Transurban City Link Ltd v Allan

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FEDERAL COURT OF AUSTRALIA

Transurban City Link Ltd v Allan [1999] FCA 1723

ADMINISTRATIVE LAW – standing – whether appellant had special interest in the proceedings – whether outcome must affect appellant in order that he have standing – time when standing is considered – whether standing to be considered only as at time of application – whether application frivolous

PRECEDENT – in what circumstances Full Court may decline to follow decision of earlier Full Court.

Melbourne City Link Act 1995 (Vic)
Development Allowance Authority Act 1992 (Cth) ss 93O, 119
Administrative Appeals Tribunal Act 1975 (Cth)

Australian Conservation Foundation Incorporated v Commonwealth of Australia (1980) 146 CLR 493 followed
Re Williams and the Australian Electoral Commission (1995) 38 ALD 366 cited
Alphapharm Pty Ltd v Smith Kline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 cited
McCallum v Federal Commissioner of Taxation (1997) 97 ATC 4509 cited
Nguyen v Nguyen (1990) 169 CLR 245 followed
Chamberlain v The Queen (1983) 72 FLR 1 approved
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 cited
Magman International v Westpac (1991) 32 FCR 1 approved
La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 cited
Boyce v Paddington Borough Council [1903] 1 Ch 109 followed
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 cited
Shop Distributive and Allied Employees Association v  Minister for Industrial Affairs (SA) (1995) 183 CLR 552 cited
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 followed
North Coast Environment Council Inc v Minister for Natural Resources (1994) 55 FCR 492 cited
Re McHattan and Collector of Customs (1977) 18 ALR 154 cited
Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 118 ALR 527 referred to
Broken Hill Pty Ltd v Trade Practices Tribunal (1980) 31 ALR 401 referred to
United States Parole Commission v Geraghty 445 US 388 (1980) considered

TRANSURBAN CITY LINK LIMITED v PETER ALLAN
V 212 OF 1999

BLACK CJ, HILL, SUNDBERG, MARSHALL AND KENNY JJ
10 DECEMBER 1999
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 212 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

TRANSURBAN CITY LINK LIMITED
Appellant

AND:

PETER ALLAN
Respondent

JUDGES:

BLACK CJ, HILL, SUNDBERG, MARSHALL and KENNY JJ

DATE OF ORDER:

10 DECEMBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision appealed from be set aside and in lieu thereof it be ordered that the Respondent’s appeal from the decision of the Administrative Appeals Tribunal commenced by notice dated 9 September 1998 be dismissed with costs.

3.The Respondent pay the Appellant’s costs of the appeal.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 212 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

TRANSURBAN CITY LINK LIMITED
Appellant

AND:

PETER…

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Details
Case
[1999] FCA 1723
Decision Date

CaseChat Overview and Summary

Transurban City Link Ltd appealed to the Court of Appeal against a decision of a single judge who had remitted an application to the Administrative Appeals Tribunal (AAT). The respondent, Allan, had applied to the AAT to review a decision by the Development Allowance Authority (Authority) to issue a certificate to Transurban. Allan argued that the issuance of the certificate would facilitate a project that would adversely affect his property and environment. The primary judge allowed the appeal and remitted the matter to the AAT, holding that Allan had standing to apply for review and that the proceedings were not frivolous. Transurban appealed to the Full Court.

The appeal raised several legal issues, including the criteria for determining whether an applicant has standing to seek administrative review, the timing at which standing must be assessed, and the circumstances under which the Full Court may decline to follow its earlier decisions. The Court considered whether Allan had a sufficient interest in the proceedings, whether the outcome of the proceedings must affect him, and when standing should be evaluated. Additionally, the Court examined whether the proceedings were vexatious and if the Full Court should adhere to its previous rulings.

The Full Court found that Allan had standing to apply for review because he had a sufficient interest in the proceedings, even if the outcome did not directly affect him. The Court held that standing could be assessed at the time the application was made, not just when the administrative decision was issued. The Court also determined that Allan's change of residence, motivated by concerns over the project's impact, did not render the proceedings frivolous. Furthermore, the Court concluded that the Full Court was not bound to follow its earlier decisions and could depart from them if it deemed it appropriate.

The Court allowed the appeal, set aside the primary judge's decision, and dismissed Allan's application with costs. The Court ordered Allan to pay Transurban's costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision appealed from be set aside and in lieu thereof it be ordered that the Respondent’s appeal from the decision of the Administrative Appeals Tribunal commenced by notice dated 9 September 1998 be dismissed with costs.

3. The Respondent pay the Appellant’s costs of the appeal.

Background

Background to the litigation

On the first occasion Transurban was not a party to the appeal. Although, as will be seen, it submits that the facts now before the Court are different from those considered by the Full Court, so that that decision is distinguishable, it submits if the earlier decision is not distinguishable in a relevant way this Court should overrule it. It is for that reason that a bench of five judges of the Court was constituted to hear the present appeal.The background to the present appeal Between January 1996 and January 1997 Mr Allan lived at 2/28 Hooper Street, West Brunswick, 200 metres from the Tullamarine freeway in Melbourne. One end of the City Link Project (“the Project”) commences at the end of that freeway which was widened by the construction of an additional six lanes between the Tullamarine freeway and Mr Allan’s then home. According to Mr Allan the closest portion of the freeway when construction was completed (as it now is) was to be 100 metres from the Hooper Street property. He claimed also to be a member of the Australian Conservation Foundation and concerned about the environmental impact of the City Link Project – presumably the whole of it, including that part close to where he lived. On 12 December 1995 the City Link Act came into operation. It was enabling legislation which provided for the construction and operation of the Project. It was one of a number of conditions precedent to the Agreement for the Melbourne City Link between the State of Victoria, Transurban and others (“the Melbourne City Link Agreement”), which is Schedule 1 to the City Link Act, that certificates be received from the Authority under the Development Allowance Authority Act 1992 (Cth) (“the DAA Act”). See clause 2.7 (d)(iii) of the Scheduled Agreement. Chapter 3 of the DAA Act, which was inserted into that Act in 1994 by Act No 163 of 1994, had as its object the provision of:“tax incentives for genuine private sector investment in publicly accessible infrastructure facilities and related facilities”.(s 93A of the DAA Act). A person could apply to the Authority for the issue of a certificate in relation to a proposed infrastructure borrowing as defined. The Authority was required to satisfy itself that the borrowing was such an infrastructure borrowing. If so satisfied the Authority was required to issue a certificate provided certain limited formal matters were satisfied. It is not suggested by Mr Allan that they were not. However, s 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.” The consequence of a certificate being issued was that interest on the infrastructure borrowings was to be treated as exempt from income tax to the lender, but the borrower was to be denied a deduction for such interest. The intention was to provide an incentive for persons to lend monies for the Project and, presumably, lower the interest rate that would be charged.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BLACK CJ, HILL, SUNDBERG, MARSHALL AND KENNY JJ
Mr Allan then appealed from that decision to a single judge of this Court.The decision appealed from The reasons of the learned primary judge, in setting aside the decision of the Tribunal proceeded upon two separate bases. First, his Honour was of the view that once standing was established as at the time an applicant applied to the Tribunal to review an administrative decision, the applicant gained “an accrued right” to have the decision reconsidered. More broadly, his Honour was of the view that in a case such as the present this right accrued when the person affected by the administrative decision applied to the decision maker (in the present case the Authority) for review of the decision pursuant to a statutory right so to do. If that person applied to the Tribunal to review the decision, he or she retained that accrued right, particularly where the application to the Tribunal was to review a decision which had been confirmed because the Authority refused to reconsider it: cf s 119(4) of the DAA Act. Even if circumstances had changed, as in the present case, after the Tribunal’s jurisdiction had been enlivened, the applicant continued to be entitled to have the Tribunal proceed with the review and to ensure that the decision had been made in accordance with law. It was immaterial whether the outcome of the review could in any way advantage the applicant should he be successful. Secondly, in his Honour’s view Mr Allan in his evidence before the Tribunal had stated that his sole reason for changing residence was to avoid the adverse effects of the road works upon his amenity. He had suffered inconvenience and some financial expense as a result of the change of residence. The Tribunal made no findings on these matters, but according to his Honour the evidence “was not seriously disputed.” However, the Tribunal confined its enquiry to whether he had actually proved special damage, regarding itself as having to consider only whether Mr Allan could gain any advantage from the review or might suffer any disadvantage from it. His Honour held that this approach was wrong. As his Honour said:“Whilst the existence of special damage (in the sense of advantage or disadvantage) might be a significant factor in favour of standing, its absence in the present case does not preclude a finding of sufficient interest.” Although the Tribunal had not dealt with the question whether the proceedings by Mr Allan were vexatious, his Honour was of the view that if Mr Allan’s evidence that the expense and inconvenience of his change of residence arose from the original adverse effects claimed by him in respect of his amenity was accepted, then the change was not sufficiently disconnected from the original interest he had to result in the application to the Tribunal being frivolous or vexatious. His Honour’s ultimate order was to remit the matter to the Tribunal to be determined in accordance with law (which presumably would require it to make findings on the matters raised in the last paragraph). A fair reading of his Honour’s judgment makes it clear that his Honour was of the view that the question of standing should be resolved in Mr Allan’s favour, the application to dismiss on the basis that the proceedings were frivolous should be decided adversely to Transurban and that it was incumbent upon the Tribunal, at last, to embark upon the merits of Mr Allan’s application for review. Writing of the “substantive issue” his Honour said:“Plainly, this matter ought to be disposed of by the AAT at the remitted hearing. Thus, even if there is a substantial contest on the s 119(1) issue on the remitter, it would be most undesirable for the AAT to again endeavour to resolve this matter only on the issue of standing without considering the issues arising under s 93O. That is particularly so when one considers that the outcome of the appellant’s application, if successful, has the potential to have significant consequences, not only for Transurban, but also for persons who are not parties in the present matter.”

Ratio Decidendi

Legal Principle Established

Established by: BLACK CJ, HILL, SUNDBERG, MARSHALL AND KENNY JJ

Full text does not contain this section.