Argos Pty Ltd v Corbell

Case [2014] HCA 50

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, BELL, GAGELER AND KEANE JJ

ARGOS PTY LTD & ORS  APPELLANTS

AND

SIMON CORBELL, MINISTER FOR THE
ENVIRONMENT AND SUSTAINABLE
DEVELOPMENT & ORS  RESPONDENTS

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

[2014] HCA 50

10 December 2014

C3/2014

ORDER

1.The appeal of the second and third appellants be allowed.

2.The first to third respondents pay the costs of the second and third appellants.

3.The appeal of the first appellant be dismissed with costs.

4.Set aside the orders of the Court of Appeal of the Supreme Court of the Australian Capital Territory made on 29 November 2013 insofar as they relate to the second and third appellants and, in their place, order that the second and third appellants have their costs of the proceedings to date in that Court.

5.Remit the matter, insofar as it relates to the second and third appellants, to the Court of Appeal for further hearing on grounds 4.2, 4.3 and 4.6 of the notice of appeal filed in that Court and dated 2 August 2012.

On appeal from the Supreme Court of the Australian Capital Territory

Representation

N C Hutley SC with C L Lenehan for the appellants (instructed by Bradley Allen Love Lawyers)

P J F Garrisson SC, Solicitor-General for the Australian Capital Territory with J J Hutton for the first respondent (instructed by ACT Government Solicitor)

M N Allars SC for the second and third respondents (instructed by King & Wood Mallesons)

Submitting appearances for the fourth, fifth and sixth respondents

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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

Administrative law – Judicial review – Standing – Minister approved development application for commercial development – Appellants conducted businesses near site of proposed development – Appellants alleged development would adversely affect their economic interests – Whether appellants are persons aggrieved by the Minister's decision.

Words and phrases – "person aggrieved", "person whose interests are adversely affected".

Administrative Decisions (Judicial Review) Act 1989 (ACT), ss 3B(1)(a), 5(1).

  1. FRENCH CJ AND KEANE J. The first, second and third appellants carry on their respective businesses at premises located within the Australian Capital Territory ("the ACT"). The first respondent, the Minister for the Environment and Sustainable Development ("the Minister"), made a decision under s 162 of the Planning and Development Act 2007 (ACT) ("the Planning Act") to approve a proposal by the second and third respondents for a new commercial development at a site near the appellants' premises. The appellants sought judicial review of the Minister's decision under the Administrative Decisions (Judicial Review) Act 1989 (ACT) ("the ADJR Act").

  2. Under s 5(1) of the ADJR Act, as it was at the time material to this matter, a person aggrieved by a decision was entitled to make an application to the Supreme Court…

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AGLC
Argos Pty Ltd v Corbell [2014] HCA 50
Case
[2014] HCA 50
Decision Date

CaseChat Overview and Summary

The case involved Argos Pty Ltd (the first appellant) and two supermarket operators (the second and third appellants) who sought judicial review of a decision by the Minister for the Environment and Sustainable Development (the first respondent) to approve a commercial development, including a supermarket, at the Giralang Local Centre. The appellants, who operated businesses in nearby local centres, alleged that the proposed development would adversely affect their economic interests through increased competition. The dispute concerned whether these economic interests qualified them as "persons aggrieved" under section 3B(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for the purpose of challenging the Minister's decision. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the appellants, whose businesses were likely to suffer a loss of profitability due to increased commercial competition resulting from the approved development, were "persons aggrieved" within the meaning of the ADJR Act. This required the Court to determine the scope of the "person aggrieved" criterion, specifically whether it encompassed individuals whose interests were adversely affected solely by economic competition, and whether the assessment of standing should be influenced by the purpose or scope of the legislation under which the impugned administrative decision was made.

The High Court held that the test for standing under the ADJR Act is contained within the Act itself and does not vary according to the nature of the decision being reviewed. The Court reasoned that if it was shown, on the balance of probabilities, that the second and third appellants would suffer a not insignificant loss of profitability, no further inquiry into the directness or remoteness of that impact was necessary to establish that their interests were adversely affected. Consequently, they were considered "persons aggrieved" for the purposes of the ADJR Act. The Court rejected submissions that standing should be determined by reference to the scope and purpose of the Planning Act, finding that this would undermine the ADJR Act's purpose of simplifying judicial review.

The High Court allowed the appeal of the second and third appellants, finding they had standing to challenge the Minister's decision. The appeal of the first appellant was dismissed, as its economic interests were considered too remote. The Court set aside the orders of the ACT Court of Appeal concerning the second and third appellants and remitted the matter to that Court for further hearing on specific grounds.

Orders

Orders of the court

1. The appeal of the second and third appellants be allowed.

2. The first to third respondents pay the costs of the second and third appellants.

3. The appeal of the first appellant be dismissed with costs.

4. Set aside the orders of the Court of Appeal of the Supreme Court of the Australian Capital Territory made on 29 November 2013 insofar as they relate to the second and third appellants and, in their place, order that the second and third appellants have their costs of the proceedings to date in that Court.

5. Remit the matter, insofar as it relates to the second and third appellants, to the Court of Appeal for further hearing on grounds 4.2, 4.3 and 4.6 of the notice of appeal filed in that Court and dated 2 August 2012.

Background

Background to the litigation

In this Court, the appellants contended that the owner of a business, who is likely to suffer a loss of profitability from a greater exposure to commercial competition as a result of the Minister's decision, is a person aggrieved under s 3B(1)(a) of the ADJR Act for the purpose of seeking judicial review of that decision. For the reasons which follow, that contention should be accepted. As a result, the appeal by the second and third appellants should be allowed. As will appear, however, acceptance of that contention does not assist the first appellant. Background The first appellant holds a lease of Crown land at the Kaleen Local Centre[1] ("Kaleen"). The second appellant is the sub-lessee of the Crown lease at Kaleen; it operates a Supa Express supermarket (formerly an IGA supermarket) on that site. The third appellant holds a sub-lease of a Crown lease at Evatt Local Centre ("Evatt"); it operates an IGA supermarket on that site. [1]The first appellant is one of eight Crown lessees of the one parcel of land at Kaleen. The second respondent lodged a development application ("the Development Proposal") on behalf of the third respondent under Ch 7 of the Planning Act. The Development Proposal envisioned a commercial development, including a supermarket and speciality shops, at the Giralang Local Centre ("Giralang"). In the ACT, town planning has been regulated by both Commonwealth and Territory legislation since the enactment of the Australian Capital Territory (Self‑Government) Act 1988 (Cth). These complicated arrangements were summarised by the primary judge[2]. It is not necessary to repeat that summary. [2]Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2012) 7 ACTLR 15 at 18‑23 [7]‑[29]. It is sufficient for present purposes to note that the Planning Act provides for the division of the ACT into zones for the purposes of the Territory Plan[3]. The land relevant to the Development Proposal is within the Commercial CZ4 – Local Centre zone. [3]Australian Capital Territory (Planning and Land Management) Act 1988 (Cth), Pt IV. The objectives for the Commercial CZ4 – Local Centre zone are to:"(a)Provide for convenience retailing and other accessible, convenient shopping and community and business services to meet the daily needs of local residents(b)Provide opportunities for business investment and local employment(c)Ensure the mix of uses is appropriate to this level of the commercial hierarchy and enable centres to adapt to changing social and economic circumstances(d)Maintain and enhance local residential and environmental amenity through appropriate and sustainable urban design(e)Promote the establishment of a cultural and community identity that is representative of, and appropriate to, the place"[4]. [4]Zone Objectives for CZ4 – Local Centre Zone. The determination of the Development Proposal was subject to the Local Centres Development Code under the Territory Plan. This Code operated by reference to Rules, which generally required quantitative assessment, and Criteria, which required qualitative assessment[5]. Consideration of the issue of "Amenity" under the General Development Controls for Commercial Zones was subject to Criterion 33. That criterion stated: "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."[6] [5]Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2012) 7 ACTLR 15 at 23 [29].[6]Local Centres Development Code (ACT).The primary judge's decision

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH CJ KEANE J HAYNE AND BELL JJ GAGELER J
The determination of the Development Proposal was subject to the Local Centres Development Code under the Territory Plan. This Code operated by reference to Rules, which generally required quantitative assessment, and Criteria, which required qualitative assessment[5]. Consideration of the issue of "Amenity" under the General Development Controls for Commercial Zones was subject to Criterion 33. That criterion stated: "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."[6] [5]Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2012) 7 ACTLR 15 at 23 [29].[6]Local Centres Development Code (ACT).The primary judge's decision At first instance, the second and third appellants led evidence to the effect that if the Development Proposal were to proceed, increased competition would ensue, which would result in a loss of profit to their businesses at Kaleen and Evatt. The first appellant urged that a loss of trade by the second appellant at Kaleen might lead to the closure of the Kaleen IGA, which might, in turn, affect its economic interests as landlord. The primary judge (Burns J) did not accept that the first appellant's interests were sufficiently affected to satisfy s 3B(1)(a) of the ADJR Act. His Honour accepted the evidence that the implementation of the Development Proposal would adversely affect the profitability of the businesses operated by the second and third appellants[7]. His Honour held that the "real question", as to whether the appellants had standing, was "whether the interests demonstrated by the [appellants] are so directly affected as to justify the right to challenge the impugned decision."[8] His Honour resolved this question in the negative, concluding that:"the [appellants'] interests are simply that the increased competition provided by the development will have an effect on their profitability, based on how they currently run their business [but] this is too remote to make the second and third [appellants] persons aggrieved by the Minister's decision for the purposes of the ACT ADJR Act. As the first [appellant] is one step further removed in terms of the effect that the Minister's decision may have upon it, it follows that it too does not have standing to challenge the decision."[9][7]Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2012) 7 ACTLR 15 at 29 [49]. [8]Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2012) 7 ACTLR 15 at 29 [51], citing Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377. [9]Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2012) 7 ACTLR 15 at 30 [53]. The primary judge noted that Criterion 33 required a decision‑maker to consider significant adverse economic impacts on other commercially viable centres. His Honour said: "the presence of C 33 in the Local Centres Development Code does not indicate a statutory intention to give standing to challenge an approval to which C 33 is relevant to parties whose only interest is a likely economic impact by the proposed development."[10][10]Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2012) 7 ACTLR 15 at 28 [44].

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, KEANE J, HAYNE AND BELL JJ, GAGELER J

In the present case, once it was shown, on the balance of probabilities, that the second and third appellants would suffer a not insignificant loss of profitability in their businesses, no further inquiry as to directness or remoteness or proximity was required[44] in order to determine whether their interests were adversely affected by the decision in question. The adverse effect upon their interests was sufficient to support the conclusion that they were persons aggrieved for the purposes of s 3B(1)(a) of the ADJR Act. Further, as explained in the next section of these Reasons, the statutory criterion for standing under s 3B(1)(a) does not alter according to the scope and purpose of the enactment under which the impugned decision is made.[44]H A Bachrach Pty Ltd v Minister of Housing (1994) 85 LGERA 134 at 137; Loveridge v Pharmacy Restructuring Authority (1995) 39 ALD 103, referred to in Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85 at 94‑95.Interests and relevant considerations The first respondent submitted that the standing provision of the ADJR Act has to be applied with reference to the scope and purpose of the statute under which the decision under review was made. The second and third respondents submitted in similar vein that standing was to be determined by reference to the nature and subject matter of the litigation including the objects of the statute conferring power to make the decision. Those submissions should not be accepted. The test for standing to apply for review of a decision under the ADJR Act is expressed in that Act. The applicant must be "a person aggrieved", a criterion which may be satisfied if the applicant is a person whose interests are adversely affected by the decision. The text of the criterion, on its face, does not allow for its expansion or contraction according to the scope and purpose of the enactment under which the decision is made. It is not to be read or applied with reference to normative considerations based on the policy of the enactment. To do so by reference to individual enactments would undermine an important purpose of the ADJR Act, which was to simplify judicial review processes[45].[45]Kioa v West (1985) 159 CLR 550 at 594 per Wilson J; [1985] HCA 81; Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at 355-356 [32] per Gleeson CJ, McHugh, Gummow and Hayne JJ; [2000] HCA 9. Consistently with that proposition it will be necessary to have regard to the enactment under which the impugned decision is made and the legal effect and operation of the decision in order to determine how the interests of the applicant for review may be adversely affected or the applicant otherwise a person aggrieved. Reference was made to decisions of the Federal Court which might be thought to support a contrary view. One decision said to be in point in this respect was that of the Full Court of the Federal Court in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health ("the Right to Life Case")[46], a case concerning an application under the Commonwealth ADJR Act. The Full Court held by majority that the applicant Association, which was a public advocacy body, did not have standing on that account. Lockhart J, in the majority, held that the applicant had not shown a grievance "beyond that which any person has as an ordinary member of the public."[47] Beaumont J reached a similar conclusion[48]. Gummow J, in dissent in the result, held that it was unnecessary to determine the question of standing because of the want of a reviewable decision. In the course of his Honour's reasoning, however, he referred to the importance of the scope and purpose of the enactment under which a decision has been made in assessing whether an applicant is "aggrieved" and in ascertaining the content of the terms "interests", "affect" and "adversely". In so doing, his Honour referred to Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd[49], which was a case in which the relevant review provisions were part of the Act under which the impugned decision was made. So it was possible to say, as his Honour observed of that case, that "the purposes or ends which the Parliament sought to advance by enacting the statute were not those with which the applicant was concerned and seeking to advance by the processes of judicial review"[50]. But what could be said of the statute‑specific review processes considered in Alphapharm could not be said of the general review processes of the ADJR Act.[46](1995) 56 FCR 50.[47](1995) 56 FCR 50 at 69.[48](1995) 56 FCR 50 at 82.[49](1994) 49 FCR 250.[50](1995) 56 FCR 50 at 84‑85.