Smith v Rundle

[1991] HCATrans 217

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No PlS of 1991

B e t w e e n -

DAVID LAWRENCE SMITH

Applicant

and

NORMA RUNDLE, ALLAN RUSSELL

LLOYD and MALCOLM FREDERICK

CHARLES CRAIG

Respondents

Application for special leave

to appeal

MASON CJ
DEANE J

McHUGH J

Smith 1 9/8/91

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 AUGUST 1991, AT 11.15 AM

Copyright in the High Court of Australia

MR D.R. WILLIAMS, QC:  Your Honours, I appear with my

learned friend, MRS J. REID, for the appellant.

(instructed by Peter Apostolos Panegyres)

DR s.c. CHURCHES:  Your Honours, I appear for the

respondent. (instructed by Messrs Jackson

McDonald)

MASON CJ: Yes. Mr Williams, we are familiar with the facts

and the circumstances in this case, and we

have read the submissions that have been filed.	It
did seem to us that you might direct your
submissions, in the first instance, to the points
that are made by the respondents in their outline
of submissions.

MR WILLIAMS: Certainly. In fact, the applicant seeks to

challenge the decision of the Full Court

principally on the ground that the respondent

should not have been held to have had standing to

apply for and obtain certiorari.	I limit my
submissions to that point.

Your Honours, in Onus v Alcoa,

Chief Justice Gibbs stated the principle in relation to standing to obtain declarations and

injunctions in simple terms. He said:

A plaintiff has no standing to bring an action

to prevent the violation of a public right if

he has no interest in the subject matter

beyond that of any other member of the public;

if no private right of his is interfered with

he has standing to sue only if he has a

special interest in the subject matter of the

action.

He added that:

The rule is obviously a flexible one ..... the

question what is a sufficient interest will

matter of the litigation. vary according to the nature of the subject

In that case, of course, the plaintiff sought

injunctions.

In this case, the respondent alleged that the

Minister's decisions to approve an amendment to the

metropolitan region scheme was beyond power, but

there was no allegation of any breach of a private

right. The claim was for certiorari and for an

interlocutory injunction.

In relation to injunctions, the Full Court

acknowledged the Conservation Foundation test, and

the reference is at page 33, towards the bottom of

Smith 2 9/8/91

the page. In relation to certiorari, the

Full Court, on the basis of references to English

authority, applied what is identified as the more

liberal test of standing to the effect that an

applicant with a particular grievance is entitled

to the remedy, ex debito justitiae, and the

reference to that is on page 34 and, in particular,

a dictum of Lord Justice Parker, as His Lordship

then was, in Thames Magistrates' Court ex parte

Greenbaum. The second string to that principle is

that a stranger may obtain the remedy in the

discretion of the court.

In this case, the applicant seeks special

leave in order to contend on appeal that the test
for certiorari should be the special interest test
applicable in the case of claims for declarations

and injunctions. It seeks to argue or the Minister

seeks to argue that that should be the case

generally but, at the very least, it should be the case when the purpose and effect of the grant of a

writ of certiorari would be similar to or the same

as the grant of the remedies of declarations and

injunctions which might be claimed by an

alternative route.

DEANE J:  How does that approach fit in with what is said in

the application book at page 34, line 12?

MR WILLIAMS: At that level, that was an appropriate

concession to make. Before this Court, that is not

a necessary concession.

MASON CJ:  Why was it an appropriate concession to make

before the Full Court?

MR WILLIAMS: Because the principle that is sought to be

overturned here is one of long standing; one that

has been applied for many years in England, prior

to the introduction of Order 53, the application

for judicial review procedure.

MASON CJ: Why could not the Full Court overturn it? It was

not bound by any decision that precluded it from so

doing.

MR WILLIAMS:  It was not bound by any decision of the

High Court.

MASON CJ:  What is more, the Full Court obviously took the

view that it could do so, because it went on to say

that the concession was rightly made.

MR WILLIAMS: Well, that was the view formed by the

Full Court, so it was on the basis of the Full Court's own opinion that the applicant did not

Smith 9/8/91

succeed on the contention that is now sought to be

put, rather than the fact of the concession.

MASON CJ:  Why do you say it was not open to you to put the

submission to the Full Court?

MR WILLIAMS:  It might have been open, but it would be a

submission that would be highly unlikely to have

succeeded.

MASON CJ: But that is not a reason for not putting a

submission.

MR WILLIAMS: Well, perhaps it is not.

MASON CJ:  Our work would be considerably reduced if that

was the proper approach to submissions.

MR WILLIAMS: Well, the volume of the High Court's work is

of course a relevant consideration; however this

is an important issue. Some idea of the confusion

that reigns in this area, I think, can be seen from

the very same page to which references have been
made by Justice Deane. That is, in the case of

Re Beggs; Ex parte Helena Valley/Boya Association,

a case which was, in many respects, on all fours

with this case, the Full Court applied the special

interest test in respect of declarations and

injunctions. It did not rely upon the so-called

more liberal test applicable in the certiorari

situation. The confusion that reigns, we submit,

is also highlighted by references made by the

Full Court to judgments of the Court of

Appeal of New Zealand and of the House of Lords.
At page 35 in the Chief Justice's judgment, he

refers to the case of the Environmental Defence Society and in particular a judgment of Justice

Cooke. That was a case brought under a statutory

judicial review proceeding, similar to the Order 53

proceeding under the English Rules of Court.

In that case the judgment of Mr Justice Cooke

depended upon a finding that there was standing for

good reason, but His Honour went on to then refer

to the judgment of Lord Diplock in the Fleet Street

Casuals case, which is referred to in the judgment

of the Chief Justice in this case at the top of the

page. Both cases were judicial review application

type cases; they were not the traditional

application for certiorari. The Fleet Street

Casuals case, however, concerned basically an

application for an order of mandamus and four
members of the House of Lords held that the

applicant had standing and Lord Diplock dissented

on that point and the dictum that is cited by Mr

Justice Cooke and picked up by His Honour the Chief

Justice, represents a departure from the opinions

Smith 9/8/91

of the House of Lords expressed in the Fleet Street

Casuals case.

It is expressed in language which suggests

that an open test applies not only in a certiorari

situation, but almost generally and, in our

respectful submission, is neither the law in

Australia having regard to the Conservation

Foundation case, nor is it appropriate.

McHUGH J: But, Mr Williams, it is not merely the concession

that is recorded at page 34. It is recorded at

page 37 of the appeal book where counsel for the
Crown conceded that the statement of principle by
Lord Denning in the Liverpool Taxi Owners'

Association case was correct, and gave the present applicants standing to apply.

MR WILLIAMS: That is correct, Your Honour, and we do not

resile from that. It does not make the situation

in this Court any different though. If one looks

at the basis upon which the court found that there

was standing, in our submission it is readily

apparent that - and this must have been a

possibility present to the mind of the Full

Court - the applicants could not have satisfied the

special interest test.

The grounds upon which these applicants were

granted standing appear at the bottom of page 36.

He said the:

residents who were users of the land in

question, had a sufficiently particular

grievance to give them sufficient standing to

entitle them to relief ex debito justitiae.

In addition, it appears that Mrs Rundle and

Mr Lloyd are both ratepayers ..... and Mrs

Rundle was a member of -

the local authority council.

What we are concerned with in this case is

land which, as the Chief Justice points out at

page 21, was Crown land which was reserved as a

C class reserve under the Land Act. Under the Land

Act as a C class reserve it could be used for the purpose for which it was reserved, but it could

also be leased by the Minister for Lands for

purposes other than that for which it was reserved. region scheme, that being, in effect, a super town planning scheme covering the metropolitan area of Perth. It was a reserve for the purpose of

tertiary education.

Smith 9/8/91

Now, there are two things perhaps that arise

out of that status of the land. The first is that

arguably a member of the public using the land is a

trespasser, but whether or not that is correct, the

use of the land by the applicants could not have
been in any sense relevant to the use of land for
the purpose for which it was reserved, for tertiary

education.

The second point is that at any time, having

regard to the ministerial powers under the Land

Act, the right of a person venturing on the land

being terminated. There is no suggestion in this

case it was, but it was by acquiescence rather than

by right or in any situation giving a special

interest that the local people, including the

residents in question, used the land.

The second ground upon which standing was

sought to be upheld was that two of the three

applicants were ratepayers. That means that they

were ratepayers of the local authority. In our

submission, that has no relevance. We are

concerned with Crown land, the Crown in right of

the State. We are concerned secondly with a

regional scheme, and the local authority

constitutes merely one of many local authorities

whose area participates in the scheme. No right or

interest of any resident in the capacity of

ratepayer was relevant to their use of the land.

The same argument, in our submission, applies

in respect of Mrs Rundle, who was held to have

standing - possibly by virtue of being a councillor

- she could have no greater standing than the

ratepayers or electors whom she represents and

there is nothing to suggest that any of those

ratepayers or electors had any interest different

to that of any other member of the public.

The references made by the Chief Justice to

Lord Diplock's open-ended invitation to public	spirited individuals to seek to enforce public
duties appears to bring in, as relevant, membership
of local organizations. The evidence was that
Mrs Rundle at least was a member of a number of
local organizations including the Hepburn Woodlands
Heights. That is not a ground expressly relied upon but if regard is had to the citation of
Preservation group and the Friends of the Hepburn suggests that that was something present to the
mind of the Chief Justice.

Each of the three applicants could not, in any

sense, be said to be an adjoining land owner. Each

resided - the closest, some half a kilometre, in

Smith 6 9/8/91

other cases more, from the land. So we do have

what, in our submission for the purpose of the

certiorari test - the traditional certiorari test -

would be treated as strangers and we do not have,

in our submission, anybody who could be held to

have a special interest within the concept of the

Conservation Foundation test.

In the judgment of Chief Justice Gibbs in

Onus, in formulating the test, His Honour said that:

If an attempt were made to frame an ideal law

governing the standing of a private person to

sue for such a purpose -

of preventing the infringement of the law by a

public authority it would give rise -

to conflicting considerations.

He said, I quote:

On the one hand it may be thought that in a

community which professes to live by the rule

of law the courts should be open to anyone who

genuinely seeks to prevent the law from being

ignored or violated. On the other hand, if

standing is accorded to any citizen to sue to

prevent breaches of law by another, there

exists the possibility, not only that the

processes of the law will be abused by

busybodies and cranks and persons actuated by

malice, but also that persons or groups who

feel strongly enough about an issue will be

prepared to put some other citizen, with whom

they have had no relationship, and whose

actions have not affected them except by

causing them intellectual or emotional

concern, to very great cost and inconvenience

in defending the legality of his actions.

Moreover, ideal rules as to standing would not

fail to take account of the fact that it is desirable, in an adversary system, that the

courts should decide only a real controversy

between parties each of whom has a direct

stake in the outcome of the proceedings.

In our submission, every aspect of that is

relevant to determining whether an applicant for

certiorari in the sort of situation in question

here applies. But as the law presently stands it

does not. They are the submissions we make.

MASON CJ:  Thank you, Mr Williams. The Court need not

trouble you, Mr Churches.

Smith 7 9/8/91

MR CHURCHES:	Thank you, Your Honour.
MASON CJ:	Of the questions which would be involved in an

appeal only one appears to us to be one of general

principle. That is the question of standing.

However, it seems that in the Full Court the

applicant conceded that the more liberal test, that

applied by the Full Court, was the correct test.

Moreover, it was also conceded by the

applicant that the statement made by

Lord Denning MR in Re Liverpool Taxi Owners

Association, (1972) 2 All ER 589 at page 595, was

correct, and gave the respondent standing in this

case.

It would not be right in these circumstances

to grant special leave to enable the point of

standing to be argued.

In any event, we are not persuaded that the

decision of the Full Court of the Supreme Court on
this question was attended with sufficient doubt to
justify the grant of special leave to appeal.

The application is therefore refused.

MR CHURCHES:  Your Honours, the respondents seek an order as

to costs.

MASON CJ:	You do not oppose that, Mr Williams?
MR WILLIAMS:	We do not oppose it.
MASON CJ:	The application is refused with costs.

AT 11.39 AM THE MATTER WAS ADJOURNED SINE DIE

Smith 9/8/91