Australian Conservation Foundation Inc v commonwealth

[1980] HCA 53

HIGH COURT OF AUSTRALIA

Aickin J.; Gibbs, Stephen, Mason and Murphy JJ.

AUSTRALIAN CONSERVATION FOUNDATION v. THE COMMONWEALTH

(1980) 146 CLR 493

13 February 1980

Administrative Law—Courts

Administrative Law—Locus standi—Commonwealth legislation for protection of environment—Administrative procedures—Development application—Draft environmental impact statement—Conservation group commenting thereon pursuant to administrative procedures—Alleged non-compliance with administrative procedures—Whether conservation group entitled to challenge validity of decision—No private right violated—Absence of special damage—Environment Protection (Impact of Proposals) Act 1974 (Cth), ss. 5-10. Courts—Practice and procedure—Locus standi—No private right violated—Absence of special damage—Whether interest in preservation of environment a sufficient interest.

Decisions

1979, February 16.
AICKIN J. delivered the following written judgment:-
By a summons dated 7th December 1978 the defendants applied for orders striking out the statement of claim in this action and that the action be dismissed with costs on the ground that it does not disclose a reasonable cause of action in that the plaintiff had no standing to bring the action or alternatively that it be struck out and dismissed on the ground that it was frivolous and vexatious in that the plaintiff had no standing to bring the action. (at p496)

2. The plaintiff, Australian Conservation Foundation Incorporated, is a body corporate under the laws of the Australian Capital Territory. The second defendant, the Honourable John Howard, is the Treasurer of the Commonwealth of Australia, the third defendant, the Honourable Ray Groom, is the Minister of State for Environment, Housing and Community Development, the fourth defendant, the Honourable Ian Viner, is the Acting Minister of State for Environment, Housing and Community Development and the fifth defendant, the Reserve Bank of Australia, is incorporated under the provisions of the Reserve Bank Act 1959-1973 (Cth). (at p496)

3. The statement of claim alleges that the third and fourth defendants are the Ministers of State for the time being administering the Environment Protection (Impact of Proposals) Act 1974 ("the Act"). Paragraph 6A of the statement of claim sets out the "objects of the plaintiff", an expression which I take to mean the objects for which it was incorporated pursuant to the relevant law of the Australian Capital Territory. It is sufficient to quote the first two paragraphs of those objects which are as follows:
"(i) to make every effort to ensure that the air, land and waters of Australia are used with wisdom and foresight and that competing demands upon them are resolved in the best long-term interests of the nation;
(ii) to foster the conservation of the distinctive vegetation and fauna and important natural and archaeological features of Australia." The remaining objects are concerned more with powers by which the first two objects may be carried out or achieved and with the means for carrying out and achieving such objects. Paragraph 6B states that the plaintiff has some 6,500 members and that in the furtherance of its objects has made submissions to governments and public authorities in respect of environmental matters including comments made pursuant to the provisions of the Act and the "Administrative Procedures" approved under the Act. Paragraph 6C states that the plaintiff has been paid annual grants by the Commonwealth which have been authorized by the Minister of State for Environment, Housing and Community Development for its purposes "including for the making of comments by it as an interested person in respect of draft environmental impact statements made pursuant to the provisions of the Act and of the Administrative Procedures". (at p497)

4. Paragraph 7 of the statement of claim states that on 13th January 1978 pursuant to par. 3.1 of the Administrative Procedures the third defendant directed the preparation, obtaining and submission to him of an environmental impact statement in relation to the making of a decision by the fifth defendant whether to approve "exchange control transactions" in relation to the proposal by Iwasaki Sangyo Company (Australia) Pty. Ltd. ("Iwasaki") to establish and operate a resort and tourist area at Farnborough in the State of Queensland ("the proposal"). The expression "exchange control transactions" is not explained but I take it to mean transactions which require the consent of the Reserve Bank under the Banking (Foreign Exchange) Regulations. (at p497)

5. Paragraphs 7A-7Q, inserted by amendment, are as follows:
"7A. On or about 28th April 1978 Iwasaki applied to the Defendants or one or other of them for approval of exchange control transactions in respect of the carrying into effect of the proposal.
7B. The said area of Farnborough the subject matter of the proposal comprises both privately owned and public lands over which members of the public, including some members of the Plaintiff, have access and rights of access and use which would be detrimentally affected by the implementation of the proposal. 7C. On or about 23rd June 1978 and pursuant to the Administrative Procedures Iwasaki published what purported to be a draft environmental impact statement in respect of the proposal ('the Draft Impact Statement'). 7D. The Draft Impact Statement did not comply with the provisions and other requirements of the Act and of the Administrative Procedures and did not at any material time constitute a draft environmental impact statement made pursuant to the Act and the Administrative Procedures. 7E. On or about 23rd June 1978, and pursuant to par. 6 of the Administrative Procedures, the Draft Impact Statement was made available for written comment by interested persons and bodies, including written comment by the Plaintiff. 7F. The period during which interested persons and bodies were invited to send written comments in respect of the proposal pursuant to sub-par. 6.3.1 (d) of the Administrative Procedures ended on or about 20th July 1978. 7G. On or before 20th July 1978 and pursuant to the Act and the Administrative Procedures as an interested person and body invited to send written comments in respect of the proposal, the Plaintiff delivered written comments in respect of the proposal ('the Plaintiff's comments') as did other interested persons or bodies who also made written comments in respect of the proposal. 7H. At all material times after 20th July 1978 each of Iwasaki and the Defendants were required to comply with the Act and the Administrative Procedures to consider the written comments made in respect of the proposals, including the Plaintiff's comments, and in particular - (a) Iwasaki thereafter was required to take the Plaintiff's written comments into account by revising the Draft Impact Statement and to prepare a final environmental impact statement ('the Final Impact Statement') in respect of the proposal; and (b) each of the Defendants was under a duty to do all such things as could be done by it or him for ensuring that the Final Impact Statement in respect of the proposal (including revisions of the Draft Impact Statement to take into account the Plaintiff's comments and any suggestions and recommendations made under par. 9.3 of the Administrative Procedures) were taken into account when making the decision alleged in paragraph 8 hereof. 7J. In the premises and at all times since 20th July 1978 the Plaintiff had and now has as an interested person or body a legitimate interest or expectation to ensure - (a) that each of the Defendants would ensure that Iwasaki complied with the requirements of the Act and the Administrative Procedures alleged in sub-par. 7H(a) hereof; and (b) that each of the Defendants would comply with the Act and the Administrative Procedures and discharge the duties owed by it or him alleged in sub-par. 7H (b). 7K. On 26th July 1978 and again on 9th August 1978, and as a person authorised to do so pursuant to s. 10 of the Act, the Plaintiff by notices in writing required the thirdnamed Defendant to inform it as to what action, if any, had been taken or was proposed to be taken for ensuring consideration of the environmental aspects in respect of the proposal.

PARTICULARS

The notices are comprised in two letters to the thirdnamed Defendant from the plaintiff dated 26th July and 9th August 1978 respectively. 7L. Pursuant to the said s. 10 of the Act, the thirdnamed Defendant thereafter was under a duty promptly to inform the Plaintiff in writing as to the matters required of him by the Plaintiff in each of the said notices in writing. 7M. In breach of the said duty, the thirdnamed Defendant refused and neglected to reply promptly to the Plaintiff and delayed replying to the Plaintiff until after he and each of the other Defendants had purported to complete and (sic) consideration of the environmental aspects in respect of the proposal and after the purported approval of the proposal by (the) Defendants or one or other of them by the making of the decision as alleged in par. 8. PARTICULARS

The thirdnamed Defendant did not reply to the Plaintiff's said notices until 11th September 1978, although the decision in respect of the proposal after purported consideration of its environment(al) aspects was made by the Defendants or one or other of them prior to 30th July 1978. 7N. By reason of the matters alleged in par. 7M the Plaintiff was denied the opportunity of making representations and of taking other actions to ensure that pursuant to the provisions of the Act and the Administrative Procedures the Plaintiff's comments in respect of the proposal were taken account of both by Iwasaki and by each of the Defendants. 7O. On or about 29th August 1978 Iwasaki delivered what purported to be the Final Impact Statement prepared in accordance with par. 8 of the Administrative Procedures: (a) pursuant to sub-par. 8.2 (b) of the Administrative Procedures, to the thirdnamed Defendant; and (b) pursuant to sub-par. 8.2 (c) of the Administrative Procedures, to the Plaintiff. 7P. The Final Impact Statement did not comply with the provisions and the requirements of the Act and the Administrative Procedures and did not constitute as (sic) final environmental impact statement made pursuant to the Act and the Administrative Procedures.

7Q. At no material time did Iwasaki prepare a Final Impact Statement in accordance with the Act and Administrative Procedures and none of the Defendants ensured that there was prepared or that the Defendants took into account a final environmental impact statement in respect of the proposal prior to (the) making of any decision in respect of the proposal by them or one or other of them." (at p499)

6. Paragraph 8 of the statement of claim then alleges that on or prior to 30th July 1978 the second, third, fourth or fifth defendants or the servants or agents of the Commonwealth purported to approve the proposal or alternatively purported to approve exchange control transactions in relation to the proposal. Paragraph 9 alleges that the decision was made by the defendants or one or other of them prior to the formulation of and without taking into account any final environmental impact statement prepared pursuant to the Administrative Procedures. Paragraph 10 alleges that the decision was invalid and a nullity by reason of the fact that the procedures provided for in the Act and the Administrative Procedures were not observed in certain specified respects. Paragraph 11 alleges that the second, third and fourth defendants then had and now have a duty to give all such directions and do all such things as can be given or done for ensuring that the procedures under the Act, including the Administrative Procedures, were and are given effect to. Paragraph 12 alleges that the Reserve Bank had and has a duty to observe and assist in giving effect to the procedures "under the Act including the Administrative Procedures". Paragraph 13 alleges that the second, third and fourth defendants are in breach of their duty as alleged in par. 11, and that the Reserve Bank is in breach of its duties as alleged in par.12. (at p500)

7. The relief claimed in the proceedings comprises a number of declarations which it is not necessary for me to set out at length. They comprise a declaration that the decision was unlawful and invalid, that the delay by the third defendant (alleged in par. 7M.) constituted a breach of the duties imposed on him, and that the draft impact statement was not a draft environmental impact statement pursuant to the Act and the Administrative Procedures and that various provisions of the Act and the Administrative Procedures were not complied with. The relief claimed also includes an injunction restraining the defendants from acting on the decision and from purporting to authorize any person to implement the decision and also orders that the second, third and fourth defendants give directions to ensure that the procedures under the Act and the Administrative Procedures are given effect to, and ordering that the Reserve Bank observe and assist in giving effect to the Procedures under the Act, and an injunction restraining the defendants from making any decision or determination in relation to the proposal without taking into consideration or account the contents of a "proper final environmental impact statement". (at p500)

8. Essential to the claim made is a declaration that the decision was and is unlawful and invalid. The expression "the decision" is defined in par. 8 of the statement of claim as being "to approve the proposal or alternatively . . . to approve exchange control transactions in relation to the proposal". The expression "the proposal" is defined in par. 7 as "the proposal by Iwasaki . . . to establish and operate a resort and tourist area at Farnborough in the State of Queensland", but it is possible that it was intended to include in that definition the alternative meaning that the proposal was that the Reserve Bank should approve "exchange control transactions" in relation to the Iwasaki proposal. The form of declaration sought in respect of the "decision" suggests that these two meanings are to be taken as if expressed in the alternative, though in the end it does not appear to make any practical difference. (at p500)

9. It is necessary to refer briefly to the terms of the Act. Section 5 sets out a statement that the object of the Act is to "ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to" the formulation of proposals and carrying out of works, the making of decisions and recommendations and the incurring of expenditure by the Australian Government and authorities of Australia. The term "environment" is defined in s.3 as including "all aspects of the surroundings of man, whether affecting him as an individual or in his social groupings, and 'environmental' has a corresponding meaning". Section 6 authorizes the Governor-General by order to approve "administrative procedures for the purpose of achieving the object of this Act, being procedures that are consistent with relevant laws, as affected by regulations under this Act". Sub-section (2) lists a number of matters for which the approved procedures may provide. They include the supplying of information to the Minister, authorizing the Minister to direct the preparation of statements to be known as environmental impact statements, the making of such statements available for public comment, the holding of inquiries in accordance with the Act, the examination of statements by or on behalf of the Minister, the making of recommendations, comments or suggestions including suggestions or recommendations concerning conditions to which approvals, agreements and other matters should be subject and for exemptions from all or any of the requirements of the procedures. Section 7 provides for orders made under s. 6 to be laid before each House of the Parliament and for the passing of resolutions disallowing such orders. Section 8 requires each Minister to give such directions and do all such things to ensure that the procedures are given effect to and that final environmental impact statements are taken into account in the Department administered by him. Section 9 authorizes the making of regulations which make provision for requiring or permitting a prescribed authority to take into account matters affecting the environment in the taking of any action or the making of any decision and prescribing matters necessary or convenient to be prescribed as incidental to the provisions so made, and it further provides that regulations so made have effect notwithstanding any other law. It appeared that no such regulations had been made. Section 10 makes provision for the obtaining of information from the Minister. Section 11 provides that the Minister may direct that inquiries be conducted by a Commissioner or Commissioners. Sections 12-23 contain machinery provisions relating to such inquiries. In the present case there is no allegation that any such inquiry was ordered. Section 25 provides that the Governor-General may make regulations under the Act. (at p502)

10. On 20th June 1975 the Governor-General approved "Administrative Procedures" under the Act. It is not necessary to set out these Procedures in detail, but it is convenient to note some of the provisions, including the definitions. The term "action Minister" is defined in par. 1.1 as follows:
"'action Minister', in relation to a proposed action, means the Minister of State for Australia responsible for the proposed action."
while the term "the Minister" is defined as meaning the Minister of State for Australia for the time being administering the Act. The term "proposed action" is defined as meaning "a matter referred to in any of the paragraphs of section 5 of the Act". By par. 1.2.1 the action Minister is, as soon as possible after a proposed action has been first formulated, to designate a person or Department as the proponent of the proposed action. Paragraph 1.2.2 provides that the action Minister shall have regard to the general principle that, as far as convenient, the person or Department responsible for the execution of the proposed action should be designated as the proponent, while par. 1.2.3 provides that, in relation to a proposed action to be executed by an authority, the responsible authority shall be the proponent of the proposed action and it shall ensure that the Department is, as soon as possible, informed of the proposed action. Paragraph 1.3 provides that, "before a proposed action is executed, the proponent shall do all things necessary to ensure that these procedures are complied with in relation to the proposed action". Paragraph 2.1 provides for the provision of information to the Minister for the purpose of consideration by him or on his behalf of the necessity for an environmental impact statement in relation to the proposed action and the nature of the information to be so provided is stated in par. 2.2. Paragraph 3.1.1 provides that the Department shall determine on behalf of the Minister that the preparation of an environmental impact statement is not required or refer the question of whether it is required to the Minister; in relation to those determinations a number of matters there set out are to be taken into account. Paragraph 4.1 provides the nature of the information to be given and the matters to be dealt with by an environmental impact statement. There is provision for consultation between the proponent and the Department concerning the matters to be dealt with in the statement. Paragraph 6.2.1 provides that subject to the procedures a draft environmental impact statement shall be made available for public comment in accordance with the procedures as set out. By par. 6.2.3 the Minister is to determine whether the draft environmental impact statement is to be made available for public comment. Paragraph 7 deals with inquiries and reports. Paragraph 8.1 provides that, if written comments are received, the proponent shall revise the draft environmental impact statement to take them into account and by par. 8.2 the proponent is thereafter to produce a final environmental impact statement and provide a copy of it to any person who has made written comments on the proposed action under pars. 6.3.1 (d) or 6.4. Paragraph 9 provides for examination of the final environmental impact statement by the Department and for each Minister to give directions for ensuring that any final environmental impact statement and any suggestions or recommendations made by a Minister or Department are taken into account in matters to which they relate. (at p503)

11. The submission on behalf of the defendants was that the Act and the Administrative Procedures fall into the area of public law in that they deal with the mode of the exercise of the executive power of the Commonwealth and of the powers of authorities of the Commonwealth as defined in the Act, and that the Act enables the executive government to obtain information and to consider any effect which action by the executive or an authority might have upon the environment. For the contention that the plaintiff has no standing to institute proceedings in relation to the performance of such public duties imposed upon the executive government and statutory authorities, reliance was placed upon the principle stated in Boyce v. Paddington Borough Council (1903) 1 Ch 109, at p 114 by Buckley J. where his Lordship said:

"A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right."

This principle has been most recently applied in England in Gouriet v. Union of Post Office Workers (1978) AC 435 where the authorities are fully examined. Lord Wilberforce there stated the general principle at pp. 480-481 and at pp. 483F, 484B, and see also pp. 477D-F in which both proceedings for injunctions and for declarations are dealt with. His Lordship in his review of the matter referred to the long-established rule that a private individual may launch a prosecution for some breach of the criminal law, but pointed out that no such rule exists in relation to civil proceedings seeking civil remedies by way of injunction or declaration. His Lordship added that if private damage has been suffered proceedings to recover such damage are always open to an individual plaintiff. Viscount Dilhorne at p. 494F-G stated the same principle. See also per Lord Diplock at pp. 499G-500E. I do not need to refer expressly to the speeches of the other members of the House of Lords where the same general conclusion was reached after an examination of the authorities. (at p504)

12. There are however a number of cases in which it has been said that the principle involved is that the plaintiff must show that he has a "real interest" or a "substantial interest" in the action. It is true that the expression "real interest" has been used in a number of cases, particularly in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. (1921) 2 AC 438, at p 448 in a speech of Lord Dunedin and some reliance was placed by the plaintiff upon the quotation of that passage by Gibbs J. in Forster v. Jodedex Aust. Pty. Ltd. (1972) 127 CLR 421, at pp 437-438 . It seems to me, however, that both Lord Dunedin and Gibbs J. were dealing with quite a different question from the question whether a private individual having no private interest in the observance of a public duty may institute proceedings for an injunction or for a declaration with respect to the existence or proper exercise of a public duty. In both cases the matter at issue was the protection or enforcement of a private right and not the enforcement of a public right or a public duty. Where a private right exists then the observations made in those cases provide guidance on the question of whether the discretionary remedy of a declaration of right, rather than some more direct remedy, may be granted; they do not appear to me to assist in the present problem at all. (at p504)

13. For the plaintiff it was argued in the first place that the proper course was to adjourn the application to strike out the statement of claim so that the matter might go to trial, reserving the question of the standing of the plaintiff to maintain the proceedings so that it might be decided in the light of all the detailed facts. It does not appear to me that that is a convenient course. The function of the statement of claim is to set out the ultimate facts which it is sought to establish by appropriate evidence or admissions. If the ultimate facts relied upon do not disclose any cause of action it is not in the interest of the parties or of the court that proceedings, possibly both lengthy and expensive, should proceed when the basis disclosed in the statement of claim is incapable of supporting the relief claimed. It is, of course, proper to proceed in such an application upon the basis that all that is required is a reasonably arguable case. In such circumstances it is proper that it should be permitted to proceed, but where a statement of claim and the ultimate facts asserted therein do not disclose even an arguable case, whether through lack of locus standi or some other defect, the interests of justice require that the proceedings should be dealt with at the earliest stage to determine whether that is so or not. (at p505)

14. The second argument advanced by the plaintiff was that the statutory provisions show an intention to give to a private plaintiff a cause of action. It was argued that because of this the first arm of the propositions in Boyce v. Paddington Borough Council (1903) 1 Ch 109 was satisfied, in that the plaintiff had a private right which was being interfered with. It was said that the plaintiff had made a submission to the Minister and therefore had an interest recognized by the Administrative Procedures. It was put in the alternative that the plaintiff had, pursuant to s. 10 of the Act, required the Minister to inform it as to what action was proposed to be taken with respect to the environmental aspects of the proposal and that the section entitled the plaintiff to a "prompt reply" which, as pleaded, it did not obtain. It was argued that this gave to the plaintiff an interest created by the Act sufficient to support these proceedings. I am satisfied, however, that the Act does not disclose an intention to give to members of the public generally, or to those who take either of, or both, the steps referred to, a right to institute proceedings to enforce the provisions of the Act or the Administrative Procedures. Neither those particular steps, nor the provisions under which they were taken are of the same kind as affect a plaintiff adversely in a manner greater than or different from the effect upon members of the public generally. They are not examples of the kind of "special interest" or effect on the person or property of an individual which fall within the established doctrine. Reference was made to s. 9 which provides that regulations override any contrary provisions in other laws of the Commonwealth or State, though the same provision is not made with respect to the Administrative Procedures. It was said that it would be contrary to the scheme of the Act if there were no possible plaintiff other than the Attorney-General. In support of this argument reliance was placed on the observations of Gibbs J. in Victoria v. The Commonwealth and Hayden (1975) 134 CLR 338, at p 383 concerning the locus standi of a State or the Attorney-General of a State to challenge Commonwealth legislation. It does not appear to me to throw any light on the present problem or on the position of private persons seeking to challenge or enforce Commonwealth legislation, a field in which it has long been settled doctrine that such a plaintiff must show some personal interest which is adversely affected, and not merely the same concern as all private citizens. (at p506)

15. The plaintiff also relied upon the decision of Helsham J. in Benjamin v. Downs (1976) 2 NSWLR 199 . In that case the plaintiff sought a declaration that the saying of the prayers, the singing of hymns and the saying of grace in schools conducted by the State of New South Wales constituted "dogmatic or polemical theology" and not "general religious teaching", contrary to the provisions of the Public Instruction Act, 1880 (N.S.W.). The plaintiff had applied to the Attorney-General for his fiat but it had been refused. It was held that he did have locus standi to bring the proceedings notwithstanding that he alleged no damage. The reasons for this conclusion were that he had applied for and had been refused a fiat by the Attorney-General and, secondly, that he had a "real interest" in the subject matter of the action which was "important" and that no other form of proceedings appeared to be available. The learned judge's decision was, as I read it, based primarily upon the dicta of Lord Denning M.R., concurred in by Lawton L.J., in Attorney-General; Ex rel. McWhirter v. Independent Broadcasting Authority (1973) QB 629, at pp 648-649 . Those observations were made, and the decision of Helsham J. given, prior to the decision of the House of Lords in Gouriet's Case (1978) AC 435 . Lord Denning's observations were the subject of comment by each of their Lordships in that case and found acceptance by none - see per Lord Wilberforce (1978) AC, at p 483 , per Viscount Dilhorne (1978) AC, at p 495 , per Lord Diplock (1978) AC, at p 502 , per Lord Edmund-Davies (1978) AC, at pp 509, 511 , per Lord Fraser (1978) AC, at pp 521-522 . I respectfully agree with the views expressed by their Lordships, which I regard as equally applicable in Australia. The decision of Helsham J. is, with due respect, not reconcilable with Gouriet's Case nor with settled doctrine in Australia and the plaintiff in the present case can gain no support from it. (at p506)

16. Reliance was also placed on the decision of Perry J. (as he then was) in New Zealand Institute of Agricultural Science v. Paparua County (1969) NZLR 653 . In that case the defendant council was held to have approved a plan of subdivision of county land which was not in conformity with the council's proposed district scheme. The plaintiff society, which had given notice of opposition to the council's proposed district scheme under the Town and Country Planning Act 1953, was held to be a party to proceedings of a judicial nature and for that reason entitled to seek the Court's assistance in regard to the remedies claimed in the proceedings. Perry J. treated that interest as falling within the general principle stated in Boyce v. Paddington Borough Council (1903) 1 Ch 109 . He said (1969) NZLR, at p 660 :
"Here, the plaintiff is a party to proceedings of a judicial nature" (i.e. under the Town and Country Planning Act) "and although today some decision thereon may have been given, nevertheless, it has rights of appeal. If the balance of the land is to be subdivided, or if dwellings are to be erected, that would be in anticipation of an adverse result to its counter objection and its position might well be prejudiced. Had I thought otherwise, I would have given leave to join the Attorney-General as a plaintiff if he is so willing, or as a defendant otherwise, as was done in Boyce v. Paddington Borough Council."
That decision appears to me to be based upon factors which have no counterpart in the present case, namely, rights of objection and appeal under the Town and Country Planning Act which would be lost or destroyed if the defendant council's actions were allowed to stand. In those circumstances I do not need to consider whether it would otherwise fall within the scope of the decision in Boyce v. Paddington Borough Council, but I do not read it as extending or intended to extend the ordinary operation of the general principle there laid down. The report appears to be in error in relation to the position of the Attorney-General in Boyce's Case. In the proceedings in the Court of Appeal he was joined as a plaintiff, not as a defendant (1903) 2 Ch 556, at p 561 . With due respect, however, I cannot agree that if there were a defect it could be cured by joining the Attorney-General as a defendant. (at p507)

17. In Robinson v. Western Australian Museum (1977) 138 CLR 283 the question of locus standi of the plaintiff was dealt with by all members of the Court. Barwick C.J. dealt with the matter at pp. 292-293 and took the view that the plaintiff had a greater interest than any other member of the public to seek the assistance of the Court to determine the validity of the legislation. Gibbs J. (1977) 138 CLR, at pp 301-303 applied the same test but pointed out that the plaintiff could not attack the legislation generally, but only so much of it as affected his interest. Stephen J. reached a different conclusion on the question of locus standi but applied the same general test (1977) 138 CLR, at p 315 . Mason J. (1977) 138 CLR, at pp 327-328 discussed a number of the authorities, saying, "The rule is generally expressed in the proposition that a person not affected in his private rights may not sue for declaratory relief", but pointed out that in Anderson v. The Commonwealth (1932) 47 CLR 50 the rule was expressed "more liberally" by saying that a plaintiff in the relevant circumstances cannot succeed "unless he establishes that he is 'more particularly affected than other people'". Jacobs J. (1977) 138 CLR, at p 340 said that: "But his right to claim" (salvage) "is sufficient to give him a standing to challenge the validity of the Western Australian legislation which stands in the way of such a claim." Murphy J. (1977) 138 CLR, at p 344 took a somewhat different view based on the decision in Baker v. Carr (1962) 369 US 186 (7 Law Ed 2d 663) . (at p508)

18. It appears to me that although the matter is expressed in slightly different ways in the various judgments there is a clear majority of the Court for the proposition that unless a plaintiff is adversely affected in some way to an extent greater than the public generally he may not maintain an action for an injunction or a declaration in respect of either the validity of a statute or some breach by the executive government or statutory authorities in respect of matters of public law and in particular of breaches of statute or regulations. (at p508)

19. The plaintiff sought to escape the consequences of this established view of the law by reliance upon the Administrative Procedures, as well as by reliance upon an argument that different rules apply with respect to standing in relation to different remedies. It was argued that Gouriet's Case (1978) AC 435 was not material because it was concerned with the enforcement of the criminal law by injunction and that there was here no criminal sanction in the statute and no enforcement procedure laid down. It was said that the question of standing in relation to applications for prerogative writs was one of liberality and that a person aggrieved may apply even if he is a stranger to the proceedings, that the court maintains control only by the exercise of its discretion and that the procedure adopted as in the present case was analogous to the prerogative writs of prohibition and certiorari. In such a case the test was that the applicant must have a "real, substantial or special interest in the performance of the duty". However, it does not appear to me that the adoption of that view would assist the plaintiff in the present case because that expression amounts to saying that the applicant must have some interest in the matter complained of over and above, or different from, that of the general public. It is no doubt true that in relation to the prerogative writs of prohibition and certiorari there is some authority for the proposition that a stranger to the proceedings may apply. Some doubt has been expressed as to the correctness of this view, but it is not necessary to pursue this question here. If the proposition be correct, it is clearly based upon the special nature of those prerogative writs, their procedural requirements and their origin in protecting the jurisdiction of the common law courts from usurpation. Accordingly, I do not think that the cases relating to the prerogative writs have any application in the present case. (at p509)

20. I was also referred to two decisions of the Supreme Court of the United States - Sierra Club v. Morton (1972) 405 US 727 (31 Law Ed 2d 636) and United States v. Students Challenging Regulatory Agency Procedures (1973) 412 US 669 (37 Law Ed 2d 254) - in which questions arose as to the plaintiffs' standing to seek judicial review of administrative action under the Administrative Procedure Act (U.S.) which provides that a "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute" is entitled to judicial review thereof. The judgments make it clear that earlier decisions had adopted a broad view of standing under that section and that those who had suffered "injury in fact" or were "arguably within the zone of interests to be protected or regulated" had standing to sue. The application of that test in the earlier case produced a result not differing from that which would follow from the law as laid down in Gouriet's Case and in Robinson's Case (1977) 138 CLR 283 . In the latter case a much wider application was given to the provision and locus standi recognized as existing in a case in which it would be denied under the English and the Australian authorities. Those decisions provide no basis for departing from the law as expressed in Robinson's Case, even if I were at liberty to do so. (at p509)

21. I should also say expressly that I do not consider that the use of the expression "an interested person" in par. 6C of the statement of claim can improve the plaintiff's position. Even if that paragraph is intended to convey that the expression was used by some person on behalf of the Commonwealth such use cannot affect the legal standing of the plaintiff to maintain this action. (at p510)

22. I am unable to draw an inference from the provisions of the Act and the Administrative Procedures that they show a legislative intention that any private citizen may apply to the court to enforce compliance with their requirements by the executive government or by statutory authorities. It appears to me that the Act and the Procedures are directed towards the regulation of internal governmental procedures and the relations between different organs of government, whether exercising the executive power of the Commonwealth or performing functions as statutory authorities (as defined). (at p510)

23. The procedures are entirely within the control of the executive government and the object of the Act as set out in s. 5 is to ensure "to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account . . ." by the executive and by statutory authorities. By s. 8 each Minister is to give directions for ensuring that procedures are given effect to and that final environmental impact statements are taken into account. This demonstrates that "enforcement" of the Act and of the Administrative Procedures is placed primarily in the hands of the relevant Ministers and that the Act and the Procedures are concerned with the decision-making processes of government. Private citizens may be adversely affected by government decisions and in appropriate cases may resort to the Courts to challenge the power to make a particular decision having such an effect upon them, but that is a matter quite different from enforcement of these internal governmental procedures. If these are duties of an enforceable character placed on Ministers and others, they are enforceable only by the Attorney-General or by those who are themselves adversely affected more than or differently from the general public. It is, in my opinion, clear that a private individual, whether a person or a corporation, is not given, by the Act, either expressly or by implication, a status enabling him to apply to the Court to enforce compliance. (at p510)

24. Special reliance was placed on the fact that the plaintiff had under s. 10 of the Act required the Minister to inform it of what action had been taken for ensuring consideration of the environmental aspects of the matter and that the Minister had not promptly informed it accordingly. These provisions appear to me to reinforce the view that the enforcement of the procedures is in the hands of the relevant Minister and not in the hands of members of the public. The requirement that the Minister shall reply promptly appears to me to be directory, rather than mandatory and in any event to be quite unrelated to the relief claimed. (at p511)

25. This leads me to the final matter for consideration. In my view the authorities to which I have referred above establish that it is an essential requirement for locus standi that it must be related to the relief claimed. The "interest" of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed. I do not mean that, where the relief is discretionary, locus standi depends on showing that the discretion must be exercised favourably. What is required is that the plaintiff's interest should be one related to the relief claimed in the statement of claim. Here the primary relief is a declaration that whatever decision was made was unlawful and invalid. Thus, in the present case, if the decision was to grant exchange control approval to some transaction, that approval was null and void and the transaction if carried out was illegal, so that an offence was committed by persons who may well have known nothing of the procedural defects of which the plaintiff complains. There is, it seems to me, no relationship between that relief and the failure of the Minister to reply promptly to the plaintiff's request for information. The giving of such a reply is not made by the Act or the Administrative Procedures a condition precedent to the making of a decision by the Minister or anyone else. (at p511)

26. In my opinion, the failure to comply with the Administrative Procedures complained of does not give a person who makes a submission an enforceable right to have the relevant administrative decision, and action taken thereunder, declared void and illegal, or merely void. (at p511)

27. It would be one thing to say that a person requesting information is entitled under s. 10 to receive a prompt reply and that there is a corresponding obligation on the Minister to reply promptly, an obligation which might be enforced by mandamus. It is quite another thing to say where there is a failure to reply promptly, the inquirer may obtain from the court a declaration that the decision or decisions made by that Minister, some other Minister or some statutory authority, whether before or after the decision, are thereby null and void. Such a proposition is plainly insupportable. (at p511)

28. Paragraph 7N of the statement of claim alleges that by reason of the matters alleged in par. 7M (the failure of the Minister to reply promptly) it was denied the opportunity to make representations and take other action. This allegation overlooks the fact that neither the Act nor the Administrative Procedures attach any consequence to the making of, or the failure to make, a reply to an inquiry under s.10. No provision requires that action shall not be taken during any specified interval after the reply is received. This allegation is, in my opinion, quite unrelated to the relief claimed. (at p512)

29. I have dealt above with the absence of locus standi to claim the primary relief, the declaration that the "decision" was unlawful and invalid. The same reasons apply to the claim for the declarations set out in pars. A (2) and (3). Paragraph A (4) claims a general declaration in terms of the Act as to the duties of the second, third and fourth defendants, and for the same reasons the plaintiff has shown no locus standi to claim such relief. Paragraphs A (5) and (6) claim declarations that the provisions of the Act and the Administrative Procedures were not complied with and that the "decision" was not in conformity with the Act and the Administrative Procedures and for the same reasons no locus standi is shown in respect of that relief. The same is true of the mandatory order claimed in pars. D and F and the injunction claimed in par. E. (at p512)

30. I am, therefore, of opinion that the plaintiff has no locus standi to maintain these proceedings. This is not a mere defect in pleading which can be cured by amendment, but a defect which is fatal to the plaintiff's cause of action and its entitlement to the relief claimed. It is, therefore, a proper case not merely for striking out the statement of claim, but also for making an order dismissing the cause of action under O. 26,r. 17. (at p512)

31. It was submitted on behalf of the plaintiff that if it was unsuccessful, this would be a proper case for not making an order for costs. Kent v. Cavanagh (1973) 1 ACTR 43 was relied on in support of that submission. I do not need to consider whether the discretion as to costs was properly exercised in that case. The question for me is whether there is in the present case any sound basis for departing from the ordinary practice that a plaintiff who lacks locus standi to maintain proceedings which he has instituted should pay the costs of the defendant. The only reason advanced was the nature of the plaintiff's objects and its pursuit of them. I am unable to see that those objects and their pursuit, in this case by unfounded litigation, provide a reason why the plaintiff should not pay the costs of the defendants in resisting the plaintiff's claim which I have held so lacking in substance that it fails in limine. (at p512)

32. Accordingly, I order that the plaintiff's statement of claim be struck out and that the action be dismissed and that the plaintiff pay the taxed costs of the defendants. I certify for counsel. (at p512)

33. Order that statement of claim be struck out and that action be dismissed. (at p512)

34. Plaintiff to pay defendants' taxed costs. (at p512)

35. The Conservation Foundation appealed to the Full Court from the decision of Aickin J. (at p513)

36. M. R. Wilcox Q.C. (with him G. Griffith and J. H. Karkar), for the appellant. Australian courts have applied a more liberal test than that in Boyce v. Paddington Borough Council (1903) 1 Ch 109 and it has been held that persons who have a special interest to enforce a public law have standing. That special interest need not involve a legal right and need not be an interest peculiar to the plaintiff. It includes what might be called ideological interests such as beliefs or objectives shared by a number of people or a section of society on a moral, social or environmental question. The appellant has standing as a well-known and reputable conservation body with a brief throughout Australia. It also has standing as a person who commented on the draft environmental impact statement. The Australian decisions deal only with the question whether the particular interest in each case is sufficient and do not define the minimum interest for standing. They establish four propositions. (at p513)

37. (1) Special damage can be constituted by a mere apprehension of a disadvantage, be it commercial: Attorney-General (N.S.W.) v. Brewery Employe's Union of N.S.W. (1908) 6 CLR 469, at pp 491, 494-498, 519-520, 548 ; Robinson v. Western Australian Museum (1977) 138 CLR 283 ; political: McDonald v. Cain (1953) VLR 411, at p 420 ; Tonkin v. Brand (1962) WAR 2 ; Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth (1975) 135 CLR 1 ; Cormack v. Cope (1974) 131 CLR 432 ; possible prosecution: Crouch v. The Commonwealth (1948) 77 CLR 339 ; Colonial Sugar Refining Co. Ltd. v. Attorney-General (Cth) (1912) 15 CLR 182 ; environmental: Vanderwolf v. Warringah Shire Council (1975) 2 NSWLR 272 ; or a potential property disadvantage: Blanch v. Stroud Shire Council (1947) 48 SR (NSW) 37, at pp 44-45 . Ideological plaintiffs had standing in Benjamin v. Downs (1976) 2 NSWLR 199 and National Trust of Australia (Vict.) v. Australian T. &G. Mutual Life Assurance Society Ltd. (1976) VR 592 . The genuineness of the plaintiff can be investigated in each case. It is proper to have regard to the plaintiff's identity, its purpose and its objects in determining whether it has suffered a grievance: National Trust of Australia (Vict.) v. Australian T. &G. Mutual Life Assurance Society Ltd. (1976) VR 592 . (at p514)

38. (2) Standing has been denied in only the competitor cases: Helicopter Utilities v. Australian National Airlines Commission (1962) NSWR 747 ; California Theatres Pty. Ltd. v. Hoyts Country Theatres Ltd. (1959) 59 SR(NSW) 188 ; Grand Central Carpark Pty. Ltd. v. Tivoli Freeholders (1969) VR 62 (these decisions are difficult to reconcile with the recognition of business advantage in the constitutional cases: Attorney-General (N.S.W.) v. Brewery Employe's Union of N.S.W. (1908) 6 CLR 469 ; British Medical Association v. The Commonwealth (1949) 79 CLR 201 ; Robinson v. Western Australian Museum (1977) 138 CLR 283 ), and in the taxpayer cases where the plaintiff asserted a claim merely as a member of the public, Anderson v. The Commonwealth (1932) 47 CLR 50 ; Logan Downs Pty. Ltd. v. Federal Commissioner of Taxation (1965) 112 CLR 177, at p 187 . These latter cases merely reject an "open door" approach and do not delimit the interest required for a plaintiff who is affected in a manner different from the public generally. (at p514)

39. (3) The right given to a person to be notified of or object to a proposal is a basis for standing: Vanderwolf v. Warringah Shire Council (1975) 2 NSWLR 272 ; S.S. Constructions Pty. Ltd. v. Ventura Motors Pty. Ltd. (1964) VR 229 ; Dajon Investments Pty. Ltd. v. Talbot (1969) VR 603 ; National Trust of Australia (Vict.) v. Australian T. &G. Mutual Life Assurance Society Ltd. (1976) VR 592 ; Scurr v. Brisbane City Council (1973) 133 CLR 242 ; Brettingham-Moore v. St. Leonards' Municipality (1969) 121 CLR 509 ; Port Louis Corporation v. Attorney-General (Mauritius) (1965) AC 1111 . The plaintiff does not have to establish that he will suffer actual damage. It is enough if he was entitled to have an objection considered. The appellant had a statutory entitlement to have its submission considered and reproduced in the final environmental impact statement and so has standing. (He also referred to Real Estate Institute of N.S.W. v. Blair (1946) 73 CLR 213 ; Forster v. Jododex Aust. Pty. Ltd. (1972) 127 CLR 421 ; Mutton v. Ku-ring-gai Municipal Council (1973) 1 NSWLR 233, at pp 249-255 ; Victoria v. The Commonwealth (1975) 134 CLR 338 ; Attorney-General (N.S.W.) v. Publishing and Broadcasting Ltd. (1977) 2 NSWLR 813 ; Green v. Daniels (1977) 13 ALR 1 .) (at p515)

40. (4) The question of standing should not have been dealt with as a preliminary issue. Although a trial judge has a discretion when to decide the question of standing, in most cases it has been convenient to get in the facts and determine standing when the merits and relief were considered. Only in Anderson v. The Commonwealth (1932) 47 CLR 50 was standing decided as a preliminary issue. (at p515)

41. The United States and Canadian courts adopt a flexible approach in environmental cases and determine matters on their merits where there are people with a real concern, though not necessarily in any property sense: Baker v. Carr (1962) 369 US 186 (7 Law Ed 2d 663) ; Sierra Club v. Morton (1972) 405 US 727, at pp 731-740(31 Law Ed 2d 636, at pp 640-646) ; United States v. Students Challenging Regulatory Action Procedures (1973) 412 US 669 (37 Law Ed 2d 254) ; Flint Ridge Development Co. v. Scenic Rivers Association (1976) 426 US 776 (49 Law Ed 2d 205) ; Thorson v. Attorney-General (Canada) (No. 2) (1974) 43 DLR (3d) 1 ; Stein v. City of Winnipeg (1974) 48 DLR (3d) 223 ; Nova Scotia Board of Censors v. McNeil (1975) 55 DLR (3d) 632 ; Rosenberg v. Grand River Conservation Authority (1976) 69 DLR (3d) 384 ; Attorney-General (Nova Scotia) v. Bedford Service Commission (1976) 72 DLR (3d) 639 ; Fraser v. Town of New Glasgow (1976) 76 DLR (3d) 79 . For the position in France, see Harding, "Locus Standi in French Administrative Law", (1978) Public Law, p. 144. Gouriet v. Union of Post Office Workers (1978) AC 435 should be treated as an extreme case: the injunction sought might well have been denied as a matter of discretion. Prohibition and certiorari are available to a stranger to the proceedings but the fact that the applicant is a stranger may affect the exercise of the discretion whether to grant the remedy: Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union (1956) 96 CLR 317 ; Reg. v. Watson; Ex parte Australian Workers' Union (1972) 128 CLR 77 . Mandamus is available in circumstances quite divorced from property interest and expectations: see cases listed in Whitmore &Aronson, Review of Administrative Action (1978), pp. 481-484. The same rule as to standing should be adopted for declarations and injunctions. Furthermore, Australian Attorney-Generals are in a different position from their English counterparts when considering whether to grant a fiat to a relator action, particularly when the constitutional validity of common law legislation is in issue. The floodgates argument was answered in Dyson v. Attorney-General (1911) 1 KB 410 and Phelps v. Western Mining Corporation Ltd. (1978) 33 FLR 327; 20 ALR 183 . (at p516)

42. W. F. Ormiston Q.C. (with him M. E. J. Black), for the respondents. The appellant has no standing as it does not possess any relevant private right which has been interfered with nor has any special damage peculiar to the appellant resulted: Boyce v. Paddington Borough Council (1903) 1 Ch 109 : Anderson v. The Commonwealth (1932) 47 CLR 50 ; Crouch v. The Commonwealth (1948) 77 CLR 339 ; Robinson v. Western Australian Museum (1977) 138 CLR 283 . The principles stated in Gouriet v. Union of Post Office Workers (1978) AC 435, at pp 477, 483, 501 should be applied. See also London Passenger Transport Board v. Moscrop (1942) AC 332, at pp 344-345 ; Robinson v. Western Australian Museum (1977) 138 CLR 283 . The claim made by the appellant in respect of its members does not give rise to any relevant interest or special damage: Victorian Chamber of Manufactures v. The Commonwealth (1943) 67 CLR 335, at pp 341-343 ; Victorian Chamber of Manufactures v. The Commonwealth (1943) 67 CLR 413 . No right of the appellant has been affected nor has it suffered harm by reason of the acts of which it complains. The obligations imposed upon the Minister pursuant to the Act and the procedures relate to administrative procedures of government and do not give a right to individuals to bring actions for omissions to do any administrative act unless the right is expressly conferred: Wool Sliping and Scouring Co. Ltd. v. Central Wool Committee (1920) 28 CLR 51, at pp 61, 63, 64 . There is a presumption that in relation to administration of departments of state there is no duty which is capable of giving rise to a correlative right in a person who chooses to take part in the administrative procedures to enforce the observance of those procedures, unless he is a person directly affected by the particular procedures. The duty imposed by s. 8 is limited to Ministers of the Crown to whom mandamus does not ordinarily run: R. v. Arndel (1906) 3 CLR 557 . The procedures give directions to proponents and the Minister. The entitlement to comment does not create a right to see that all of the procedures are carried into effect. The appellant is interested only as a concerned bystander and that does not give it standing. The procedures are unlike those before the Town Planning Appeals Tribunals referred to in National Trust of Australia (Vict.) v. Australian T. &G. Mutual Life Assurance Society Ltd. (1976) VR 592 and those in the Administrative Procedures Act referred to in the Sierra Club v. Morton (1972) 405 US, at p 733 (31 Law Ed 2d, at p 642) . A person who comments occupies a different position from a person who objects to a licensing application or participates in a mining inquiry because it is an administrative procedure and not a judicial or quasi-judicial proceeding. None of the appellant's cases gives the right it seeks. In a number of cases the parties had standing having suffered damage or being directly affected: S.S. Constructions Pty. Ltd. v. Ventura Motors Pty. Ltd. (1964) VR 229 ; Vanderwolf v. Warringah Shire Council (1975) 2 NSWLR 272, at p 274 ; Dajon Investments Pty. Ltd. v. Talbot (1969) VR 603, at p 614 ; Cambridge Credit Corporation Ltd. v. Parkes Development Pty. Ltd. (1974) 2 NSWLR 590 . In National Trust of Australia (Vict.) v. Australian T. &G. Mutual Life Assurance Society Ltd. (1976) VR 592 a right to appear before the planning tribunal was provided. Standing has been refused in a number of cases in Australia: Thompson v. Randwick Municipal Council (1963) 90 CLR 449, at p 458 ; Seamen's Union of Australia v. Utah Development Co. (1978) 144 CLR 120, at p130 . To have standing, a person must have a right, if not of property, akin to property. The right to seek mandamus is different in kind from a right which is capable of being recognized or enforced by declaration or injunction: Sinclair v. Maryborough Mining Warden (1975) 132 CLR 473 ; Reg. v. Bowman (1898) 1 QB 663 . One should be cautious before holding that a right to participate in a procedure gives rise to standing to sue for a declaration or injunction: see Sierra Club v. Morton (1972) 405 US, at p 739 (31 Law Ed 2d, at pp 645-646) . The United States cases are also distinguishable because of the system of responsible government in Australia: Reg. v. Lords Commissioners of the Treasury (1872) LR 7 QB 387 : R. v. Arndel (1906) 3 CLR 557 . Control should be exercised through the parliamentary process and not through the courts. (at p517)

43. G. Griffith, in reply. In cases where the Commonwealth and the executive are to be defendants the court should not be too rigorous in excluding a plaintiff where there is no fear of the federal Attorney-General. The Attorney-General may appear as counsel in cases where he has granted his fiat: Shore v. Wilson (1842) 9 Cl &Fin 355 (8 ER 450) . It is sufficient for the appellant to establish its standing that it seeks to vindicate a right conferred by the Act and the procedures it provides. The Foundation is in the same position as an objector in a town planning case. A distinction cannot be drawn between administrative and quasi-judicial procedures: Twist v. Randwick Municipal Council (1976) 136 CLR 106 . Prohibition or certiorari lies against a Minister of the Crown: R. v. Minister of Health; Ex parte Davis (1929) 1 KB 619 ; Minister of Health v. The King (1931) AC 494 ; R. v. Electricity Commissioners (1924) 1 KB 171 ; see also Judiciary Act, s. 33 (1). The appellant, having submitted its comments, is entitled to standing to ensure that its comments are dealt with in accordance with the administrative procedures. That is sufficient to establish its interest: see Robinson v. Western Australian Museum (1977) 138 CLR 283 ; Anderson v. The Commonwealth (1932) 47 CLR, at p 52 . There is no penalty provision in the Act and, if standing is denied, there would be no procedure to ensure compliance with it.
Cur. adv. vult.

1980, February 13.
The following written judgments were delivered: -
GIBBS J. The appellant, Australian Conservation Foundation Incorporated ("the Foundation"), is the plaintiff in an action brought in this Court against the present respondents - the Commonwealth, three Ministers of State of the Commonwealth, and the Reserve Bank of Australia. The main purpose of the action was to challenge the validity of a decision allegedly made by some of the respondents on or prior to 30th July 1978 to approve of a proposal by Iwasaki Sangyo Company (Australia) Pty. Ltd. ("Iwasaki") to establish and operate a resort and tourist area at Farnborough in central Queensland or, alternatively, to approve exchange control transactions in relation to that proposal. On the application of the respondents, Aickin J. made an order that the statement of claim be struck out and that the action be dismissed. This appeal is brought from his decision. The principal question raised by the appeal is whether the Foundation has locus standi to maintain the action. (at p518)

"The appellant, having been an objector before the warden, had a right to have the hearing of the application conducted, and the warden consider the application and the objections and make his recommendation, according to law. If the application has not been so heard and determined, he is a proper party to seek a mandamus to compel the hearing to be had according to law: Reg. v. Bowman (1898) 1 QB, at p 666 and Reg. v. Cotham (1898) 1 QB 802 ."

Here the appellant contends that the provisions of the legislation which condition the authority of the respondents have been disregarded. If a member of the public has the right to be heard (or to make a submission or to comment in opposition to, or in support of, an administrative decision or proposal), he is entitled to be heard or have his submission or comment dealt with according to legal principles, that is, according to the procedure laid down by law. It is not sensible to deny standing to members of the public to enforce rules under the Act by which Parliament has provided they shall be consulted. (at p557)

11. Even if it is necessary to show that the plaintiff is "more particularly affected than other people" (see Mason J. in Robinson v. Western Australian Museum (1977) 138 CLR 283, at p 327 , here the plaintiff is more particularly affected as it has gone to the trouble of submitting comments. It is entitled to have these dealt with legally, not passed over or dealt with irregularly. (at p557)

12. The respondents raised the "floodgates argument" that the courts will be overwhelmed with litigants if bodies such as the appellant are allowed standing. The references which the appellant submitted show that this has not happened in the United States:
1. "People are not keen to rush to the Courts. It is in their interest to avoid the inconvenience and expense of litigation rather than to commence proceedings on trivial matters." (Zamir, The Declaratory Judgment (1962).)
2. "The apprehension that a congestion of the judicial and administrative processes would result if judicial review were widely available seems to be exaggerated." (Thio, Locus Standi and Judicial Review (1971); see also Schwartz, French Administrative Law and the Common Law World, (1954), at pp. 189-190.) 3. While the floodgates argument may in theory apply, in practice "there are no such horrendous possibilities". (Associated Industries v. Ickes (1943) 134 F 2d 694, at p 707 .) 4. ". . . the figment about floods of litigation if taxpayer suits are allowed is demonstrably false . . . Opening the judicial doors to taxpayers suits does not cause floods: it hardly causes trickles." (Davis, "Standing Taxpayers &Ors", University of Chicago Law Review, vol. 35 (1968), 601, at p. 634.)

5. "A steady progression of cases through the Courts has demonstrated the real contribution of citizen suits to the growth of environment protection, without as some feared, alienating industry or clogging the judicial process." (Haynes, "Michigan's Environment Protection Act in its 6th year: Substantive Environment Law from Citizens Suits", Environment Law Review, vol. 6, (1976) 50-092.)

6. "In contrast to the normal three and a half year wait for trials in most Michigan civil cases, M.E.P.A. cases are quickly brought to trial within six months of filing." (Haynes, "Michigan's Environment Protection Act in its 6th year: Substantive Environment Law from Citizens Suits", Environment Law Review, vol. 6, (1976) 50-092.) (at p558)

13. The Foundation has standing to claim the orders sought. The appeal should be allowed. (at p558)

Orders

Appeal dismissed with costs.