Burston v Cosh

[2000] NSWADT 91

CITATION:	Burston -v- Cosh & ors [2000] NSWADT 91
DIVISION:	General Division
PARTIES:	APPLICANT Brian Burston RESPONDENTS Claire Cosh Catherine Parsons Jeff Maybury State Electoral Commissioner
FILE NUMBER:	993282; 003006; 003007
HEARING DATES:
SUBMISSIONS CLOSED:	06/15/2000
DATE OF DECISION:	07/07/2000
BEFORE:	Britton A - Judicial Member; Lees M - Judicial Member; Antonios Z - Member
APPLICATION:	Persons whose interests are affected by a decision
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Local Government Act 1993
CASES CITED:	Control Investments Pty Limited v Australian Broadcasting Tribunal (1980) 50 FLR Re McHattan and Collector of Customs (NSW) (1978)18 ALR 154 Alphapharm v SmithKline Beecham (1994) 121 ALR 373 US Tobacco Co v. Minister for Consumer Affairs (1988) 20 FCR 520 Sinclair v. Mining Warden at Maryborough (1975) Onus v. Alcoa (1981) Ogle v. Strickland (1987) 13 FCR 306 Telecasters North Queensland Limited v. Australian Broadcasting Tribunal (1988) 82 ALR 90 Australian Conservation Foundation v. Minister for Resources (1989) 19 ALD 70 Cameron v. Human Rights and Equal Opportunity Commission (1993) 119 ALR 279 Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd (1982) AC 617 Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67 Australian Foreman Stevedores' Association v. Crone (1988) 20 FCR 377 Association of Data Processing Service Organisations v. Camp 397 US 150 (1970) Barlow v. Collins 397 US 159 (1970) Kioa v. West (1985) Bray v. Faber (1978) 1 NSWLR 335 R. v. Hendon Rural District Council; ex parte Chorley (1933) 2 KB 696 R. v. Richmond Confirming Authority; Ex parte Howitt (1921) 1 KB 248 Lucas v Pascale [2000] NSWADT 23
REPRESENTATION:
ORDERS:	1. The decision to join the Electoral Commissioner as a party to these proceedings is affirmed.

1 The applicant, Mr Burston an unsuccessful candidate for an election to the City of Cessnock Local Council, has applied to the Tribunal under s 329 of the Local Government Act 1993 (the Act) for orders that Ms Cosh, Ms Parsons and Mr Maybury be dismissed as civic officers from Cessnock City Council. Mr Burston submits that Ms Cosh, Ms Parsons and Mr Maybury should be dismissed from office because of an alleged irregularity in the manner in which they were elected.

2 This is a decision on the papers pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act) concerning the preliminary issue of whether the Electoral Commissioner should remain a respondent in these proceedings.

3 At the first directions hearing in relation to these matters, on 2 February 2000, the Electoral Commissioner applied to be joined as a party in these proceedings. No objection was raised by the other parties. An order was made to that effect.

4 On 11 April 2000 President Judge O’Connor made various directions which include :

Within seven days thereafter the Tribunal to consider the question of who the proper respondents or respondents to the proceedings are and to invite submissions as necessary from the parties and also to invite the State Electoral Commissioner to furnish submissions on this point. Note that the State Electoral Commissioner will remain respondent to the matters for the time being.

5 By letter dated 29 May 2000, the Tribunal invited all parties to furnish submissions on this point.

6 Ms Cosh in a submission to the Tribunal filed on 15 June 2000, submits that Electoral Commissioner should remain a respondent in this matter. No submissions were received from the applicant, Ms Parsons or Mr Maybury. The Electoral Commissioner filed written submissions on 9 June 2000.

7 An application under s329 of the Act is an application for an original decision. Section 67 of the ADT Act provides:

(1) The parties to proceedings before the Tribunal for an original decision are:
(a) any person who, being entitled to do so, has duly applied to the Tribunal for an original decision, and
(a1) if an order or other decision is sought from the Tribunal in respect of a person (other than the applicant) the person in respect of whom the order or other decision is sought, and
(b) if the Attorney General intervenes in the proceedings under section 69 the Attorney General, and
(c) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), and
(d) any person specified by or under any enactment as a party to the proceedings.
…..
(4) The Tribunal may, by order, make a person who is not a party to proceedings for an original decision or review of a reviewable decision a party to the proceedings, either of its own motion or on the written application of the person, if it is satisfied that the interests of the person are likely to be affected by the original decision (or are affected by the reviewable decision).

8 It is not disputed that Ms Cosh, Ms Parsons and Mr Maybury are the proper respondents in these proceedings, being persons falling within the scope of s.67(1)(a1) of the ADT Act: ‘person[s] in respect of whom the order or other decision is sought’.

9 Sub-section 67(4) of the ADT Act confers a discretion on the Tribunal to make a person a party to proceedings where it is satisfied that that the interests of the person are likely to be affected by the original decision. The issue for the Tribunal to determine is whether the Electoral Commissioner is a person whose interests are likely to be effected by the decision in these proceedings.

10 Sub section 30(1A) of the Administrative Appeals Tribunal Act (Cth) (the AAT Act) is the Commonwealth counterpart to the ADT Act’s joinder provision. Narrower in scope than ss67(4) of the ADT Act, ss30(1A) provides that where an application has been made for review of a decision ‘any other persons whose interests are to be effected by the decision’ may apply to be made a party. The AAT provision has been the subject of extensive judicial review and provides useful guidance to this Tribunal in determining the approach to take in the application of s67(4).

11 In Control Investments Pty Limited v Australian Broadcasting Tribunal (1980) 50 FLR 1 Davies J said (at 8), in relation to the meaning of the words ‘interests are affected’:

[T]he words “interests are affected” denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that particular type of conduct should be presented or a particular law observed. The interests affected need not be legal interest. However a person seeking joinder must be able to identify a relevant interest which is his....Sections 27 (1) and 30(1) do require that the applicant demonstrates affection of an interest which attaches to him. The nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review.

12 In that decision Davies J cited with approval the following dicta of Brennan J in ReMcHattan and Collector of Customs (NSW) (1978)18 ALR 154 at 157: ‘The relevant interests do not have to be pecuniary interests or even specific legal rights.’

13 In Alphapharm v SmithKline Beecham (1994) 121 ALR 373, the Full Court of the Federal Court considered the meaning of “persons whose interests are affected” in the context of s.60(2) of the Therapeutic Goods Act (Cth) 1989. This was an appeal from a decision of the trial judge, and the issue in the appeal was whether or not the respondent companies had a relevant interest in a decision made by the Minister. (The Minister also appealed on another ground.) At 382-4 Davies J outlined the principles to be applied:

The general principles covering standing, including the phrase "interests are affected", have been considered in numerous cases, many of which were referred to by a Full Court of this Court in US Tobacco Co v. Minister for Consumer Affairs (1988) 20 FCR 520 at 526-530. The person whose interests are affected must have an interest other than that which attaches to members of the general public and other than that of a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The adjectives "real", "genuine" and "direct" have been used to describe the relationship required. The term "interests are affected" does not make use of an adjective, but it requires that the applicant demonstrate genuine affection of an interest which attaches to him.

Indeed, in recent years, most attention has been given to those circumstances in which persons without any proprietary or commercial or tangible interest have, nevertheless, been thought to have standing to take part in the administrative process or in legal proceedings. See eg. Sinclair v. Mining Warden at Maryborough (1975); Australian Conservation Foundation; Onus v. Alcoa (1981); Ogle v. Strickland (1987) 13 FCR 306; the US Tobacco case; Telecasters North Queensland Limited v. Australian Broadcasting Tribunal (1988) 82 ALR 90; Australian Conservation Foundation v. Minister for Resources (1989) 19 ALD 70 and Cameron v. Human Rights and Equal Opportunity Commission (1993) 119 ALR 279.

The question can be complex and this has led some judges to discourage parties from taking a point as to locus standi as a preliminary issue. See eg. the remarks of Lord Scarman in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd (1982) AC 617 at 649. In the same case at 630, Lord Wilberforce pointed out that, in some cases, the question of sufficient interest cannot be considered in the abstract or as an isolated point; it must be taken together with the legal and factual context.

One relevant factor is the extent of the affection of the person's interests. In Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67 at 70, Brennan J pointed out that, "Across the pool of sundry interest, the ripples of affection may widely extend." But his Honour did not propose that any ripple of affection would be sufficient to support an interest. In McHattan's Case, Brennan J dismissed the application, there being no interests of Mr McHattan which were immediately and directly affected. His Honour rejected the view that the challenged decision might have affected Mr McHattan's reputation, holding that the challenged decision would affect reputation only "in a most tenuous way". In Australian Foreman Stevedores' Association v. Crone (1988) 20 FCR 377, Pincus J said at 382:- "A decision favourable to one citizen may affect many others: some directly, and some more remotely. There is a point, which must be fixed as a matter of judgment in each case, beyond which the Court must hold that the interests of those affected are too indirectly affected to be recognised." His Honour rejected the application on the ground that the decisions sought to be attacked were not shown to affect any of the applicants' interests significantly, nor would success in the litigation be likely to give them a benefit or advantage of any consequence.

It appears from K.C. Davis' Administrative Law Treatise 2nd Ed., 1983, para 24:17 that the extent of the affection may be the true guide for standing in judicial review proceedings in the United States. Davis tends to reject a test based on "the zone of interests to be protected or regulated by the statute", a test which was enunciated in Association of Data Processing Service Organisations v. Camp 397 US 150 (1970) and Barlow v. Collins 397 US 159 (1970). However, such a test may be relevant under the law of the United Kingdom and of this country. In US Tobacco at 529, the Court said:- "The nature of the interest required in a particular case will be influenced by the subject matter and content of the decision under review." This must be so with respect to the phrase "interests are affected", when used in a statute which provides for the administrative review of an administrative decision. In such event, the review, which forms part of the process of administrative decision-making, is provided to promote the achievement of the objects of the statute. The term "aggrieved", when used in the context of judicial review, may have a different connotation, for the object of judicial review is to ensure that the law is observed.

The question of standing is, indeed, related to issues of procedural fairness. If a person has interests which ought to be taken into account in the making of a decision, then ordinarily that person should be entitled to be heard. Mason CJ expressed the principle of natural justice in these terms in Kioa v. West (1985) at 584:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. ... Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision: '... which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a "policy" or "political" decision and is not subject to judicial review.' (Salemi (No.2) (1977) 137 CLR, at p.452, per Jacobs J.).

Thus, in cases such as Bray v. Faber (1978) 1 NSWLR 335, it has been held that, when a person did not have a right to be heard during the decision-making process, so also the person did not have a right to seek a declaration that the decision was void. On the other hand, in cases such as R. v. Hendon Rural District Council; ex parte Chorley (1933) 2 KB 696; R. v. Richmond Confirming Authority; Ex parte Howitt (1921) 1 KB 248, where the person had a right to be heard in the making of the decision, it was held that that person had a right if aggrieved by the decision to seek judicial review of it.

14 Gummow J (at 395-6) also emphasised the importance of determining the question by reference to the scope and purpose of the Act in question:

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. It is vital to approach the issues on the present appeal upon a review of the scope and purpose of the Act.

15 It is clear from the authorities that the term ‘interests are affected’ has been broadly defined and does not exclude a person who cannot demonstrate a pecuniary or legal interest in the outcome of the proceedings. It is enough that the person can identify a relevant interest, that is not too remote or indirectly effected.

16 The scope of ss67(4) of the ADT Act was considered by Deputy President Hennessy in the recent decision of Lucas v Pascale [2000] NSWADT 23. In that decision Deputy President Hennessy said at [14] said ‘the mere fact that proceedings will involve issues which relate to the functions of the Electoral Commissioner does not mean that he or she has any legal or other interests which are likely to be affected’. This decision has subsequently been set aside: Appeal Panel file no: 009012. The Appeal Panel did not address the issue of whether the Electoral Commissioner should be made a party in those proceedings.

17 Section 21A(1)(a) of the Parliamentary Electorate and Elections Act 1912 provides that ‘The Governor shall appoint an Electoral Commissioner for New South Wales’. Section 21A of that Act provides that the Electoral Commissioner is responsible for administering that Act and the provisions of any other Act relating to the registration and enrolment of voters and the conduct of elections.

18 The role of the Electoral Commissioner is set out in the Act and the Local Government (Elections) Regulation 1998 (the Regulation). The Electoral Commissioner is to conduct Local Government elections other than elections for a mayor or deputy mayor: s296(1).

19 These proceedings involve a consideration amongst other things of the manner in which the Electoral Commissioner administered the Act and exercised his functions in relation to the recent Cessnock City Council elections. More particularly, the applicant’s complaints raise an issue concerning the appointment of the returning officer, implying that there was either a reasonable apprehension of bias, or actual bias, on the part of the returning officer. Secondly, the complainant alleges, in effect, that the Commissioner breached his duty under the Regulations by failing to require compliance with the provisions of the Act regarding electoral advertising.

20 A finding in favour of the applicant regarding these allegations could, in our opinion, have an adverse effect on public confidence in and the reputations of the Commissioner and the returning officer. Both have interests which are “likely to be affected” by the conduct and outcome of the proceedings.

21 While noting the decision of Deputy President Hennessy in Lucas v Pascale, which involves different issues than those arising in these proceedings, we are persuaded that in this case the Electoral Commissioner has a relevant interest and is a person whose ‘interests are likely to be affected’.

22 Accordingly we order that the Electoral Commissioner is to remain a respondent in these proceedings.