State of Queensland v Wyvill Q.C. and L.F

[1989] FCA 634

Re: STATE OF QUEENSLAND
And: LEWIS FRANCIS WYVILL QC
No. Qld G92 of 1989
FED No. 634
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Administrative Law - locus standi - review of decision of inquiry into aboriginal deaths in custody - whether closest blood relative has standing in Federal Court proceedings - whether legal lobby group has standing.

Administrative Decisions (Judicial Review) Act 1977, s.12(1)

HEARING

BRISBANE

#DATE 28:9:1989

Counsel for the applicant: Mr Bourke

Solicitors for the applicant: Crown Solicitor

Solicitors for the Attorney-General
of the Commonwealth and the
respondent: Australian Government Solicitor

Counsel for Mrs Wouters,
Mr Adams and NAILSS: Mr L. Boccabella

Solicitors for Mrs Wouters,
Mr Adams and NAILSS: Paul Richards & Associates

ORDER

1. Walter James Adams and the National Aboriginal and Islander Legal Services Secretariat (NAILSS) be made parties to the application under s.12(1) of the Administrative Decisions (Judicial Review) Act 1977;

2. the application to be made a party by Maria Katerina Wouters be dismissed;

The Court directs that:

3. affidavits to be filed on behalf of Mr Adams or NAILSS be filed and served on or before 16 October 1989;

4. any affidavits in reply on behalf of the applicant or the Attorney-General be filed and served by 30 October 1989;

The Court orders that:

5. the costs of today be costs in the proceedings.

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

JUDGE1

The principal proceeding was begun on 1 September 1989 by the applicant filing an application for an order of review of a decision of the respondent.

1. In the application it is said that the applicant is aggrieved by that decision in that, in substance, the respondent determined that one Darren Steven Wouters, who died while in police custody, was within the terms of reference in Letters Patent issued to him. The matter concerns an inquiry into aboriginal deaths in police custody.

2. The applicant says, in its filed application, that the decision contained an error of law as to the interpretation of the word "Aboriginal" and Mr Bourke, who has appeared for the applicant on this interlocutory application, has pointed out that the difference of view is between one which would pay attention to social matters and one which used genetic criteria only.

3. To some extent the argument today has trespassed upon the principal issue; I have myself made some remarks about the interpretation issue, but it is not a question I have to determine now.

4. The sole issue is whether or not, within the meaning of s.12 of the three parties for whom Mr Boccabella appears may be joined. Section 12(1) reads as follows:
   

"The person interested in a decision, in conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision, or in a failure to make a decision, being a decision, conduct, or failure in relation to which an application has been made to the Court to be made a party to the application."

1. The peculiarity of the case is that the application relates not merely to what might be described as a federal matter but also to a state matter, because the respondent has Letters Patent issued by the Governor General of Australia and the Governor of the State of Queensland. However, it is said by Mr Bourke, and I think accurately, that it makes little significant difference, because in the respect which is relevant in this case the Letters Patent are not distinguishable one from the other.

2. The effect of s.12 of the Administrative Decisions (Judicial Review) Act was considered by the Full Court in United States Tobacco Co. v. Minister for Consumer Affairs, which is reported in (1988) ATPR paras 40-909. In the Court's reasons in that case, the following remarks appear at p 49, 765:
   

"The words 'interests' and 'interested' are not used in sec. 3 and 5 of the ADJR Act, respectively, as if they were mere terms of common parlance. The term 'interest' has long been an expression used in the law with respect to parties so as to require an involvement with a case greater than the concern of a person who is a mere intermeddler or busybody. Nevertheless, the criterion for standing prescribed by the Act is not a restrictive one. The broadest of technical terms has been selected. The necessary interest need not be a legal, proprietary, financial or other tangible interest. Neither need it be peculiar to the particular person."

The Court then went on to refer to a number of authorities, and in particular the decision in Ogle's case (below) which seems to me to be of particular importance for present purposes.

1. The Court did not say, as I read the decision, whether or not the word "interested" in s.12 confines whose who may be made parties to the category of persons who would have standing to institute proceedings in this Court; but the general drift of the decision is that the interest which is required is of the kind which is referred to in the more recent authorities dealing with locus standi.

2. The three persons, to use the word "persons" a little loosely, who seek to be made parties are Maria Katerina Wouters, Walter James Adams, and lastly, an organization called the National Aboriginal and Islander Legal Services Secretariat.

3. I propose to deal briefly with the application by Mrs Wouters. Whether or not Mrs Wouters would fall within the description of a person who is sufficiently interested to come within s.12(1), I would not in my discretion make her a party. It seems to me that it must be only in very unusual circumstances that a person such as Mrs Wouters who is not a blood relative nor, indeed, had any great contact with the unfortunate subject matter of this whole proceeding, the late Mr Darren Wouters, could be made a party.

4. I also take into account, although I do so over the objection of Mr Boccabella, the letter written by Mrs Wouters which has been admitted as exhibit 3. It is true, as Mr Boccabella says, that there may be some explanation of the letter which detracts from its impact, but on the face of it, it does not appear from the letter that Mrs Wouters is really interested in the point which is sought to be advanced on her behalf.

5. However that may be, I do not propose to exercise any discretion I have under s.12(1) in Mrs Wouters' favour.

6. The more difficult questions arise, as it seems to me, with respect to Mr Adams and the National Aboriginal and Islander Legal Services Secretariat which I shall call by its shortened name, NAILSS.

7. The position of Mr Adams may be summed up by saying tha he is an aboriginal person who is the brother of the deceased's mother, and, I deduce from the information supplied to me, wishes to have the death of Warren Wouters investigated by the respondent.

8. The argument which is advanced on his behalf equates his position with that of a person who is interested in a coronial inquiry, and it is said that it is likely that a coroner would, in these circumstances, give Mr Adams leave to appear.

9. My experience of coronial enquiries is admittedly not recent, but it seems to me that that is probably so. That does not necessarily, however, get Mr Adams success in this application.

10. Before stating my conclusion with respect to Mr Adams, I shoud make some remarks about what seems to me to be the effect of the authorities.

11. Firstly, it is my view that the test of standing has become more flexible in recent years, and in particular since the important decision of the High Court in Onus v. Alcoa of Australia Limited (1981) 149 CLR 27. The case is of particular relevance to the present because, in my opinion, the remarks made by Brennan J. at p 73 deal with matters in the same general category. His Honour said:
    

"A special interest in the subject matter of an action being neither a legal nor equitable right, nor a proprietary or pecuniary interest, will ordinarily be found to arise from modern legislation enacted to protect or enhance non-material interests - interests in the environment, in historical heritage, in culture. Where such a statut imposes a public duty to protect or enhance a non-material interest a breach of the duty is apt to effect a non-material interest, and it would be vain to search for proprietary or pecuniary damage suffered by a plaintiff."

1. It is true, of course, that the present case does not concern the interest of the environment, historical heritage or culture. Nevertheless, it concerns a matter in the same sphere of discourse, because the interest, for example, of a close relation in the cause of death of M Wouters cannot be said to be something that sounds in money. If Mr Adams is enlightened, or more enlightened as to cause of the death, or the public is more enlightened, it is not necessarily a cashable piece of information. It is, as his Honour says, vain to search for proprietary interest or pecuniary damage as a basis of standing in such a case.

2. The second matter I glean from the authorities is that the question of standing has become more and more one of degree. I dealt with this point, to some extent, in my unreported decision in Australian Foremen Stevedores Association v. Crone, 8 February 1989. I do not propose to read what I there said, nor to repeat the discussin of the authorities at pp 12 and 13, with one exception, and that is that it seems desirable to set out again the remarks of Brennan J. included in my reasons at p 13. His Honour said in the case there referred to:
   

"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 ... is the determination of the point beyond which the affection of interest by a decision should be regarded as too remote ..."

The same general theme may be found, I think, in the reasons of the Full Court in Ogle v. Strickland (1987) 71 ALR 41 and also reported in 13 FCR 306. Fisher J., in Ogle's case, favoured the test of Stephen J. in Onus and referred to it at p 308. His Honour said:

"As the law now stands it seems rather to involve in each case the curial assessment of the importance of the concern which a plaintiff has with a particular subject matter and of the closeness of that plaintiff's relationship to the subject matter."

1. Lockhart J., in the same case, referred with approval to authority for the view that the expression "a person who is aggrieved" should not be narrowly construed. His Honour pointed out that the decisions impugned in that case "had a greater effect upon the appellants than they have upon ordinary members of the public".

2. In fact, in the Australian Foremen Stevedores case, I held that there was no standing, because the proposed applicants had no sufficient interest in the matter. In this particular case, despite the very persuasive argument advanced by Mr Bourke, I have come to a contrary conclusion as to Mr Adams' standing. The operation of s.12(1) is not strictly discretionary, because the discretion arises only when one has decided that the person who is proposed to be joined has a sufficient interest. Nevertheless, that decision itself is akin to a discretionary one, because the cases seem to show, and in particular the remarks of Stephen J. (which I have not read in whole) seem to show that the Court should take a broad approach. Here, Mr Adams is, as far as one can tell from the material, one of the closest surviving relatives of the deceased. I am told by his counsel that he is interested in having the death investigated by the commissioner. The death occurred in circumstances which are, to put the matter simply, disgraceful and tragic, and one can understand an uncle, even if he was not particularly close to the deceased, having that interest. It may be, of course, that the situation would not have been the same had there been other closer relatives appearing but Mr Adams is, in fact, the only blood relation who seeks to appear, and I see nothing unreasonable about holding that he has sufficient interest to be heard.

3. If the application made by the State of Queensland succeeds, then the result must be that the inquiry into Mr Wouter's death can go further, so far as the respondent is concerned, and I can understand Mr Adams wanting it to go further. Therefore, the next order will be that Mr Walter James Adams be made a party under s.12(1).

4. The remaining proposed party, NAILSS, raises quite an unusual question. The argument advanced by Mr Bourke was that NAILSS was to be equated or assimilated to a group of lawyers who commonly appear in a certain type of case or in a certain interest. Although the details of the information supplied to me are not sworn to, and I have no reason to doubt its general accuracy, NAILSS has a lobbying function, to put it simply, which goes beyond mere legal representation. Mr Bourke properly makes the point that NAILSS is not a "peak" body, nor indeed a representative of aboriginal people generally. Nevertheless, on the information placed before me, it seems to be a bbody of some importance in the aboriginal community, because it plainly does, as it has in this case, take an interest in legal issues affecting that community. It says, or wishes to submit, that the question of who is an aboriginal and who is not is a matter of vital importance to it, and that seeems to me right.

5. Mr Bourke says, on the other hand, that whatever the meaning of aboriginal is decided to be in this particular case for this particular purpose does not necessarily govern its meaning in other contexts and that statutes or administrators may have their own more precise definition. I see the force of that. Nevertheless, applying the rather broad test of degree and the practical tests which one seems now to be required to apply, I see no escape from the conclusion that there is a discretion to make NAILSS a party and that it has an interest of a kind which has been recognised as sufficient.

6. I say such an interest as has been recognised, having in mind, of course, examples such as the priests in Ogle v. Strickland and the representatives of the consumer organisation in the tobacco case (United States Tobacco Company v. Minister for Consumer Affairs). Just as the priests had the function of repelling blasphemy, which was recognised by the Court in the Ogle case, it appears that NAILSS has a function, not merely as the passive recipient of instructions, but as an active protagonist on behalf of what it conceives to be the interests of the aboriginal community in legal affairs, and it wishes to pursue that interest in these proceedings.

7. Mr Bourke also argued, cogently enough, that the Commonwealth, or rather the Attorney-General, is already a party and his opponent and that it may well be that the Attorney says all which needs to be said by way of opposition. I have taken that into account. It seems to me to be a factor against allowing these two people to become parties. If, for example, every conveivable interest was already represented, the Court might be disinclined to exercise its discretion to join others.

8. It seems to me, however, that the matter is of sufficient importance and the possibility that the arguments advanced on behalf of the Attorney will differ from those to be advanced on behalf of the persons whom Mr Boccabella represents is such that I should reject Mr Bourke's submission in that behalf and exercise any discretion in favour of NAILSS.

9. The other matter which I take into account (and I do not say this to discourage a wide range of argument) is that the parties whom I am going to allow to be joined, Mr Adams and NAILSS, are represented by responsible solicitors and counsel who may be relied upon to argue the matter in a helpful and, if I may say so, legal way, rather than a propagandist way. The orders will therefore be that the application on behalf of Mrs Wouters be rejected, and those on behalf of Mr Adams and NAILSS be allowed. The latter two will be made parties to the application and can, of course, be heard.

10. I direct that affidavits to be filed on behalf of Mr Adams or NAILSS be filed and served on or before Monday, 16 October 1989, and that any affidavits in reply on behalf of the applicant or the Attorney-Genral be filed and served by Monday, 30 October 1989. That is the Monday before the hearing. That gives, then, another two weeks.

11. I will make the costs of today costs in the proceedings.