, then 10 per cent could force closure, but only on that assumption, and so the evidence, such as it was, did not support anything other than, at its highest, an impact of 7.5 or 8.5 per cent.  It certainly did not support any more significant impact than that.

FRENCH CJ:   That is a factual base upon which the assessment as to interest is made.

MS ALLARS:   Yes, and the primary judge had to grapple with this conflict between the experts and disagreement about the assumptions which led to these calculations of percentages.  But, at the end of the day, none of the experts for the appellants were prepared to say that the loss of profitability was greater than 10 per cent.  I think that completes the submissions for the second and third respondents.

FRENCH CJ:   Thank you, Ms Allars.  Yes, Mr Solicitor.

MR GARRISSON:   May it please the Court.  You have the first respondent’s outline of oral submissions.  I propose, having regard to the submissions of the second and third respondents, to address only point f in that outline of submissions and, in essence, to pick up his Honour Justice Gageler’s question about the extent to which one has regard to the Planning Act in determining the question whether a person is adversely affected by a decision.  The starting point, your Honours, perhaps, is the judgment of Justice Gummow in Alphapharm Pty Ltd v SmithKline Beecham (1994) 49 FCR 250 at page 272.His Honour, from lines 10 through to 38, says:

The primary issue on the appeal is whether the primary judge erred in her conclusions as to standing for the purposes of –

the Act under consideration there:

Like the expression “a person aggrieved”, the phrase “a person whose interests are affected by the decision” and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review.  The day is long gone when there was any general presumption that in such statutes the “interests” concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law.  However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute.  In each case, the content of the terms “affect” and “interest” are to be seen in the light of the scope and purpose of the particular statute in issue.

FRENCH CJ:   That is a reference to the statute providing for standing.

MR GARRISSON:   And, your Honour – and I will come back to that – the point is that the effect on the person is the effect by the decision and the decision that is in issue is the decision under the Planning Act.  His Honour goes on towards the bottom of that quote:

It is vital to approach the issues on the present appeal upon a review of the scope and purpose of the Act.  That this is so is suggested by the very definition of “initial decision” –

One has to look at the decision.  Your Honours, Justice Gageler inquired as to whether there were any planning cases that dealt with the issue.  In the Court book, volume 2, at pages 662 to 663, the Court of Appeal sets out a quotation from this Court’s decision in Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 687. Now, that is not in our list of authorities, your Honours. The relevant part of the quotation in the Court of Appeal’s judgment is that of Justice Stephen, which, at page 663, paragraph 47 to 48:

However, the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.

A little later in the judgment, his Honour Chief Justice Barwick opined at page 681, about point 3:

I desire to say that it is my opinion that economic competition feared or expected from a proposed use is not a planning consideration within the terms of the planning ordinance governing this matter.

GAGELER J:   Do you accept Ms Allars’ concession that clause C33 is a mandatory relevant consideration under the Planning Act?

MR GARRISSON:   Under the Planning Act, indeed, your Honour, but it is one of many considerations and it is not determinative of the decision that is made, and I will come to C33 shortly, your Honour.

GAGELER J:   It is hard to see how Kentucky Fried Chicken helps you.

MR GARRISSON:   Well, we are speaking, your Honour, of competition between the parties and, indeed, Chief Justice Barwick said competition impacts if it is shown to be destructive of the amenity of the neighbourhood, and in looking at the question of competition, your Honour, in the context of the Planning Act and in the context of C33 the relevance is to look at, as I respectfully submit, the language, scope and object of the planning and legislative scheme.  The judgment in Kentucky Fried Chicken related to the Melbourne Metropolitan Planning Scheme Ordinance and the Minister says that the same principles apply to the Planning Act.  If I may take the Court briefly ‑ ‑ ‑

KEANE J:   But is not the point – the point that is being made in those cases, if one applied it to C33, it is really stating that, yes, you look at the effect on the community in terms of the public interest because the public interest is in not having commercially unviable local centres, but to say that is not to say that a trader who will be adversely affected by a decision which the trader says is made unlawfully does not have standing to complain about the unlawful decision.

MR GARRISSON:   That, of course, your Honour, is a matter of the evidence as presented to the Court about whether relevantly the trader is adversely affected by the decision. 

KEANE J:   But these observations by Justice Stephen and Chief Justice Barwick are directed to relevant considerations such as C33, which bear upon the decision, not upon the standing of someone to contest whether the decision should be made or not.

MR GARRISSON:   The purpose of referring to Kentucky Fried Chicken and the concept of the place of competition, if you will, in a planning scheme is reflected in the ACT’s planning scheme, starting with the National Capital Plan.  I will not take the Court to the details of the planning scheme.  That has been addressed in the judgment at first instance.

FRENCH CJ:   But is this not based on a misreading of what Justice Gummow said in the passage you quoted from Alphapharm? He said at page 272:

In each case, the content of the terms “affect” and “interest” are to be seen in the light of the scope and purpose of the particular statute in issue.

The statute he is talking about there is the statute which provides for review mechanism, is it not?

MR GARRISSON:   In Alphapharm that, of course, was correct, your Honour, because that is where the relevant claim for relief came and it was the statute that actually governed the behaviour and the content that was in issue.  Here we have the AD(JR) Act which is a facilitative provision to enable decisions under a plethora of legislation to be reviewed.  To determine whether a person is affected by a decision, one must perforce consider the actual decision and the legislative scheme pursuant to which it is made, otherwise one can well envisage a circumstance where a very significant field of potential claimants would be enlivened.  Nothing more so ‑ ‑ ‑

HAYNE J:   Why should we be frightened by that?

MR GARRISSON:   Your Honour, not wishing to suggest that the Court would be frightened by anything ‑ ‑ ‑

HAYNE J:   Why should we be alarmed by that then?

MR GARRISSON:   Well, your Honour, the drafters of the legislation would be alarmed and, hence, my submission.

HAYNE J:   Well, life is like that.

MR GARRISSON:   Hence, my submission that if one looks at the whole planning scheme you have the town centres that are established and prescribed under the National Capital Plan. 

HAYNE J:   But the problem to which you advert, Mr Solicitor, is a problem resolved by establishing special review mechanisms for town planning cases.  We are concerned with the engagement of the general administrative decisions scheme and why should we start confining, or reading in a niggardly fashion, those who may complain of what is essentially a decision not in accordance with law?

MR GARRISSON:   Well, your Honour, it is my respectful proposition that to determine whether a person is adversely affected by a decision, again, one has to look at the decision.  The decision is made in a statutory framework.  It establishes the rights, liabilities and obligations of parties to it.  It also determines the parameters of whether a person is relevantly going to be adversely affected by that decision by looking at the scheme to determine the legislative intent about what adverse effect will be.  In the planning scheme it is, in our respectful submission, clear that first of all you have the town centres and their purpose is to provide retail, commercial, cultural, entertainment and other facilities to meet community needs.  That is at pages 85 to 86.

FRENCH CJ:   Does this amount to saying you read up or read down the content of interest and adverse effect by reference to the policy of the statute with which the AD(JR) proceeding is engaging?

MR GARRISSON:   Yes, your Honour, on the express terms of the legislative scheme.

FRENCH CJ:   In other words, the scope of the interest sufficient to support characterisations of “person aggrieved” and the adverse effects upon that interest is informed by public policy considerations which would vary from one statute to the next.

MR GARRISSON:   The policy considerations reflect the content of the scheme, and if one looks at every level of the scheme from the National Capital Plan, to the Planning Act, to the Territory Plan, to the local centres in which C33 appears, the sole purpose and function of the planning system is to, in fact, address local amenity.  It is not to address matters of pure competition.

HAYNE J:   That is establishing a dichotomy that may or may not be valid, Mr Solicitor.

MR GARRISSON:   Your Honour, we say it is relevantly consistent with the approach that has been taken by the second and third respondents in their submissions in relation to the question of standing and the question of whether someone is adversely affected, and that is that it is a question of degree.  There is no particular magic use of language and, I think as your Honour the Chief Justice indicated, the words are used generically to describe a range of different things that occur in a number of different decisions, so whether the fact of what is required is what is the degree to which the person is so affected that they become considered to be adversely affected by the decision.

GAGELER J:   This approach of reading the criterion for standing through the lens of the enactment under which the decision is made appears to have been adopted first in the Right to Life Case, rather than Alphapharm.  Right to Life was a case under the AD(JR) Act.

MR GARRISSON:   Yes, your Honour; also in Big Country, as I recall, your Honour.

GAGELER J:   Which followed Right to Life; so the approach to which you pointed in Alphapharm adopted by Justice Gummow was adopted by him, as I read it, a few months later in the precise context of the AD(JR) Act.

MR GARRISSON:   Yes, your Honour.

GAGELER J:   It is really the Right to Life Case that you needed to take us to, I think.

MR GARRISSON:   I can do that, your Honour.

GAGELER J:   Perhaps just page 84 of 56 FCR 50. That seems to be the starting point for your argument ‑ page 84, letter F and following.

MR GARRISSON:   Yes, your Honour, yes:

The use by the parliament of the term “aggrieved” is significant in several respects.  First, it suggests that the question of standing is not answered simply by identification of a person who is an effective and faithful representative of the public interest in due administration of the law concerned.  Secondly, it directs attention to what in federal administrative law are the constitutional limitations upon any statutory system which expands the concept of standing in a court exercising federal jurisdiction beyond the ambit of a “matter” –

And below that, starting halfway through paragraph – the other half –

The court has jurisdiction conferred when there is a “person aggrieved” by a “decision” which is “of an administrative character” and made “under an enactment”.  These matters are indicated by the terms of s 5(1), when read with the definitions in s 3.  A “decision” includes a refusal to revoke an approval, consent or permission.  The “enactment” must, to put it broadly, be a statute or instrument made thereunder.  The reference in s 5(1) to a person who is “aggrieved” includes (but, of course, is not limited to) a reference to one whose “interests are adversely affected” by the decision:  s 3(4)(a).

Hence the importance, in assessing whether the applicant is “aggrieved” and in ascertaining the content of the terms “interests”, “affect” and “adversely”, of the nature, scope and purpose of the particular enactment under which the decision has been made ‑

and that is the relevant point there –

enactment under which the decision has been made.  In a sense, the position is analogous to that established by the precept that the ambit of an administrative discretion, otherwise unconfined, is to be determined with regard to the subject matter, scope and purpose of the statute by which it is conferred ‑

That is it, your Honour.

GAGELER J:   Yes, that is your point.

MR GARRISSON:   Yes, it is the point.  I am grateful to your Honour for drawing my attention to the earlier…..in which in fact I had noted but just not noted for presentation to your Honours.  The short point about criterion 33; it is a criterion, it is not a rule, which means that it is qualitative and, in fact, the local code points out that distinction in its terms.  It is procedural.  It states that other commercially viable, local centres should be considered.  It is not concerned with trade competition per se.  Read in context, as I have earlier indicated, it is concerned with preserving local amenity, so residents continue to shop at local shopping facilities.

C33, respectfully, must be read consistently with the National Capital Plan, which is paramount, and that is the purpose has to meet the varying needs of the residents, in simple terms, so that the residents of the Territory have the convenience of being able to shop locally instead of, perhaps necessarily, travelling to a group centre or town centre.  The position therefore is, your Honours, that the interpretation for which the second and third respondents contend, in relation to the question of a person adversely affected, we say it is also consistent with a view that has regard to the terms of the Planning Act and the planning scheme, in determining the question of whether one is adversely affected ‑ there was, not wishing to go into the evidence, that has been explored at some length by both the appellants and second and third respondent.

So the only point that we wish to add to the submissions that have already been put is that one should and, indeed, must have regard to the nature of the planning scheme in determining whether or not a person is adversely affected.  The matter here is that the evidence was of some effect – accepted that there was some effect on the appellants.  There was no particular evidence about what that effect would be aside from statements by some of the directors of the appellant companies in the evidence.  We say, respectfully, that it is simply at this point, without further evidence, a matter of competition.  We say if one looks at the planning legislation that is not an interest that is too remote from the subject matter of the Planning Act. 

FRENCH CJ:   Just going back to what was said in the Right to Life Case, what is the logic that supports an analogy between giving content to the terms “interest”, “effect” and “adversely” by reference to the statute with which they engage and informing an administrative discretion within a statute by reference to its subject matter, scope and purpose?  I know it is said there it is analogous but, with all due respect, what is the logical pathway which connects the two propositions?

MR GARRISSON:   It is the concept of a decision, your Honour.  It is the decision that relevantly has the capacity to affect a person’s rights or interests and, hence, lead to determining whether – of course many people’s interests can be affected by a decision – and it leads to the logical consequence that one then needs to determine, well, is that person relevantly adversely affected?  As in many of the legislative schemes, the fact that a person may be affected may not necessarily lead to the conclusion that they are going to be adversely affected when one considers that particular legislative scheme.

FRENCH CJ:   I wonder whether we are not losing sight of the overarching purpose of the AD(JR) which apart from providing for a simplified form of access is to enhance decision‑making by ensuring it is lawful.

MR GARRISSON:   Indeed, your Honour, and whether it has simplified it or not, I am not quite sure. 

FRENCH CJ:   Having regard to the places upon which the package was originally introduced back in the 1970s.

MR GARRISSON:   Indeed, your Honour. 

GAGELER J:   One way I suppose you can get there is the way in which Justice Lockhart reasoned in the same case and that is to say this definition of “person aggrieved” is an ambulatory provision.  So you, in effect, read it in to determine standing under each enactment under which a decision could be made.  So you have potentially different answers on the same factual scenario, depending on the particular enactment under which the decision has been made.

MR GARRISSON:   Respectfully correct, your Honour.  It would be my submission, your Honour.

HAYNE J:   Well, an alternative point of view would be that what Justice Gummow was saying was that just as in constitutional law you cannot compartmentalise standing and matter, error beckons if you compartmentalise standing under the AD(JR) Act from the decision under the enactment which is the subject of complaint.

MR GARRISSON:   Yes, your Honour.

HAYNE J:   All this said in the context of preliminary trial of issues.

MR GARRISSON:   Yes.

HAYNE J:   Three questions having been shelled out and some judicial complaint about that having been done.

MR GARRISSON:   Well, of course, here, your Honour, we are dealing with a final judgment and, indeed, several of the decisions on standing have been objections to competency or other interim applications.  Here we have a final decision based on the evidence that was before the trial judge in which he has formed the conclusions that the second and third respondents have drawn your attention to.  Unless the Court has any further questions, I have no further submissions to make.

FRENCH CJ:   Thank you, Mr Solicitor.

MR GARRISSON:   Thank you, your Honour.

FRENCH CJ:   Yes, Mr Hutley.

MR HUTLEY:   Your Honours, the discussion of significance in the experts is best understood if one goes to what Mr Hack said at page 232 at paragraph 8 where he was addressing the question which he was asked and why he was expressing questions of significance and insignificance and, in effect, it was town planning experts expressing views about the C33 criterion.

HAYNE J:   Town planning experts construing the legislative instrument.

MR HUTLEY:   You are a long way from Kansas, your Honour.  Exactly, and we say that has nothing to do with the question of standing that is either of assistance or not of assistance in the administrative law side and the judgment of the ultimate issue and that is a matter which your Honours do not need to pass upon.  It has, in our respectful submission, nothing to do

with the issue with which your Honours are concerned.  Now, if in the Right to Life the Court was saying that sections 5 and 3B, in effect, are concertinas that sort of expand and contract with the particular legislative regime to which they are directed, we say that is wrong.

Firstly, we would say - and no analogy with Alphapharm can be drawn because Alphapharm was dealing with a very narrow particular piece of legislation with questions of aggrieved, being aggrieved by decisions, not by reference to questions of law of the expansiveness of the traditional administrative law variety which we have dealt with, which, as we submitted, of their nature, can give rise to decisions whilst purportedly under an Act are created by reference to criteria antithetical to the Act and that is the very thing which is wrong with them.  That is what makes them unlawful and thereby apt to adversely affect persons.

If you have the somewhat surprising result that a truly irrational judgment such as to engage the Wednesbury‑like provision and thereby affect people remote from any contemplation of the Act, would, on this analysis, not have standing because the Act did not contemplate them as falling within the scope. 

Now, in our respectful submission, if that is the effect of the decision of Right and the reasoning we say, with the greatest respect to Justice Gummow, it is wrong, and should be removed.  We do not say he was saying that necessarily.  I think we submit it developed in Big Country.  His Honour was looking to a much narrower question of the variety that your Honour Justice Hayne observed about issues of matter, which, to an extent, in this Court have moved on in the Truth about Motorways Case in relation to those such questions.

We say his Honour was not saying that.  If his Honour was, it is wrong.  That is why we say the Big Country decision is wrong, because the Big Country decision – it was found as a fact there was significant financial adverse effect and it was said that was outside the scheme of the legislation because the legislation excluded from the purview of its concern economic impacts.  That is all we wish to say in relation to that, and other than that, I think, your Honours ‑ ‑ ‑

FRENCH CJ:   Thank you, Mr Hutley.  The Court will reserve its decision.  The Court adjourns until 10.15 on Tuesday, 14 October.

AT 12.36 PM THE MATTER WAS ADJOURNED