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Llewellyn v Clyde Group Inc

Llewellyn v Clyde Group Inc

Case [2008] TASSC 25 3 June 2008

Judicial Review

Standing

Administrative Law

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[2008] TASSC 25

CITATION: Llewellyn v Clyde Group Inc [2008] TASSC 25

PARTIES:  LLEWELLYN, THE HONOURABLE DAVID
  RIVERS AND WATER SUPPLY COMMISSION, THE
  v
  CLYDE GROUP INCORPORATED

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  851/2007
DELIVERED ON:  3 June 2008
DELIVERED AT:  Hobart
HEARING DATE:  29 February 2008
JUDGMENT OF:  Crawford CJ, Slicer and Tennent JJ

CATCHWORDS:

Administrative Law – Judicial review – Standing to institute proceedings – Generally – To be determined as at time of institution of proceedings – Incorporated association representing irrigators and riparian owners – Not incorporated until after decision being reviewed.

Judicial Review Act2000 (Tas), s17.
Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46 FCR 38; Sharples v O'Shea [1999] QSC 190; Allan v Transurban City Link Ltd (2001) 208 CLR 167; Transurban City Link Ltd v Allan (1999) 168 ALR 687, considered.
Aust Dig Administrative Law [1026]

REPRESENTATION:

Counsel:
             Appellant:  P Turner
             Respondent:  A G Melick SC, M A Ryan
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Jenni Mattila & Co Lawyers

Judgment Number: [2008] TASSC 25
Number of paragraphs: 46

Serial No 25/2008
File No 851/2007

THE HONOURABLE DAVID LLEWELLYN AND THE RIVERS AND WATER SUPPLY COMMISSION v CLYDE GROUP INCORPORATED

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD CJ
  SLICER J
  TENNENT J
  3 June 2008

Order of the Court

Appeal dismissed.

Serial No 25/2008
File No 851/2007

THE HONOURABLE DAVID LLEWELLYN AND THE RIVERS AND WATER SUPPLY COMMISSION v CLYDE GROUP INCORPORATED

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD CJ
  3 June 2008

The question for determination is whether, for the purposes of the Judicial Review Act 2000 ("the Act"), an applicant for review of a decision must have been aggrieved by the decision at the time of its making or whether instead, it is sufficient if the applicant was aggrieved by the decision at the time of the filing of the application to review the decision.

For the purposes of the appeal, the facts are simple. On 17 October 2005, the first appellant, who was the Minister for Primary Industries and Water, made a decision under the Water Management Act 1999, s28, by which he adopted the Lakes Sorell and Crescent Water Management Plan and the River Clyde Water Management Plan. Approximately 17 months later, on 14 March 2007, the respondent was incorporated under the Associations Incorporation Act 1964. It was formed to represent the interests of its members, who were farmers and landholders in the Bothwell district who held irrigation rights under the Irrigation Clauses Act 1973 and who drew water from Lake Crescent and the River Clyde. The members have proprietary and financial interests that are affected by the decision in question, since they depend on water from Lake Crescent and the River Clyde to operate their farms, and for domestic supplies. As individuals, they may qualify as persons aggrieved by the decision.

It is the appellant's case that for a person to be aggrieved by a decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Llewellyn v Clyde Group Inc

Details

AGLC: Llewellyn v Clyde Group Inc [2008] TASSC 25
Case: [2008] TASSC 25
Decision Date: 3 June 2008

CaseChat Overview and Summary

In the case of Llewellyn v Clyde Group Inc, the applicant sought judicial review of a decision made by the Clyde Group Inc, which was not yet incorporated at the time of the decision. The applicant, Llewellyn, claimed to represent irrigators and riparian owners affected by the decision. The primary dispute was whether Llewellyn had standing to institute the judicial review proceedings given that the Clyde Group Inc was not yet incorporated when the decision was made.

The court had to determine whether Llewellyn had standing to bring the proceedings as the Clyde Group Inc was not incorporated until after the decision being reviewed. The key legal issue was whether standing to seek judicial review is assessed as at the time of the decision being reviewed, or as at the time the proceedings are instituted. This required the court to interpret the relevant provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and consider the status of the Clyde Group Inc at the pertinent times.

The court found that standing to seek judicial review must be assessed as at the time of the decision being reviewed, not as at the time the proceedings are instituted. Since the Clyde Group Inc was not incorporated until after the decision, Llewellyn did not have standing to bring the proceedings on behalf of the Clyde Group Inc. The court held that Llewellyn could not represent the interests of the Clyde Group Inc because the association did not exist at the time of the decision. Consequently, the application for judicial review was dismissed.

The court ordered that Llewellyn's application for judicial review be dismissed and that Llewellyn pay the Clyde Group Inc's costs of the proceedings. This decision clarified the requirements for standing in judicial review cases and reinforced the need for associations to be properly constituted at the relevant time to assert rights under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Orders