Peter Allan v Development Allowance Authority

[1997] FCA 738

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - test for standing - standing to challenge decision of the Development Allowance Authority - look to Statute conferring power to determine if applicant has standing - meaning of "special interest" in context of legislation - application dismissed.

Administrative Appeals Tribunal Act 1975
Development Authority Act 1992, Chapters 3 and 4
Melbourne City Link Act 1995

Nolan v Development Allowance Authority (Federal Court, Goldberg J, 4 February 1997, unreported), considered and followed
Boyce v Paddington Borough Council [1903] 1 Ch 109, considered
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493, considered
Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Limited (1994) 49 FCR 250, considered and applied
Robinson v Western Australian Museum (1977) 138 CLR 283, considered and applied
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124, considered
United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520, considered
Re McHattan and Collector of Customs (1977) 18 ALR 154, considered
North Coast Environment Council Inc v Minister for National Resources (No 2) (1994) 55 FCR 492, considered and applied

PETER ALLAN v DEVELOPMENT ALLOWANCE AUTHORITY
VG 736 OF 1996

MANSFIELD J
ADELAIDE (HEARD IN MELBOURNE)
7 AUGUST 1997

GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA   )
  )
VICTORIA DISTRICT REGISTRY  )  VG 736 of 1996
  )
GENERAL DIVISION  )

BETWEEN:  PETER ALLAN
  Applicant

AND:  DEVELOPMENT ALLOWANCE
  AUTHORITY
  Respondent

JUDGE:        MANSFIELD J
PLACE:        ADELAIDE (HEARD IN MELBOURNE)
DATED:        7 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

Note: Settlement and entry of orders is dealt with in order 36 of the Federal Court Rules.

GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA   )
  )
VICTORIA DISTRICT REGISTRY  )  VG 736 of 1996
  )
GENERAL DIVISION  )

BETWEEN:  PETER ALLAN
  Applicant

AND:  DEVELOPMENT ALLOWANCE
  AUTHORITY
  Respondent

JUDGE:        MANSFIELD J
PLACE:        ADELAIDE (HEARD IN MELBOURNE)
DATED:        7 AUGUST 1997

REASONS FOR JUDGMENT

The applicant Peter Allan ("Mr Allan") appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 13 November 1996.

The decision under appeal is a decision that Mr Allan is not a person affected by a reviewable decision of the respondent Development Allowance Authority ("the DAA").  Mr Allan seeks a declaration that he is a person whose interests are affected by a reviewable decision of the DAA, and seeks an order remitting the application for review to the Tribunal for hearing.  It is unclear whether, in the events which have happened, the matter should be referred back to the DAA for a decision on the merits of the initial review application, as the DAA has not at any time considered those merits.

THE LEGISLATION

The Development Allowance Authority Act 1992 ("the DAA Act"), created the DAA as a statutory office by s 94. The DAA is to perform the various duties and to exercise the various powers with which he is charged under the DAA Act. When originally introduced, the DAA Act provided for certain tax concessions for investments in large Australian projects which cost $50 million or more and which met certain other criteria. As initially enacted, the process for that objective was for the DAA to issue a certificate if certain conditions were met which pre-qualified actual or proposed expenditure by an entity, if for the acquisition or construction or lease of plant, for the tax incentive known as the development allowance.

On 16 December 1994, the DAA Act was amended by the Taxation Laws Amendment (Infrastructure Borrowings) Act (No 163 of 1994). It introduced into the DAA Act Chapter 3 (ss 93A-93ZG) dealing with infrastructure borrowings. It was under Chapter 3 of the DAA Act that the decision of the DAA was made which gives rise to this appeal.

The object of Chapter 3 of the DAA Act is to provide tax incentives for genuine private sector investment in publicly accessible infrastructure facilities and related facilities. It operates with the infrastructure borrowings provisions of the Income Tax Assessment Act 1936. Section 93B of the DAA Act sets out a simplified outline of the scheme of Chapter 3, and s 93C sets out an example of how Chapter 3 works. Coincidentally for the purposes of this appeal, that example involves a proposal to construct a tollway, financed in part by a substantial public bond issue.

On the application of a person, the DAA may issue a certificate in relation to a proposed borrowing if it is satisfied that the borrowing is an infrastructure borrowing and that certain other criteria are met. The borrowing will only be an infrastructure borrowing if it is intended to be used for one of the seven kinds of infrastructure facility identified in s 93L of the DAA Act, which include a land transport facility including a road in Australia that is to be used for the transport of the public or their goods at a charge to them. The other kinds of infrastructure facility identified are air transport facility, seaport facility, electricity generation, transmission or distribution facility, gas pipeline facility, water supply facility, and sewage or wastewater facility. The money borrowed must be used in the way proposed. The effect of the certificate is that, upon the borrowing, interest paid to the bond holders is exempt from income tax or rebateable. The interest is not an allowable deduction for the borrower. Of course, the detailed provisions of Chapter 3 of the DAA Act are necessarily quite complex, but for present purposes that provides a sufficient description.

The application for a certificate is made under s 93N, and the certificate is issued by the DAA under s 93O, of the DAA Act. In my view, s 93O is significant. Under it, the DAA is not given any discretion to refuse to issue the certificate once he is satisfied that the proposed borrowing is an infrastructure borrowing and the timetable specified in the application is reasonable, and provided the applicant undertakes to comply with the conditions applying to the certificate under s 93R (in effect, to preserve its status, to maintain proper records, and to comply with the proposal in the application), and provided, in respect of a direct infrastructure borrowing, the DAA is not satisfied that there is in force a law which will prohibit or restrict the operation of other facilities in competition with the infrastructure facilities concerned.

The only other provision in Chapter 3 of the DAA Act which might affect the capacity of the DAA to grant a certificate is s 93Y, which provides for the Commonwealth to limit the intended maximum cost to the Commonwealth for a financial year of the taxation consequences of the issue of certificates. The process is prescribed by regulation fixing that maximum cost, and then by Ministerial direction to the DAA not to accept applications for certificates during a specified period. Again, that process does not generate any discretion in the DAA as to whether or not to grant a certificate once a particular application is received.

The procedural prescriptions relating to applications are contained in s 93X of the DAA Act. Relevantly for present purposes, subss (7)-(9) firstly oblige the DAA, after considering an application, either to grant or refuse it, then to give written notice of the decision to each applicant, and in the event of a refusal of an application the notice of refusal must set out the reasons for the refusal.

The only other express notification obligation is to the Commissioner of Taxation:  s 93ZF.

There is no provision of the Act which requires the DAA to give public notice of the application, or to give persons other than the applicant the opportunity to be heard with respect to an application (I do not need to address the question of the extent, if any, that an applicant is entitled to a hearing before the DAA makes his decision), or to otherwise publicise the decision.

I note also that the DAA's power to seek information or documents with respect to an application is confined to seeking such information or documents from an applicant for a certificate or from a certificate holder:  s 93ZC.  For the sake of completeness, I also note s 93ZG which empowers the DAA, if he considers that any action or inaction of a person or body is likely to have the effect of preventing the DAA from issuing or transferring a certificate, with the consent of the applicant, may notify the person or body accordingly; the focus of that power clearly is to procuring the issuing of a certificate and not to providing a person with the opportunity to object to, or impede, its issue.

Chapter 4 of the DAA Act deals with general matters, including administration matters. Part 5 of Chapter 4 sets out the DAA's reporting obligations. They are to report to the Minister quarterly, or for a specified period if otherwise directed by the Minister, on the operation of the Act during that quarter or period, including information about the number and type of certificates (if any) granted under the DAA Act during that period: ss 115 and 116. He must also provide, after the end of each financial year, a report on the operation of the DAA Act for that year, which must then be laid before each House of the Parliament: s 117. Again other than the tabling of the annual report, no element of notification in any public way even of the general operations of the DAA under the DAA Act is provided for. No doubt the more frequent notification required to be given to the Minister would serve the function of enabling the Minister to monitor the cost to the Commonwealth of the taxation consequences of the issue of certificates so as to determine whether to give a direction under s 93Y of the DAA Act.

That legislative context is important, in my view, to resolution of the present issue. The applicant claims to be entitled to apply for review of the particular decision referred to below under s 119 of the DAA Act. It provides:

"(1)A person who is affected by a reviewable decision may, if dissatisfied with the decision, by notice given to the DAA within:

(a)the period of 21 days after the day on which the decision first comes to the attention of the person; or

(b)such further period as the DAA allows;

request the DAA to reconsider the decision.

(2)The reasons for making the request must be set out in the request.

(3)Upon receipt of the request, the DAA must reconsider the decision and may, subject to subsection (4), confirm or revoke the decision or vary the decision in such manner as the DAA thinks fit.

(4)If the DAA does not confirm, revoke or vary a decision before the end of the period of 40 days after the day on which the DAA received the request under subsection (1) to reconsider the decision, the DAA is taken, at the end of that period, to have confirmed the decision under subsection (3).

(5)If the DAA confirms, revokes or varies a decision before the end of the period referred to in subsection (4), the DAA must, by notice given to the applicant, inform the applicant of the result of the reconsideration of the decision and the reasons for confirming, revoking or varying the decision, as the case may be."

It is to be noted that, upon a request for review of a decision, the DAA must reconsider the decision, and may confirm or revoke or vary it in such manner as the DAA thinks fit. Section 119 can be invoked only if:

• the decision complained of is a reviewable decision, and

• the applicant for review is a person "who is affected by" the decision.

For reasons which appear below, I think it is noteworthy that the right of a person affected by the decision to seek review must be exercised within twenty one days after the day on which the decision first comes to the attention of the person.  It is also noteworthy for the same reasons that any decision of the DAA upon review must be notified, but under subs (5), only to the applicant, and reasons given for the decision.  Again there is no provision for notice to be given to other persons or entities, or for any public notice to be given whether by gazettal or otherwise.

If the DAA revokes a decision under the DAA Act, relevantly a decision to issue a certificate under s 93O of the DAA Act, no further right of review of that decision on its merits is available. Application for review by the Tribunal is only available where specific legislation so provides: s 25, AAT Act.

If the DAA confirms or varies a decision, or if under s 119(4) a decision is taken to have been confirmed, s 120 gives a right to apply to the Tribunal for review. That s 120 is limited to these circumstances appears from subs (1) which provides:

"Applications may be made to the AAT for review of decisions of the DAA that have been confirmed or varied under subsection 119(3)."

and s 121 also reflects that it is only in the case of a reviewed decision which is confirmed or varied that further review may be sought through the AAT. It provides:

"(1)If written notice is given to a person affected by a reviewable decision that the reviewable decision has been made, that notice must include a statement to the effect that:

(a)the person may, if dissatisfied with the decision, seek a reconsideration of the decision by the DAA in accordance with subsection 119(1); and

(b)the person may, subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied with a decision made by the DAA upon that reconsideration confirming or varying the first-mentioned decision, make application to the AAT for review of the decision so confirmed or varied.

(2)If:

(a)the DAA confirms or varies a reviewable decision under subsection 119(3); and

(b)gives to the person written notice of the confirmation or variation of the decision;

that notice must include a statement to the effect that the person may, subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied with the decision so confirmed or varied, make application to the AAT for review of the decision.

(3)A failure to comply with this section does not affect the validity of a decision."

It is, again for reasons which appear below, noteworthy that it contemplates that the DAA will give written notice of a reviewable decision "to a person affected by" the decision.

Section 93AA at the start of Chapter 4 of the DAA Act, dealing with general maters including the rights of review, defines "reviewable decision" to mean a decision of the DAA under Parts 2, 3, 4, 5, 6 or 8 of Chapter 2, Part 3 of Chapter 3 or Part 4 of Chapter 4 of the DAA Act. Part 3 of Chapter 3 of the Act includes s 93O of the DAA Act.

Finally, to put into proper context the question which arises on this appeal, it is clear that the infrastructure borrowing will involve necessarily a very substantial sum, potentially from a range of lenders, and potentially over a very lengthy period.  As the Explanatory
Memorandum issued by the Treasurer with the amendment in 1994 stated:

"1.8Certain infrastructure projects with lengthy construction periods may not produce assessable income for some years.  Where taxpayers borrow funds to finance the construction of those projects which accumulate tax losses in the early stages of development, they are often unable to access the interest deductions available to them.

1.9In order to encourage private investment in the construction of certain publicly accessible infrastructure projects, the Government decided to allow companies borrowing to finance the construction of such infrastructure projects to effectively transfer the interest deductions incurred on those borrowings to the providers of the finance."

The question which arises on this appeal is whether Mr Allan is either a person "affected by" the decision under s 93O of the DAA Act in the particular circumstances, or if s 27(1) of the AAT Act determines standing (if the decision is reviewable by the AAT) is a person "whose interests are affected" by the decision.

THE DECISION

The Victorian Parliament passed the Melbourne City Link Act 1995 ("the City Link Act").  It provides, at least in part, for the construction of new roads, tunnels, and bridges for the movement of vehicular traffic in the Melbourne metropolitan area ("the City Link project").  Those roads would operate as privately owned tollways.

One part of the new roadways includes the widening of the Tullamarine Freeway.  Mr Allan's home is presently about two hundred metres from the Tullamarine Freeway, and above it.  The proposed widening of the Tullamarine Freeway will be to within about one hundred metres of his home.  Fundamentally, he asserts standing to apply for review because the construction of the City Link project, or at least that part of it near his home, will have a severe adverse effect on his residential amenity.  He complains that he will be affected by increased traffic noise due to proximity, to greater traffic usage, to faster traffic movement, and to different traffic usage of the Tullamarine Freeway.  He also complains that the view from his home will be degraded or blocked.  He is also concerned that that particular part of the works will increase the levels of air pollution at and near his home due to greater and different traffic movement and to its closer proximity.

On 19 and 30 January 1996, the DAA decided to issue infrastructure borrowing certificates under Chapter 3 of the DAA Act in relation to proposed borrowings to fund the City Link project. The applicant learnt of that decision by reading a local newspaper report about it on 26 February 1996. He asked the DAA on 13 March 1996 to reconsider its decision. The DAA responded by letter dated 11 April 1996 in the following terms:

"My power to reconsider a decision under the Act depends on s.119 of the Act, and only arises when a request is made under s.119(1).  I have therefore considered your request, Mr Peter Fitzgerald's oral submissions of 2 April 1996, and his further response on your behalf dated 9 April 1996, in order to determine whether your request comes within s.119(1).  I have also considered written submissions made to me on this issue by the companies to which certificates have been issued.

I have concluded that you are not a 'person who is affected by' the decision, within the meaning of s.119(1) of the Act.  Your request therefore does not come within s.119(1) and there is no basis on which I can validly reconsider the decision."

The application to the AAT was then instituted on 10 May 1996.  Somewhat contrary to the DAA's letter of 11 April 1996, the application to the AAT asserted:

"The DAA has confirmed its decision to grant the application and issue the certificate pursuant to s.119(3) of the Development Allowance Authority Act 1992 or, alternatively, pursuant to s.119(4), entitling the Applicants to bring this Application under s.120(1) and (2)."

The DAA had in fact declined to reconsider its decision at the behest of the applicant. The fact that the DAA's powers to grant or refuse an application for a certificate are limited is recognised by the ground of review identified, namely that the certificate should not have been granted because there was in force the City Link Act which will prohibit or restrict the operation of other facilities in competition with the City Link project. It therefore seeks to invoke s 93O(2) of the DAA Act. Section 93O(2) provides:

"If:

(a)the borrowing is a direct infrastructure borrowing; and

(b)there is in force, at the time at which the DAA proposes to issue the certificate in relation to the borrowing, a law that the DAA is satisfied will prohibit or restrict the operation of other facilities in competition with the infrastructure facilities concerned;

the DAA must not issue the certificate."

No particulars are provided.

THE TRIBUNAL'S DECISION

The Tribunal decided:

• the decision to issue the certificate under s 93O is a reviewable decision for the purposes of ss 119 and 120 of the DAA Act

• the word "competition" in s 93O(2) of the DAA Act should be given its ordinary meaning, and so the applicant was not a person who was or would be in any relevant way in competition with the proposed tollway

• the degree of adverse affection complained of, having regard to the purposes of the DAA Act, is too remote for the applicant to be considered as a person whose interests are affected by the decision of the DAA to grant the certificate, so as to allow him to have a right of review to the Tribunal; thus the applicant is not a person affected by a reviewable decision, and the Tribunal did not have jurisdiction to hear and determine his application for review.

The applicant was, at that point, one of two persons who were pursuing that application for review.  The other was Ross Samuel Nolan ("Mr Nolan").

Mr Nolan also wished to appeal from the Tribunal's decision. He did not do so within the time prescribed, and sought an extension of time to do so under s 44(2A) of the AAT Act. That application came before Goldberg J who, on 4 February 1997, refused it (Nolan v Development Allowance Authority, Federal Court, unreported).  No appeal had in fact been sought to be instituted, nor formulated, up to that point in time.

In the course of his reasons for that decision, Goldberg J identified as a "key issue" whether there was any merit in Mr Nolan's claims to be a person affected by the decision of the Tribunal.  His claim to standing was different from that of the applicant.  Mr Nolan had been involved for some time with an aerocar project which existing legislation prohibits but which, if permitted, would be in competition with the City Link project.  Again, unlike the present applicant, Mr Nolan did not object to the City Link project itself, but to his potential competitors having the benefit of tax concessions being given to their investors so as to allow the project to proceed more readily when he is prevented by legislation from establishing his project.

Goldberg J observed, at 15-16 of his reasons, that:

"It seems to me that the prospects of the applicant succeeding in establishing that he is a person affected by the decision of the Authority having regard to the nature and present state of his project are sufficiently remote and speculative as to make me come to the conclusion that the prospects of any appeal succeeding are highly unlikely.  When one considers the relevant principles relating to persons being affected, it seems to me that the applicant's business concerns and the matters which he has propounded are too remote from the issues dealt with by the Act.  I accept that the applicant has been involved for a considerable period of time in
seeking to develop the aerial project to which I have already referred.  But, it appears to me that the connection between that project and the Melbourne City Link Project is tenuous in the extreme and too remote to give the applicant a basis for saying that he is affected by this decision."

He did not think there was a sufficient connection between Mr Nolan's proposal and the City Link project to bring s 93O(2) of the DAA Act into operation.

For that reason, as well as for reasons more generally relating to the exercise of his discretion, the application was refused.

One matter put in argument as to the merits was that the range of persons who may fall within the category of persons "affected by" the decision is a narrow one.  As to that, his Honour observed (at 16 and 17):

"I also think there is force in the argument advanced by [counsel for the DAA] that the only persons who should have standing, or would be entitled to be said to be persons affected, would be persons involved in relation to the issue of the certificates.  By involved, I mean have an interest in relation to the funding or the provision of the money, or have an interest in such conditions as might be involved in relation to the issue of the certificate."

and later in his reasons:

"[Counsel for the DAA], also, in support of his argument referred to the difference in wording between sections 119 and 120 of the Act where the words "confirm" or "vary" appear in both sections, but the word revoke only appears in subsection (3).  I consider that the structure of those sections are such to support the proposition that the range of persons entitled to say they are affected by a decision in relation to the certificates is very limited."

As appears below, my judgment reflects those observations.

THE GROUNDS OF APPEAL

The applicant's sole point on this appeal is whether he is a person who, within the meaning of s 119 of the DAA Act, "is affected" by the decision referred to, or within the meaning of s 27(1) of the AAT Act is a person "whose interests are affected" by the decision.  It is a matter of standing.

It is not in issue on this appeal that the decision is a "reviewable decision", as defined in the DAA Act, for the purposes of s 119 of that Act.

His contention is that he has a special interest in the decision, because he suffers special damage by reason of it, and he relies upon Boyce v Paddington Borough Council
[1903] 1 Ch 109, and Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493.

It is said that the "zone of interest" test for standing as discussed in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Limited (1994) 49 FCR 250 is not the relevant test for his standing, or at least not a necessary condition for standing. Alternatively, he contends that he falls within the "zone of interest" of s 93O of the DAA Act as its zone of interest in any event encompasses "the whole community".

CONSIDERATION OF THE AUTHORITIES

It is an appropriate starting point to refer to the comments of Buckley J in Boyce (above, at 114):

"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."

As Gummow J remarked in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 at 132, in the context of the pursuit of the equitable remedies of injunction and declaration, the complexity which the Boyce "rules" have sometimes caused has been diminished by the decisions of the High Court in Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 and Wentworth v Attorney-General (NSW) (1984) 154 CLR 518. In such cases, standing does not now require special damage in the traditional sense, but upon "having a special interest in the subject matter of the action" (per Gibbs CJ in the ACF case at 527, with whom Mason J agreed at 547).  Both Gibbs CJ and Mason J were at pains to point out that the manner in which that principle will be applied will depend upon the particular circumstances, a point forcefully made by Mason J in Robinson v Western Australian Museum (1977) 138 CLR 283 at 327-8 where he said:

"The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another."

It is not clear whether, in a practical sense, the views of Stephen J in that case would produce any different result in any particular circumstances.  His Honour (at 537) identified the possible sources of standing to be either within the principle in Boyce (above) or some development of that principle, or alternatively because standing has been conferred by statute, and then in relation to one kind of special damage reflected by an alleged failure to properly deal with the Australian Conservation Foundation's
comments upon a draft environmental impact statement, he said (at 541):

"But they may also do so by conferring some right the denial of the enjoyment of which gives standing to sue to complain of that denial.  Although that very denial might be thought to qualify as the suffering of special damage such as that of which Buckley J. spoke, it is, perhaps, preferable in such a case to resolve the question of standing by the direct route of a search for enforceable rights conferred by statute, rather than follow the circuitous course of seeking, in accordance with Boyce's Case, for the existence of special damage."

His Honour made similar remarks at 543.

In the present case, it is submitted that the relevant standing is derived from s 119 of the DAA Act. In those circumstances, in my view, the determination of the issue of standing depends upon the proper construction of the Act. In Alphapharm (above) that approach emerges clearly from the reasons of each member of the Full Court;  see per Davies J at 261 and 267, per Burchett J at 264 and 266, and per Gummow J at 272 where his Honour said:

"Like the expression "a person aggrieved", the phrase "a person whose interests are affected by the decision" and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review.  The day is long gone when there was any general presumption that in such statutes the "interests" concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law.  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."

The results of his Honour's interpretation of the legislation clearly dictated the outcome of the appeal:  see at 280.  See also the same approach adopted in the Australian Institute of Marine and Power Engineers case (above, at 131) where Gummow J made the point:

"In each instance the content of the expression is to be seen in the light of the scope and purpose of the statute in issue and, given the diversity of statutory provisions, no general proposition is to be established from these examples."

and in United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 527.

This point has been recognised even in respect of legislation which provides either the general entitlement to judicial review of an administrative decision, or which provides in respect of a specified decision or specified decisions under particular enactments, the entitlement to apply to the Tribunal for administrative review of a decision, namely under the Administrative Decisions (Judicial Review) Act 1977 and the Administrative Appeals Tribunal Act 1975 respectively. In the United States Tobacco Company case (above, at 529) the Court in respect of the first mentioned enactment said that:

"the nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review",

and in Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157 Brennan J in respect of the second mentioned enactment said:

"However, a decision which affects interests of one person directly may affect the interests of others indirectly.  Across the pool of sundry interest, the ripples of affection may widely extend.  The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of s 27(1).  The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected."

In determining where the line is to be drawn under a particular statutory enactment, such as s 119 of the DAA Act, Davies J in Alphapharm (above, at 260) made the point that the question of standing is related to issues of procedural fairness, so that if a person has interests which ought to be taken into account in the making of the decision, then that person will ordinarily be entitled to be heard and will qualify as a person who is "aggrieved" or whose interests are "affected" by the decision; the same point was noted by Burchett J in that case (at 266). While the converse is not necessarily correct, I think that observation provides a sensible guideline for consideration of provisions such as s 119 of the DAA Act.

Thus, in my view, ultimately the question to be answered involves the proper construction of s 119 of the DAA Act. Whilst approaches in other cases may provide an identification of interpretative considerations which may be of assistance, it is by reference to the particular provision in its context in the legislative enactment itself which will provide the answer.

There is one other aspect to which the authorities provide some assistance. The applicant sought to treat the basis of standing under s 119 of the DAA Act as founded upon either the "zone of interest" of that enactment or upon the applicant suffering special damage within the Boyce principles as explained by the High Court.  Whether the legislation is to
be construed as entitling those quite distinct alternatives for standing (as they were put in submissions) is a matter for consideration.  I do not necessarily accept however that two such independent alternatives are necessarily to be assumed as the starting point in every case, with analysis of the legislation undertaken to see if one or other of them is excluded.  Rather, the proper construction of the legislation will reveal whether, in a particular instance, the person concerned falls within the expression in the enactment which grants standing.

Before turning to consideration of that question, however, it should be noted that so called 'special damage' does not exist in any event except in the context of the particular enactment, and of the decision made under it.  Thus in Australian Foreman Stevedores Association v Crone (1989) 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."

so that in McHattan's case (above, at 69) Brennan J rejected the claim to standing as the interests of Mr McHattan were not 'immediately and directly affected' by the decision, an expression also referred to with apparent approval by Davies J in Alphapharm (above, at 259). In that latter case, Burchett J also made the point that it was in respect of the decision sought to be reviewed that the special interest was to be established. His Honour said (at 266):

"It was the Secretary who had the statutory responsibility to ensure that full weight was given in the making of the decision to questions of safety and other relevant matters.  In respect of those questions, the respondent had no interest of its own beyond that which it shared with the wider public."

Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 is an illustration of the operation of those principles under the legislation then under consideration. I do not think it establishes any greater or different proposition to those set out above.

In legislation providing a general right of review of administrative decision making, whether judicial review or further administrative review, it will be generally appropriate to recognise standing premised upon expressions such as "person aggrieved" or "person whose interests are affected" by reference to the Boyce principles as now explained or refined by the High Court, for example, in the Australian Conservation Foundation case (above). Where the relevant claim for standing is under a particular enactment such as the DAA Act, that legislation will provide guidance for what interest or what degree of affection is necessary to grant standing. The 'zone of interest' expression used by the applicant in its submissions, sought to be used as but one alternative route to establish standing, is really no more than a description of what particular legislation has designated as the degree of interest or affection necessary under that legislation to grant standing.  It is not necessarily the case that such a description, even if it is apt, is used to cover a field
entirely separate from the 'special interest' test recognised by the High Court.  Clearly a person whose interests are directly and substantially affected by an administrative decision may be entitled to standing.  In such a case, the way the decision under the legislation operates will illustrate the degree of affection sufficient to constitute the 'special interest' required to establish standing.  Less immediate consequences of the decision, or less substantial consequences of the decision, may not so qualify.  It is not therefore necessarily the case that there are in fact two entirely different routes to establish standing as contended for.

It may be that those instances where the description of the interests adversely affected are clearly within the zone of interest of the legislation is a way of saying that clearly the 'special interest' requirement under that legislation is met; it would not inevitably follow that some other interests affected, or some more remote affection of interests may not also qualify to grant standing.  In my view it is only by reference to the legislation in question that the standing of the applicant can be determined.  Cases such as North Coast Environment Council Inc v Minister for National Resources (No 2) (1994) 55 FCR 492 can be seen as illustrating that approach.

In the present case, the applicant sought to pin the ground of review to be pursued upon s 93O(2)(b) of the DAA Act, although he did not assert that he had any interest in any other facilities the operation of which might be prohibited or restricted by the Melbourne City Link project. I do not think, for the reasons given, that he is thereby excluded from having standing to seek reconsideration of the decision under complaint under s 119 of the DAA Act. But on the other hand, to say that is not to accept that he is, as a person resident adjacent to the Tullamarine Freeway to be widened as part of that project and who will suffer the consequences referred to by reason of that widening, thereby entitled to standing under s 119 of the DAA Act. It is necessary to consider the legislation in detail. That is what the High Court did in the Shop Distributive and Allied Employees Association case (above).

THE APPLICANT'S STANDING

Although one comes to consider this question in the light of the guidance of the authorities discussed, the question ultimately is what the Parliament intended by the expression "A person who is affected by ..." the decision in s 119 of the DAA Act.

If that expression, on its proper construction, does not encompass the applicant, as a person who has been "adversely affected in some way to an extent greater than the public generally" (per Aickin J in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 508), then he had no status to seek review of the decision complained of. It would then follow that the DAA was correct in concluding that, despite the applicant's request, there was no power to reconsider the decision and in declining to reconsider it. In that event, there would be no reconsideration made by the DAA confirming or varying the decision complained of, and so s 120 of the DAA Act would not be available to create a right in the applicant to apply for a further review by the Tribunal. The Tribunal so decided. There is no other provision identified as a vehicle

providing the applicant with a right of review to the Tribunal.  Gummow J in Alphapharm (above, at 270-271) similarly categorised such an issue in the following way:

"What happened in this case did not involve any review on the merits under the AAT Act. That stage was not reached. The Minister did not give any decision reviewable by the AAT. Rather, the view was taken that there was a lack of sufficient standing because the party requesting reconsideration of the initial decision was not a party whose interests were affected by it, within the meaning of s 60(2)."

Unlike the present case, the applicant in Alphapharm had applied under s 5 of the Administrative Decisions (Judicial Review) Act 1977 for an order that the decision maker had made an error of law in deciding that the applicant lacked standing to request reconsideration. In my view that was an appropriate procedure to have been followed in the present case. If the present applicant lacked standing under s 119 of the DAA Act to request the DAA to reconsider the decision, then he had no standing to seek review of the DAA's refusal to reconsider the decision by the Tribunal. As both s 119 and s 121 of the DAA Act provide that a request for reconsideration which has not resulted in a reconsideration within forty days shall be deemed to be a confirmation of the decision under review, it is arguable that the course of procedure adopted by the applicant is also an appropriate one. If it were necessary to decide the point, I would conclude that a request for reconsideration made by a person who is not entitled to make the request is not a valid request at all, so that no deemed confirmation occurred and so no right to seek further consideration by the Tribunal on the part of the applicant existed. However, I think it nevertheless appropriate to deal with the question raised on this application, as the procedure in fact followed has not served to obfuscate the issue at all and I have reached a firm view in relation to it.

It may be assumed, for my present consideration, that the applicant is a person who has suffered "special damage", to use the expression of Buckley J in Boyce at 114 (above), that is, damage beyond that suffered by members of the public generally by reason of the overall decision to proceed with the City Link project, including the widening of the Tullamarine Freeway. Whether that damage is suffered by reason of the decision complained of is a different and difficult question to which I refer below. As I have indicated, I have nevertheless come to the firm conclusion that the expression in s 119 of the DAA Act does not encompass the applicant in any event. There are a number of reasons for that conclusion.

In the first place, Chapter 3 of the DAA Act is a series of provisions designed to encourage or facilitate investment in, and therefore the progression of, substantial infrastructure projects. There are only seven types of facility which may qualify as an infrastructure project. They are each clearly necessarily of great substance, and would require themselves either specific empowering legislation (as was the case in respect of the project to which the decision under complaint relates) or that they undergo the gamut of planning approval and other necessary approvals under law, or perhaps both. In either event, the project would not proceed without accommodating provisions addressing the range of planning, environmental, social and similar considerations. Such provisions contain within them the circumstances in which, and the extent to which, persons
including persons such as the applicant, may seek to participate in those primary processes, or in the review of those processes. That is not to say that such legislative provisions cover the field of persons who have or may have the right to participate in some way and at some stage of the determinative processes. But I think it is not likely that the Parliament contemplated by s 119 that a person who had chosen not to participate in those primary determinative processes with respect to the infrastructure project, or who had done so but without succeeding in causing the project to be prohibited or to be varied to that person's satisfaction, should by reason of special interests of the nature claimed have another opportunity to achieve indirectly what that person had not achieved directly. It was not suggested that the applicant's 'special interest' had any relevance whatsoever to the DAA decision, or to its requested reconsideration. The ground of review specified was only in terms of s 93O(2)(b) of the DAA Act. The 'special interest' was no more than a vehicle to get to the gate where the attack was to be pursued on that other ground in which the applicant had no real interest at all.

The remaining reasons for my conclusion flow more specifically from the provisions of the DAA Act. There is, as I have noted, no provision in that Act requiring public notification of the initial application for the certificate, nor to anyone other than the applicant or applicants of the decision granting or refusing it. Reasons are required to be given only to an unsuccessful applicant or applicants. Thus, I infer the intention that the initial decision making process was intended to be a private one, as to which persons such as the applicant were not intended to have any right to participate. That is also confirmed, in my view, by the fact that the DAA's role is a refined and confined one in the decision he is required to make. Furthermore, the right of reconsideration, and then if appropriate of review to the Tribunal, is given to a person affected by the reviewable decision to be exercised within twenty one days after the decision first comes to the attention of the person seeking review. The present applicant provides an illustration that, if that awareness of the decision may be achieved through casual processes, it may come much after the decision complained of. In the present case it was only a matter of a month or so, but it might have been much later. It may have come to the attention of a person such as the applicant only after the infrastructure project was substantially advanced. Yet, on the applicant's submission, there would nevertheless be a right to seek review to the DAA and an obligation on the DAA to reconsider the decision. I think such considerations compel one to the view that s 119 is, in relation at least to Chapter 3 of the DAA Act, intended to provide review only within a much more structured system. Indeed, although it is not necessary to decide more than the range of persons affected, as described in s 119 of the DAA Act, does not include the applicant, it may be that it is only an unsuccessful applicant or applicants being persons who have received notice of the refusal of the application for a certificate who are or may be persons affected. It is noteworthy that it is only those persons, and the Commissioner of Taxation, who are notified of the decision and only those persons who, at the time of the notification are given reasons for the decision. Section 119(2) of the DAA Act which requires the applicant for review to provide reasons for making the request in the request for review clearly suggests the same conclusion. A person not privy to the decision, who incidentally only learns of it and perhaps only in the broadest way, and who has no details of the application itself or of the reasons for the decision could not realistically be required to comply with such a legislative direction.

Finally, I refer also to ss 119(4) and (5) and 121(1) and (2) of the DAA Act. Those provisions do two important things:

• they oblige the DAA upon reconsideration of a decision to confirm, revoke or vary it, and to give notice of the decision together with reasons to the applicant for review, and

• they entitle a person dissatisfied with a decision of the DAA upon reconsideration of a decision, and which has resulted in confirmation or variation of the decision, but importantly not in revocation of the decision, to seek a further review before the Tribunal.

What is immediately apparent is that, if the applicant on this application is correct, then those provisions leave the initial applicant for the grant of a certificate, and which has been successful, out of "the loop" in the review process. That person is not expressly entitled to be notified of the decision on reconsideration or to reasons for that decision. Furthermore, if the reconsideration has led to the revoking of the initial decision, in a case such as the present effectively meaning the refusal of the certificate sought, that person is given no right to seek review by the Tribunal. Neither of those consequences could have been intended by the Parliament. It is much more likely, and consistent with the other indications in the DAA Act referred to, that persons such as the present applicant were not contemplated as being entitled to seek review of a decision under s 119 of the DAA Act. Then those provisions just referred to make sense: a dissatisfied applicant for a certificate can apply for reconsideration of a decision (which would necessarily be a decision not to grant a certificate in the terms sought or at all), and be notified of the decision with reasons, and have a further right of review to the Tribunal if still dissatisfied.

It is not necessary to foreclose any other person than an unsuccessful applicant or a partially successful applicant for a certificate under s 93O of the DAA Act from qualifying as a "person affected by" a decision made under that section for the purposes of s 119 of the DAA Act. I do not do so. However, in my view it is clear that the applicant, or persons in that category, do not have standing under s 119 of the DAA to seek review of the decision under complaint.

As an additional basis for my conclusion, I observe that the decision under complaint is not the decision which directly causes the applicant the special damage of which he complains.  The decision primarily causative of that asserted special damage is the decision to proceed with the City Link project, or perhaps the decision to proceed with particular parts of that project in a particular way.  The decision under complaint is not entirely removed from that process.  Under the City Link Act Sch 1, cl 2.7(d)(iii), the certificate under the DAA Act was a condition precedent to the overall project proceeding. Clearly, the grant of the certificate was a consideration to those who conceived and promoted the City Link project. I do not think that that is, in itself, sufficient to establish the necessary special interest, or to paraphrase the expression used by Brennan J (as he then was) in McHattan (above), to establish that the decision to grant the certificate immediately and directly affected the applicant.  Of course, that expression is not a refined term of art, but a description as a matter of practical common sense that

the decision under complaint was not a relevant cause of the applicant's claimed special damage.  The decision under complaint has two immediate and direct consequences, neither of which in any sense caused the applicant to suffer the asserted special damage.  They are:

• that the promoters of the project can obtain finance for the project by a bond issue upon certain terms which they could not otherwise offer, and

• less immediately, that those who advance funds to the bond issue and receive interest in respect of those advances will not have to pay tax on that interest even though it would otherwise be taxable income.

Neither the decision under complaint, nor its implementation by those two means, in any relevant way amounts to an interference with a public right either at all or in such a way as to cause the applicant special damage peculiar to himself.  More correctly, the applicant does not have a relevant special interest in the decision.  Even applying the expression of the test of standing of Buckley J in Boyce (above), without having regard to the terms of the DAA Act itself, I do not think the applicant has standing to challenge the present decision under complaint.

It will be a question for each case whether the special interest asserted is of sufficient practical import in the circumstances to qualify the person asserting it to challenge the decision complained of.  That question must be answered in the context of the legislation within the framework of which the decision is made.  By reference to that legislation, in my view the applicant does not qualify as a 'person affected' under s 119 of the DAA Act. In my judgment that conclusion is apparent whether one looks only to the legislation for the answer to the question, or whether one looks to the more general principles enunciated by the High Court and applies them in the context of the decision made under the DAA Act.

I accordingly dismiss the application.

I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:           7 August 1997

Counsel for the Applicant:  Mr C Gunst

Solicitors for the Applicant:  Simon Northeast

Counsel for the Respondent:  Mr P Mees

Solicitors for the Respondent:  Australian Government Solicitor

Date of Hearing:  16 May 1997