Ogle v Strickland

Re: WALTER OGLE and ANOR
And: JANET STRICKLAND and ORS
No. G264 of 1986
Judicial Review

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.

CATCHWORDS

Judicial Review - film approved by Censorship Board and registered by Chief Censor said to be blasphemous - applicants for relief two ministers of religion - whether application brought within a reasonable time - whether applicants have standing to sue - appropriateness or otherwise of summary determination of these issues.

Administrative Decisions (Judicial Review) Act 1977, ss. 3, 5 and 11.

Customs (Cinematograph Films) Regulations, regs. 9, 10, 11, 13 and 39.

HEARING

SYDNEY

#DATE 4:8:1986

ORDER

1. The application be dismissed.

2. The applicants pay the first and second respondents the costs of their notice of motion filed on 25 July 1986.

3. The applicants pay the respondents their costs of the application.

JUDGE1

To be dealt with are two notices of motion, one taken out by the first and second respondents seeking an order that the principal application be dismissed, and the other taken out by the applicants seeking an order that the hearing of the principal application be expedited. I propose to deal with the respondents' notice of motion first of all because, if the order sought in it is made, the proceedings will be at an end.

The principal application seeks the review, pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the Act"), of three decisions by the first or second respondents (in one case the decision was made by a Mr. Barton who was acting in the official position of the first respondent) to approve the registration of, and to register, an imported film, "Je vous salue Maria" (Hail Mary).
The decisions were made pursuant to the Customs (Cinematograph) Regulations made under the Customs Act 1901. The regulations provide for a Censorship Board, a Chief Censor and a Deputy Chief Censor. The Chief Censor is the first respondent. The second respondents are the members of the Censorship Board. Regulation 9 provides that the importation of a film is prohibited unless a licence to import the film has been granted under the regulations by the Chief Censor or an officer on his or her behalf. Regulation 10 provides that the grant of a licence under the regulations is subject to the conditions and requirements specified in the regulations and to such conditions and requirements as are specified in the licence. By regulation 11 a film shall not be delivered from the control of the Customs until it has been registered in accordance with the regulations. So far as it is material, regulation 13 of the regulations provides that a film shall not be registered if, in the opinion of the Board, the film is blasphemous.
Part IV of the regulations provides for review of decisions of the Censorship Board by a board known as the Cinematograph Films Board of Review. Regulation 39, which is contained in Part IV, provides that a person aggrieved by a decision of the Censorship Board on a matter arising under the regulations may apply to the Board of Review to review the decision of the Censorship Board. An application for review is to be lodged with the Chairman of the Board of Review within 14 days after the date of the decision of the Censorship Board.
The third respondent is the importer of the film. It appeared by a solicitor, who submitted on its behalf to such order as the Court should make except as to costs.
The applicants are two ministers of religion, the first being a member of the clergy of the Anglican Church in Australia and the second belonging to the clergy of the Roman Catholic Church in Australia. In evidence is an affidavit of the second applicant, Father O'Neill, which, if admitted into evidence at the final hearing and if accepted as correct, is capable of providing some evidence that the film, which Father O'Neill saw on 2 July 1986, is blasphemous.
The grounds relied upon in support of the respondents' notice of motion were:-

1. The principal application was filed out of time.

2. The application did not disclose a reasonable cause of action.

3. The application was frivolous or vexatious.

The first of these grounds was based on the applicants' alleged failure to comply with s. 11 of the Act which provides, inter alia, for the time within which an application for review may be made to the Court. The second was based on Order 11, rule 16 of the Court's rules which provides that, where a pleading discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out. The third ground was based on Order 20, rule 2 of the rules. It provides, so far as material, that, where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding, no reasonable cause of action is disclosed or the proceeding is frivolous or vexatious, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
Both the second and third grounds were relied upon for the same purpose, namely to challenge the applicants' standing to maintain the principal application. I am satisfied, as I indicated during the argument, that the respondents' reliance on Order 11, rule 16, was misconceived because there are no pleadings in this case. The term "pleading" is defined in Order 1, rule 4, so as not to include an application. In my opinion that excludes all applications, including a principal application such as that in question here, from the operation of Order 11. I would not have felt it necessary to deal with this matter were it not for the strong reliance placed by senior counsel for the respondents on the applicability of Order 11, rule 16 to the circumstances of this case. But I feel it necessary to add to what I have said that the scheme of the rules is such as to provide for the manner in which applications to this Court are brought in Order 4 and to deal with pleadings in Order 11. Traditionally, pleadings are written statements setting forth in a summary form the material facts on which each party relies in support of his claim or defence. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them, without embarking at that stage on the evidence which each party may adduce at the trial; see Bullen & Leake and Jacob's Precedents of Pleadings, 12th Ed., p. 3. It is clear to me that the scheme of the rules of this Court is such as to adopt that traditional approach. However, the matter is of absolutely no importance in the resolution of this matter because the same ground as is relied upon under Order 11, rule 16 is available under Order 20, rule 2.
Although the authorities which guide the Court in the exercise of its jurisdiction under the rule are well known, I think it desirable, because of the way in which the argument proceeded, to make some reference to them. The principles are conveniently stated in the judgment of Barwick C.J. in General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125. His Honour there said (p. 129):-

"It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.

........ ........ ........ ........ ........ ........ .

... although the material available to the court in either type of case (i.e. a case brought under a rule similar to the rule in question here or a case brought under the court's inherent jurisdiction) may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 where he said (p. 91): 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.'"

Counsel were agreed that I should approach the question of the applicants' standing to sue in accordance with these principles. They were not agreed that I should approach the question of whether or not the application had been brought within time in this way. Counsel for the applicants submitted that the same principles applied; counsel for the respondents submitted that they did not.
I have decided that the most convenient way of dealing with the respondents' notice of motion is to deal first of all with the question of whether the first ground relied upon, namely that the applicants were out of time, should be upheld. Sub-section 11(1) of the Act provides that an application to the Court for an order to review shall be lodged "within the prescribed period or within such further time as the Court (whether before or after the expiration of the prescribed period allows)". It would seem that, whilst a period has been prescribed for some cases, there has not been a period prescribed for all cases. In many, if not the majority, the period will be a period of 28 days after one or other of the events specified in sub-section 11(3). But it is common ground that sub-section 11(3) has no application to the circumstances of the present case which is governed by sub-section 11(4). That sub-section, so far as it is material, and sub-section 11(5) are as follows:-

(4) Where-

........ ........ ........ ........ ........ ........

(b) no period is prescribed for the making of an application by a particular person for an order of review in relation to a particular decision,

the Court may-

........ ........ ........ ........ ........ ........

(d) in a case to which paragraph (b) applies - refuse to entertain an application by the person referred to in that paragraph for an order of review in relation to the decision so referred to,

if the Court is of the opinion that the application was not made within a reasonable time after the decision was made.

(5) In forming an opinion for the purposes of sub-section (4), the Court shall have regard to-

(a) the time when the applicant became aware of the making of the decision; and

(b) in a case to which paragraph (4) (b) applies - the period or periods prescribed for the making by another person or other persons of an application or applications for an order or orders of review in relation to the decision,

and may have regard to such other matters as it considers relevant."

It is to be observed that in cases affected by these sub-sections, as this case is, there is no provision enabling an applicant to make an application for an extension of time if his application has not been lodged within a time which he thinks the Court may consider unreasonable. It is also to be observed that the operative words of sub-section 11(4) are "the Court may". In my opinion those words are to be read literally. This is not a case in which the word "may" should be treated as if it meant "shall". Thus the Court has an overriding discretion, even in cases where an application has not been made within a reasonable time, nevertheless to proceed to hear it.
In the absence of any provision in the legislation for an application for an extension of time to be made in a case of this kind, it must follow, in my opinion, that the respondents' motion, insofar as it is based on the ground now being considered, falls to be determined under the provisions of Order 20, rule 2 of the rules. Otherwise it will be for the Court, at the hearing of the principal application, to consider whether the application has been made within a reasonable time and, if not, what the consequences of that conclusion should be. These considerations lead to the conclusion that it is not competent for the Court to consider this ground of the respondents' notice of motion except on the principles propounded in the General Steel case earlier referred to.
Of course it would be possible in a given case for the Court to formulate as a separate issue the question of whether or not the application had been made within a reasonable time. This may be a desirable course in some cases because it may lead to the saving of expense and time. But unless that is done, the only way that a threshold point, such as is here raised, can be dealt with is pursuant to Order 20, rule 2. The very fact that the Court has a discretion to allow the application to proceed, notwithstanding that it may not have been made within a reasonable time, would disincline one from acceding to an application founded on that rule. Unless one were satisfied that the whole of the relevant evidence and circumstances were before the Court, the dangers of acting precipitately would dissuade one from such an arbitrary course.
During the course of the argument a number of circumstances were referred to by both counsel relevant to the question of whether or not this application had been lodged within a reasonable time. These included the date of the last of the decisions complained of, 17 April 1986, the evidence of Father O'Neill that he had learnt of the decision to approve the film about the middle of May 1986, the inference that I think should be drawn, in the absence of evidence from Father Ogle, that he had knowledge of the decision at about the same time, the fact that the film was not exhibited publicly until 2 June 1986, the circumstance that the solicitors for the applicants had applied to the Attorney-General for his fiat in order to commence a relator action some time in May 1986 and that that application had been declined by letter dated 5 June 1986, the fact that Father O'Neill had not seen the film until 2 July 1986, the filing of the application in this Court on 4 July 1986, precisely 28 days after the film was first on public exhibition, and the fact that there was no evidence of prejudice to any respondent including the importer.
There is also to be taken into account the provisions of sub-section 11(5) which, so far as they are material, require the Court to take into account the period or periods prescribed for the making by another person or other persons of an application or applications for an order or orders of review in relation to the decision. The only other person to be considered in the present case is the importer who is the third respondent. The fact that it has submitted to such order as the Court sees fit to make, does not mean that it is not relevant to take into account the period prescribed for the making of an application for review by it. Plainly sub-section 11(3) would have operated in its case. Furthermore, although the section does not require it, a material factor may also be the time provided for in the regulations within which the third respondent might have sought a review by the Review Board if it had been dissatisfied with the decision. Although I have taken these matters into account in a general way, I do not believe they should be accorded substantial weight because the third respondent was a party to the proceedings before the Board and would have been a party to any proceedings before the Board of Review. The applicants, on the other hand, were not parties to the proceedings nor did they take, or attempt to take, any part in them.
Having weighed these various considerations I have reached the conclusion that one could not be satisfied positively that the application had not been made within a reasonable time. Indeed, without expressing a final opinion, I incline to the view, because of the absence of any evidence of prejudice to any respondent and the fact that the film was not shown publicly until 2 June 1986, that the application has been brought within a reasonable time. However, I do not decide the matter finally. All I am prepared to say is that the material before me does not persuade me that this is a case in which I should exercise the summary jurisdiction for which Order 20, rule 2 provides. I am strengthened in that view by a matter earlier mentioned, namely, that the Court has a discretion, even where the application is not lodged within a reasonable time, nevertheless to proceed to hear it.
I come then to the question of standing. From time to time warnings have been sounded about the dangers of deciding an issue relating to standing in a summary way. One of the most recent of these was that given by Gibbs C.J. in Onus v. Alcoa of Australia Limited (1981) 149 CLR 27. His Honour said (p. 38):-

"It is unfortunate that the question of the appellants' standing was determined as a preliminary issue in the present case, particularly on such scanty material. To say that is of course no criticism of the learned primary judge who had to deal with Alcoa's application. The question whether a plaintiff has standing to bring an action is one that logically arises before the question whether he is entitled to succeed in the action. However, as I pointed out in Robinson v. Western Australian Museum (1977) 138 CLR 283, at p 302, the court has a discretion whether or not it should determine the question whether the plaintiff has a sufficient interest to bring the proceedings before it proceeds to determine the merits of the case".

What Gibbs C.J. said in Robinson's case is also of relevance but I do not repeat it here. To a similar effect is what Ellicott J. said in Tooheys Limited v. Minister for Business and Consumer Affairs (1981) 36 ALR 64 at p 79:-

"The question whether an applicant is a person aggrieved is one of mixed law and fact and in many cases would be best determined at a final hearing when all the facts are before the court and the court has the benefit of a full argument on the matter".

Nevertheless, there are cases, as what Gibbs C.J. said in Robinson's case (supra) demonstrates, where an issue of this kind can be satisfactorily determined under a rule similar to that upon which the respondents rely in this case. Such a case was Australian Conservation Foundation Incorporated v. The Commonwealth of Australia (1980) 146 CLR 493; see the judgment of Mason J. at p 552.

The starting point for the determination of the question of whether a party has standing to maintain an application for judicial review under the Act is found in the opening words of sub-section 5(1), "A person who is aggrieved by a decision to which this Act applies ..." A guide to the meaning of the expression, "a person aggrieved" is provided by sub-section 3(4) which, so far as is material, states that a reference to a person aggrieved by a decision includes a reference to a person whose interests are adversely affected by the decision. The definition is not an exhaustive one.
The question has been the subject of some consideration by judges of this Court. In Toohey's case (supra) Ellicott J. said (p. 79):-

"The words 'a person who is aggrieved' should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public".

Toohey's case went on appeal (42 A.L.R. 260) but nothing in the judgments on appeal is of relevance to this question.

The matter was also discussed by the Full Court of this Court in Ricegrowers Co-operative Mills Limited v. Bannerman (1981) 38 ALR 535 where Bowen C.J. and Franki J. said in relation to the words "a person who is aggrieved" ( pp 539-40):-

"In our view they cover a person who can show a grievance which will be suffered as a result of a decision beyond that of an ordinary member of the public ..."

What Ellicott J. had said in Toohey's case was there approved.

The High Court when dealing with applications for declarations of right by persons claiming to be affected by particular Government action has adopted a similar approach. In the Conservation Foundation case Gibbs J. (as he was) said (p. 526):-

"It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so".

His Honour supported his statement of the applicable principle by reference to a number of English authorities including Gouriet v. Union of Post Office Workers (1978) AC 435 and the earlier case of Boyce v. Paddington Borough Council (1903) Ch 109. Later Gibbs J. said (pp. 530-531):-

"A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it".

Stephen J. said (p. 539):-

"For it (the Conservation Foundation) to succeed upon this particular ground the law must be that any person with genuinely held convictions upon a topic of public concern thereby acquires standing to enforce a public right to breach of which it takes exception. That is not the current state of the law. To hold otherwise would be radically to alter the existing law as it now stands".

To the same effect is the judgment of Mason J. at pp. 547-8 and 552 and the judgment of Aickin J., which was the judgment appealed from, at pp. 505-6.

In the Onus case persons who claimed to be descendents and members of a particular Aboriginal people and custodians of the relics of those people were held to have standing to commence an action to restrain the defendant from contravening s. 21 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic.). The Conservation Foundation case was distinguished. I do not find it necessary to cite many passages from the judgments. It is sufficient to refer to the judgments of Gibbs C.J. at pp. 36-7, Stephen J. at pp. 41-42, Mason J. at p. 43, Murphy J. at p. 46, Aickin J. at pp. 49, 50 and 56-57 and Wilson J. at pp. 60, 61, 62-3, 73, 74-75 and 76. However, I do cite one passage from the judgment of Stephen J. in which he pointed up the distinction between the Conservation Foundation case and the Onus case. His Honour said (p. 42):-

"As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter. The present appellants are members of a small community of aboriginal people very long associated with the Portland area; the endangered relics are relics of their ancestors' occupation of that area and possess for their community great cultural and spiritual significance. While Europeans may have cultural difficulty in fully comprehending that significance, the importance of the relics to the appellants and their intimate relationship to the relics readily finds curial acceptance. It is to be distinguished, I think, and will be perceived by courts as different in degree, both in terms of weight and, in particular, in terms of proximity, from that concern which a body of conservationists, however sincere, feels for the environment and its protection. Courts necessarily reflect community values and beliefs, according greater weight to, and perceiving a closer proximity to a plaintiff in the case of, some subject matters than others. The outcome of doing so, however rationalized, will, when no tangible proprietary or possessory rights are in question, tend to be determinative of whether or not such a special interest exists as will be found standing to sue".

Although there needs to be a degree of caution exercised in applying to applications under the Act authorities decided under the general law, it would seem to me that the general law authorities are of relevance in the interpretation of the words, "a person aggrieved" in the Act, simply because the Act was intended to provide a more streamlined alternative for judicial review of administrative action in the Commonwealth field. If it had been intended to affect the long established approach of the courts to this problem, one would have expected appropriate language to indicate clearly that this was the legislature's intention. There is, in my opinion, no such language used. Furthermore, the tests propounded by the judges of this Court in the decisions earlier cited do not suggest that the position is very different from what it is under the general law. I should therefore regard the decisions of the High Court to which I have referred, and the English cases upon which they are based, as indicative of the approach to the problem which the Court should adopt.
In their application the applicants state that they are aggrieved by the decisions, review of which is sought, because:-

"1. Each of them is a minister of religion charged with the

duty of teaching and fostering of Christian beliefs according to the Scriptures.

2. The film is blasphemous.

3. The First and Second Respondents have by the decisions

referred to allowed and permitted the Third Respondent to import the film into Australia and to show it in theatres to persons other than minors."

Counsel for the respondents agreed, for the purpose of dealing with the notice of motion to dismiss the proceedings, that these facts might be assumed to be correct. I make it clear that she did not in fact admit them. Rather she said that they could be accepted as correct for the purposes of the instant application but not otherwise.
During the course of the argument I discussed with counsel the question of whether it would not be preferable to separate out a question as to the standing of the applicants to sue and to try this as a separate threshold question pursuant to the provisions of Order 29, rule 2 of the Rules. If that course had been adopted, the determination of the issue would not have been encumbered and complicated by the underlying consideration that it ought not to be determined adversely to the applicants unless I thought that the applicants' position was "so obviously untenable that it cannot possibly succeed" or "so manifestly faulty that it does not admit of argument", to use just two of the phrases from those taken by Barwick C.J. from earlier authorities in the passage earlier cited from his judgment in the General Steel case. Counsel for the applicants was prepared to adopt the suggested course, but counsel for the respondents was not.
I have given some consideration as to whether I should make a direction that a question as to the standing of the applicants to sue be tried separately but, on reflection, have decided not to take that course. In those circumstances it is important that I bear in mind that for the respondents to succeed they need to demonstrate that on no basis can it be held that ministers of religion have a sufficient interest to maintain that a film which they claim to be blasphemous should not have been approved and registered by the respondents.
In passing I should make it clear that the applicants do not bring these proceedings as an appeal from the merits of the decision of the Censorship Board and the Chief Censor. Amongst other things they seek to say that relevant considerations were left out of account and that no person acting reasonably could have reached the decision reached by the Board and the Censor if they had properly directed themselves as to the applicable law. In other words they rely on conventional judicial review grounds. There was no submission that their case was otherwise based.
In the submission of counsel for the respondents, the applicants were in no different position from the Conservation Foundation and its members in the Conservation Foundation case. It was accepted that the Churches and their Ministers would have had an obligation to uphold the Scriptures and Christian teaching and philosophy. But it was submitted that, even if the corporate bodies of the Churches themselves had been applicants, they, like the Conservation Foundation, would have had had no relevant special interest to uphold in a court of law.
The contrary argument was that the film had desecrated fundamental Christian beliefs and teaching and that ministers of religion had a special interest, and thus a greater interest than an ordinary member of the community, in preventing such a film being shown if it was unlawful under the relevant regulations to allow its importation. Counsel for the applicants claimed that this case was covered, not by the Conservation Foundation case, but by the Onus case. There the relics which were the subject of the plaintiffs' concern were physical objects likely to be interfered with by the defendant's threatened conduct. That conduct, if engaged in, would be unlawful under the statute in question in that case. Here no physical objects were involved, but the regulations made it unlawful for the Board and the Censor to approve and register a film which, in the opinion of the Board, was blasphemous. If, as would be submitted if the application went to a final hearing, no reasonable person could hold the opinion that the film was other than blasphemous, the case should be seen as one in which the applicants sought to prevent the screening of a film which, being blasphemous, struck at the roots of the Christian faith which the applicants had a special obligation to uphold. Thus the film was as much a desecration of matters sacred to Christians as the interference with the relics in question in the Onus case would have involved the desecration of objects sacred to the Aborigines.
I think it is a mistake to endeavour to tie the facts of this case to any other, whether the Conservation Foundation case, the Onus case or any of the many other cases to which reference could be made. The earlier cases, particularly the two recent decisions of the High Court, provide valuable guidance as to the principles to be applied in cases such as this. But once those principles are understood, the task is to apply them to the case in hand. Perceptions of factual similarities with other cases are rarely of assistance and may lead a court into error.
In the passage from his judgment in the Onus case earlier cited, Stephen J. said that the absence of any question affecting tangible proprietary or possessory rights tended to be determinative of a party's standing to sue. This statement ought not to be read as necessarily excluding standing in any case where interests of the kind referred to by Stephen J. were not involved, but in the absence of the involvement of any such interests it may be difficult to persuade a court that standing should be recognized. Elsewhere Stephen J. makes it clear that it may be difficult rationally or logically to say why standing has been recognized in some cases but not in others. An element of judgment must be involved in determining whether, in a given case, an applicant for relief has a grievance beyond that of an ordinary member of the public. See the Ricegrowers' case earlier cited.
Having considered the facts of this matter as they were assumed to be for the purposes of the argument, I have reached the clear conclusion that this case is not one in which the standing of the applicants to sue should be recognized. Notwithstanding their special position as ministers of religion, I do not think that they stand in any different position from countless other members of the community who, with varying degrees of commitment, profess the Christian faith. That circumstance, coupled with the absence of any threat to any proprietary or possessory interest, persuades me that there is no conclusion open other than that standing to sue should be denied.
In the course of his submissions, counsel for the applicants referred to a passage from the Gospel according to St. Matthew (Chapter 16, verse 18) in which Christ says, in relation to Peter, "Upon this rock I will build my church". Counsel said that this passage tended to show that ministers of religion, as distinct from lay members of the Church, were in a special position and thus had an interest in maintaining the sanctity of the Scriptures beyond that of an ordinary member of the public. Counsel also said that, if the matter were fully heard, the only additional material upon which he would seek to rely would be further passages from the New Testament also showing the special position of ministers of religion. I do not consider that the question of whether ministers of religion are given a special place in the exposition of Christian doctrine and teaching is of assistance in resolving the mixed question of fact and law of whether they have standing to sue in a case such as this. If, within the teaching of any particular denomination of the Christian faith, they do have such a special position, it would not, in my opinion, overcome the legal problems which the authorities to which I have referred show the applicants to have. Many people in the community have a concern about the screening of a blasphemous film. But that concern, in whatever depth and however genuinely and sincerely it may be felt, does not permit such a person to resort to the Court.
The policy of the legislation, as disclosed in the regulations, is to entrust the question of censorship of films to the first and second respondents. No provision is made for any appeal or objection by members of the public. If a member of the public feels injured by what he or she sees as a breach of the law administered by the respondents, his only remedy is a relator action by the Attorney-General for which he needs the Attorney-General's fiat.
I would have preferred to deal with the question of standing, not pursuant to an application based on Order 20, rule 2, but as a separate question determined as a matter of substance rather than in a summary way; cf. Yango Pastoral Co. Pty Limited v. First Chicago Australia Limited (1978) 139 CLR 410 at pp 419-420 and TVW Enterprises Limited v. Duffy (1985) 62 ALR 63 at p 68. But, if this course had been taken, I am satisfied that the result would have been the same. No additional evidence which might have been led by either party would have changed the essential facts. In those circumstances, the most economical course, from the point of view of expense to the parties and the time of the Court, is to bring the proceedings to an end now.
I order that the application be dismissed. The applicants are to pay the respondents' costs of the notice of motion and of the application itself.

[1986] FCA 325

04 AUGUST 1986