Yu Feng P/L v Qld Dept of Local Govt & Planning & the State of Qld

[1998] QSC 53

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  No.472 of 1998

Before the Hon. Mr Justice Mackenzie

[Yu Feng P/L v Qld Dept of Local Govt & Planning & The State of Qld]

BETWEEN:

YU FENG PTY LTD

(ACN 056 974 844) and
AUSTRALIAN MULTIPLEX CINEMAS PTY LTD
(ACN 059 968 599)

Applicants

AND:

THE CHIEF EXECUTIVE QUEENSLAND
DEPARTMENT OF LOCAL GOVERNMENT
AND PLANNING AND THE STATE OF
QUEENSLAND

First Respondents

AND:

BRISBANE CITY COUNCIL

Second Respondent

AND:

A.M.P ASSET MANAGEMENT
(AUSTRALIA) LTD
(ACN 001 777 891)

Third Respondent

CATCHWORDS:           STATUTES - Interpretation - Operation and Effect of Statutes - Judicial Review Act 1991 s.48 - “person aggrieved” - Local Government (Planning and Environment) Act 1990 ss.1.4,8.2.

Rayjon Properties Pty Ltd v. Director General, Department of Housing Local Government and Planning (1995) 2 Qd.R559 Alphapharm Pty Limited v. SmithKline Beecham (Australia) Pty Limited (1994) 49 FCR 250

Big Country Developments Pty Limited v. Australian Community Pharmacy Authority (1995) 60 FCR 85
Boots Company (Australia) Pty Ltd v. SmithKline Beecham Health Care Pty ltd (1996) 65 FCR 283
Aboriginal Community Benefit Fund Pty Ltd v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494
Pharmacy Restructuring Authority v. Martin (1994) 53 FCR 589
Pharmacy Guild of Australia v. Australian Community Pharmacy Authority (1996) 70 FCR 462.

Counsel:Mr D Gore QC and Mr J Haydon for the applicant

Mr SA McLeod for the first respondent

Mr T Trotter for the second respondent

Mr G Gibson QC for third respondent

Solicitors:Barry & Nilsson for the applicant

Crown Solicitor for the first respondent

Brisbane City Legal Practice for the second respondent

Gadens Lawyers for the third respondent

Date of Hearing:                10 February 1998

JUDGMENT - MACKENZIE J.

Judgment delivered 3 April 1998

This is a motion to dismiss an application for judicial review on the ground that there is no applicant for review who is a “person aggrieved” within the meaning of the Judicial Review Act 1991. The application for statutory order of review and for review and other relief complains about a decision to waive the requirement for an environmental impact statement in respect of a proposed major extension to the Garden City Shopping Centre. The proposed extension is a “designated development” under s.8.2 of the Local Government (Planning and Environment) Act 1990. The applicant seeks the quashing or setting aside of that decision. The application also seeks to review the decision of the Brisbane City Council to approve the notification of conditions in respect of the proposed extension to the shopping centre. The allegation is that that application was not duly made as it did not include an environmental impact statement. It is alleged that this decision is of no force and effect if the decision not to seek such a statement is quashed or set aside. Alternatively it is sought to review the conduct of the Chief Executive of the department and of the Brisbane City Council in respect of the two decisions.

The basis upon which the applicants claimed to be aggrieved by the decision or the conduct is because Yu Feng is the owner of the Sunnybank Plaza Shopping Centre which includes retail, commercial and food outlets as well as 8 cinemas and a food court  and Australian Multiplex Cinemas operates the cinemas there.  The proposal for extension of the Garden City development also includes the construction of cinemas.  It is alleged that the decisions impugned will have economic and social impact on the operation of the Sunnybank Plaza Shopping Centre.  The applicants’ interests will be adversely affected by the decisions.  It is alleged that each of the decisions was taken without assessing the social, economic and cultural conditions affecting the amenity, harmony and sense of community.  Those are the words of the application for review.  From the affidavits, the principal concern appears to be the economic impact on Sunnybank Plaza.  Those issues, it is alleged, are relevant to the site plan and layout, dimensions, floor area and number  of stories of the development.  It is alleged that the issues are significant because of the size of the proposed extension and because they are not covered by any relevant study.  AMP Asset Management Australia Ltd has been joined in the application as a respondent to the application for review on the basis that it is the applicant for the extension of the Garden City Shopping Centre.

It is within that general background that the application to dismiss the application for review under s.48 of the Judicial Review Act must be considered.  The applicants for dismissal relied on the decision of Thomas J in Rayjon Properties Pty Ltd v. Director General, Department of Housing Local Government and Planning (1995) 2 Qd.R 559 in support of the motion. Rayjon bears a striking similarity to the present matter save that there was a right of appeal in Rayjon once the local authority had made its decision to grant approval. Thomas J approached the matter by analysing the legislation governing the making of the decision under attack, considering where the person alleged to be aggrieved stood in relation to the making of the decision and then considered whether its interests were adversely affected by the decision so as to render it a person aggrieved. The analysis of the legislation appears at p.561. It is unnecessary for me to repeat it since I respectfully adopt it as correct. Then (561-2) he said the following:-

“The prescriptions of the Act make it abundantly clear that this preliminary procedure is one between the potential applicant and the Chief Executive Officer of the Department of Housing, Local Government and Planning.  There persons and departments with whom the CEO must consult are prescribed.  No intention can be discerned to convert this preliminary decision process into an invitation to potential objectors to be heard, or to invoke a further adversarial procedure.

These provisions, in my view, afford a plain example of an administrative step imposed upon a potential developer to submit to a procedure and to act in accordance with a decision by the prescribed officer.  It is not a process in which third parties have any stake.  They may be “interested” in the popular sense, but they have no legitimate function or place in this particular determinative process.”

He then observed that ascertaining whether a person was entitled to procedural fairness in administrative procedures may shed light on but did not necessarily answer the broader question, whether the applicant was a person whose interests are adversely affected by the decision.  He later said (p.562):-

“It is true that as a business competitor ---- which competes for the custom of the public in the same general area, it has a greater interest than the ordinary member of the public in seeing its competitor’s application delayed or defeated.  That however is not to the point.  Its interest in the proceeding before the CEO is too indirect.  An interest in hindering a competitor or obtaining a tactical advantage of this kind is not in my view the sort of interest that the law should encourage or protect.  Rayjon has no right to complain of or to challenge the decision of 22 December 1993.  It is not a person aggrieved by the decision.”

As I have previously observed there is no right of appeal against the local authority’s approval in this case.  Does this affect the conclusion that a person in the position of the applicant for review  is not a person aggrieved?  The answer is that the exercise of statutory construction to assist in ascertaining the sufficiency of the interest cannot be differently determined on the basis that a right of appeal on the merits exists in one case but not the other.  While Rayjon is not binding authority unless there are persuasive grounds why it is wrongly decided or is distinguishable on some acceptable basis conflicting decisions should be avoided by my following Rayjon.  On behalf of the respondent to the present motion reliance was placed on comments in Rayjon which, it was submitted, suggested that no interest was relied on except an interest of a commercial competitor to see its rival hindered, frustrated or delayed or to obtain a tactical advantage in requiring the applicant to gather material in an environmental impact statement which may prove to be useful against it in a subsequent appeal on the merits.  It was submitted that the interest relied on by the respondents in the present proceedings was to limit the adverse economic impact of the proposal upon the existing shopping centre and cinemas.  The proceedings were brought to limit the diminution in value of the investment in the shopping centre and cinemas through loss of income due to increased competition.  It was submitted that Rayjon should be confined to its own facts and that the interest upon which the respondents’ proceedings were founded was sufficient to distinguish this case from Rayjon.

It was also submitted that there was a recognised class of cases where the legislative framework set up clear criteria for making the challenged decision and clear objects and purposes to which the decision maker was to have regard in the making of that decision.  Alphapharm Pty Limited v.  SmithKline Beecham (Australia) Pty Limited (1994) 49 FCR 250 and Big Country Developments Pty  Limited v. Australian Community Pharmacy Authority (1995) 60 FCR 85 were said to be examples of this class of case. However it was submitted that the analysis of those authorities in Boots Company (Australia) Pty Ltd v. SmithKline Beecham Health Care Pty Ltd (1996) 65 FCR 283 and Aboriginal Community Benefit Fund Pty Ltd v.  Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494 show that they should be confined in their operation to cases where the statutory scheme makes the economic effects of the decision upon the person claiming to be aggrieved irrelevant to the decision required to be made.

In Alphapharm the party claiming to be aggrieved was a drug company seeking to review a decision to register a drug under the Therapeutic Goods Act 1989 which was likely to result in its market share and price for a similar but not identical drug being reduced, thereby affecting its profits. It was held by the Full Court of the Federal Court that the applicant did not have standing to have the decision reviewed. Davies J and Gummow J separately analysed the structure of the Act relevant to the making of the decision. At p.261 Davies J said the following:-

“The Act is dominated by public interest concerns.  An object is to ensure that drugs which are imported are suitable for use in humans in Australia.  Another object is to ensure that drugs which are suitable are registered or listed and become available in Australia for public use as soon as is practicable: see ss 4 and 17 of the Act.  The Regulations specify times within which certain evaluations must be made and certain applications decided and a remedy in the nature of damages is provided for failure to make certain decisions within the specified time.  And, as I have pointed out, the Act and the Regulations set up a structure including the Australian Drug Evaluation Committee, for the carrying out of the necessary inquiries and for the making of skilled judgments as to the suitability or otherwise of a drug.

In this context, it is difficult to see that the Act would recognise the interest which a competitor may have in delaying or hindering the introduction of the drug onto the market.  Such an interest is not relevant to the process which the Act establishes or to any decision made under the Act.  Such an interest is indeed in conflict with the interests which the Act promotes.

If a decision concerns the affairs of one person alone, other persons may not institute or join in the proceedings merely because it would be to their commercial advantage that the person should not receive a benefit or should suffer a disadvantage.”

Gummow J (272) stressed that it was vital to approach the issues upon a review of the scope and purpose of the Act.  At p.280 he expressed his conclusion in the following terms:-

“... an interpretation of the legislation which treated a third party as a person interested in, in the sense of opposed to, a grant of registration would not sit well with that object of the legislation which is concerned with the timely availability of therapeutic goods, after evaluation by an expert body and pursuant to a “complex and delicate administrative scheme”: cf Block v Community Nutrition Institute 467 US 340 at 348 (1984).”

In Big Country Lindgren held that Big Country had no standing to have a decision allowing a pharmacy to be relocated reviewed where Big Country was the proprietor of the shopping centre where the pharmacy operated but there was no contractual obligation on either side to renew the lease.  Big Country’s interest was described as its commercial interest in maintaining the probability that the pharmacy would continue as tenant in the shopping centre.  It was held that whether a person fits the description of of a “person aggrieved” by an administrative decision is dependent upon the scope and purpose of the statute.  The statutory scheme was intended to achieve the development of an effective and efficient and well distributed pharmacy service in Australia and to promote the principle that it was in the best interests of all Australians that pharmacy numbers be reduced by encouraging pharmacists to either amalgamate or close to reduce the numbers of inefficient pharmacies which were a drain on the government and to strengthen those more viable pharmacies that remained.  The critical passage in the decision is the following (93-4):-

“The private commercial interest of Big Country is not coincidental with the particular public interest described above.  Its interest operates in a different sphere. 

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

Big Country does not qualify as a “person aggrieved” by reason of having an interest coincident with, or embraced by, the interests served by the legislation. Several cases suggest further that these considerations show that Big Country is not a person aggrieved: Alphapharm; Pharmacy Restructuring Authority v Martin at 597; Rayjon Properties Pty Ltd v Department of Housing, Local Government and Planning (Qld) (1994) 85 LGERA 251. These were all cases in which the proprietors of existing businesses claimed to be aggrieved by administrative decisions which permitted a competition to embark upon a course of action which would, according to the respective applicants, damage their commercial interests. In all three cases the applicant’s interest in seeing its rival hindered, frustrated or delayed was held not to be an “interest adversely affected” for the purpose of giving the status of a “person aggrieved” by the decision.”

The reference to Pharmacy Restructuring Authority v. Martin is to (1994) 53 FCR 589 where it was said (597) that the relevant provisions of the statute were not concerned with minimising competition but with reducing the Commonwealth’s financial burden in providing pharmaceutical benefits while maintaining an acceptable level of community service.

In Pharmacy Guild of Australia v. Australian Community Pharmacy Authority (1996) 70 FCR 462 Branson J accepted that Big Country was correctly decided but distinguished it on the basis that it dealt with “quite different circumstances”.  In that case the applicants for review of a decision to approve a pharmacy included pharmacists within a prescribed distance of the site approved, and pharmacists outside that distance.  It was held that the former had standing but (without finally deciding) the latters’ interests were likely to be too remote to give them standing.  Alphapharm and Big Country were distinguished in Boots Co (Australia) Pty Ltd v. SmithKline Beecham Health Care Pty Ltd where there was an application to strike out the statement of claim.  Boots had instituted proceedings against SmithKline alleging that certain representations made in advertising and promotional material concerning its analgesic which competed with Boots’ product were false, misleading or deceptive and contravened the Therapeutic Goods Act.  The basis of the distinction appears in the following paragraph (288-9):-

“The decisions, therefore, with which Alphapharm and Big Country were concerned were made under statutory provisions which laid down clear criteria for the making of such decisions and equally clear objects or purposes to which the decision-maker was to have regard.  In each case the commercial interest of the applicant was irrelevant to the scheme of the provisions and to the statutory object or purpose.  Hence the decision, in each case, that the applicant lacked standing.

This, it seems to me, is an entirely different case.  It is one which well illustrates what is, I think, a clear distinction between a case, on the one hand, where a party claims standing to seek review of an administrative decision and, on the other hand, one where a private person seeks to restrain the commission of an offence.  In the former case, as Alphapharm and Big Country demonstrate, a lack of coincidence between the interest of the party seeking review and the statutory purpose which the decision-maker is required to observe may be crucial to the question of standing.  In the latter case it may well be considerably less so.  In the present case, the decision has of course been made to include Actiprofen in the Register.  Certain indications have been accepted in relation to its inclusion in the Register.  There is an obvious public interest in ensuring that it is not knowingly or recklessly advertised for other indications.  In a sense, no doubt, the prohibition in s.22(5) may be seen as a part of what s.4 refers to as a national system of controls relating to, among other things, the safety of therapeutic goods used in Australia.  Unlike, however, the case where a competitor seeks to intervene in the process of evaluation and registration of a sponsor’s product, it is not easy to see why the nature of the interest or motive of an applicant is particularly relevant where the applicant claims standing to restrain a breach of s.22(5), whether the criterion of standing is described as the suffering of “special damage peculiar to himself” or “having a special interest in the subject matter of the action.”

The distinction is based on the nature of the proceedings in each case and does not cast doubt on the operation of Alphapharm and Big Country in their proper field.

In Aboriginal Community Benefit Fund Pty Ltd v. Batemans Bay Local Aboriginal Land Council an injunction restraining the respondents from contravening the Funeral Funds Act and the Aboriginal Land Rights Act was sought.  It was therefore also concerned with the right of a private litigant to enforce a public right.  Sheller JA (with whom Simos A-JA agreed) explained the basis of distinction in the following passage (511):-

“I do not understand the High Court to say that because the statutory duties are expressed in the language of a prohibition against the doing of certain acts subject to criminal sanction, the standing of a person with a special interest in enforcing them depends upon the prohibition being shown to be one for the benefit or protection of a class of individuals of which the plaintiff is a member.  A sufficient closeness to the subject of litigation may be found in other considerations.

Boots Co (Australia) Pty Ltd v SmithKline Beecham Healthcare Pty Ltd (1996) 65 FCR 282 is a good example of the application of the more flexible principle. In that case the interests the plaintiff asserted in support of its claim based on allegations of infringements of the Therapeutic Goods Act 1989 (Cth) were described by Lehane J (at 387) as, first, a purely commercial interest, lost sales and lost ability to establish a market for its product; secondly, damage to commercial reputation; and, thirdly, an interest, as a drug supplier, in ensuring the credibility of the system of registration and approval provided by the Act. His Honour distinguished an earlier decision of the Full Federal Court in Alphapharm pty ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 and a decision of Lindgren J in Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85 as concerned with statutory provisions which laid down clear criteria for the making of decisions and equally clear objects or purposes to which the decision-maker was to have regard, so that in each case the commercial interest of the applicant was irrelevant, and hence the applicant lacked standing. With respect I agree with this analysis.”

Recognition of a category of cases where the statutory scheme for making a decision involves a structure which is inconsistent with a commercial or financial interest being a relevant consideration in judicial review cases is unaffected by Pharmacy Guild, Boots and Aboriginal Community Benefit Fund v. Batemans Bay Local Aboriginal Land Council. 

The remaining questions are whether the case is materially different in any relevant respect from Rayjon and whether any refinement or development of applicable principles since it was decided makes it appropriate to decline to follow Rayjon.  With respect to the first question there is no material distinction between the facts of Rayjon in the present case.  In particular, the mere fact that in Rayjon there was a right of appeal on the merits, whereas in the present case there is not, cannot affect the question of construction of the statutory provision underlying the decision in Rayjon.  With respect to the second question it is appropriate to start from the position that while Rayjon is not binding, unless there are clear reasons not to follow the previous decision it should not be lightly disregarded in the interests of avoiding conflicting decisions. It should be borne in mind also that what is being sought is reconsideration of a decision not to require an environmental impact statement and in the application the basis of the challenge is framed quite narrowly having regard to the definition of “environment” in s.1.4 of the Local Government (Planning and Environment) Act.  The alleged affectation is linked only to the alleged failure to assess the “social economic and cultural conditions affecting the amenity, harmony and sense of community”.  Framed in that way there is a substantial element of economic self-interest inherent in the application although any attempt merely to delay the project was disavowed.  Both propositions can coexist and may be accepted.  The discussion in Thomas J’s judgment in Rayjon commencing at 560.21 and 562.30 shows that he had both of these aspects of the problem in mind.  In my view no compelling reason has been demonstrated to depart from the reasoning in Rayjon.  Insofar as the application to review the Brisbane City Council’s decision or conduct depends upon the notion that the subsequent decision or conduct is invalid if the Chief Executive’s decision or conduct is flawed, the application for review must fail against it if it cannot proceed against the Chief Executive.  The order is that application No 472 of 1998 be dismissed.  I order the applicants for review to pay the respondents’ costs of and incidental to the notice of motion to be taxed.