case_text: respondent also referred to the decision of the Full Court of this Court in National Crime Authority v A, B and D (1988) 18 FCR 439 (' A, B and D' ) and said that the reasoning in that case was applicable to the case before him. The power of a statutory authority to regulate its own proceedings included as an implied power the more specific power to exclude a particular legal representative. The respondent gave examples of how an examination could be seriously undermined if there was no power to exclude a particular legal representative. He said: 'The absence of a power to preclude a particular legal practitioner from representing a witness could, in some circumstances, seriously undermine the efficacy of an examination. For example, if a lawyer acted improperly in an examination by, for example, prompting a witness or repeatedly obstructing the examination, the absence of the relevant power may seriously prejudice the examination. To take another example, if the legal practitioner was also the subject of the particular investigation, it would be highly undesirable for the legal practitioner to represent the witness, and he/she should not be permitted to do so. These examples highlight the need for the relevant power.' The respondent then turned to the exercise of the relevant discretion. In considering this question he proceeded on the basis that the question was whether there were reasonable grounds to conclude that the representation either 'will or may prejudice the investigation'. He adopted this test in preference to a test formulated in terms of 'will or is likely to prejudice the investigation', although he said that even on the latter test he would exercise the discretion in the same way. The respondent recognised as an important factor to which he must give weight, the applicant's wish to have present the legal representative of his choice. However, he was satisfied that the examination of the applicant would canvass the same subject matter as was raised with B on 9 November 2005. Even accepting, as he did, that there was no suggestion that Ms Boots would deliberately prejudice the investigation he said there were reasonable grounds to conclude that Ms Boots' representation of the applicant at the examination 'will, or may prejudice the investigation'. The essence of his reasoning in that regard is contained in the following two paragraphs: 'Because of Ms Boots' attendance at the previous examination, Ms Boots is aware of the topics and issues that are likely to be covered by counsel assisting in questions and how counsel assisting is likely to proceed. Ms Boots is aware of the answers given by the previous witness, and how the previous witness handled questions. If, consistent with Ms Boots' duty to Mr Bonan, she has taken Mr Bonan to the issues and matters likely to arise, Mr Bonan may be aware of the general nature of the questions that will be asked, and the areas that will be focused on. There is accordingly a real risk that the evidence of Mr Bonan may be influenced by the evidence provided by the previous witness. In my experience in this industry, it is very important that witnesses give evidence unaffected by any evidence given by other witnesses. These comments are by no means a criticism of Ms Boots. I accept Mr Jacobs' submissions that there is no suggestion that Ms Boots will deliberately prejudice the investigation. However, consistent with Ms Boots' duty to Mr Bonan, I accept that there is a real risk that Ms Boots may unintentionally, perhaps subconsciously, reveal to Mr Bonan matters that would in effect forewarn him. This would prejudice the investigation.' After referring to the authorities dealing with the power to restrict publication Beaumont and Einfeld JJ said (at 232): 'In the present case, the Commission was given, expressly, the power to direct that the hearing take place privately. In aid of that power, the Commission was also given, in our opinion, by necessary implication, the power to take all reasonable steps, which when viewed objectively, were necessary in order to ensure that the hearing was conducted privately. The Commission is entitled to regulate its proceedings to avoid a situation arising where the confidentiality of information obtained by it may be exposed to the risk of premature disclosure cf National Crime Authority v A, B and D (1988) 18 FCR 439 at 447-448. This is not to say that the information should always be regarded as confidential. But, in order to conduct a hearing properly, it is necessary that the Commission have the power to prohibit, at least during the hearing itself, the disclosure of information obtained at the hearing. Publication of that material before the conclusion of the hearing could prejudice the effective conduct of the hearing. It follows, in our opinion, that it is proper to imply in the Act a power in the Commission to prevent or restrict the premature publication of evidence given at the hearing; or to put the matter positively rather than negatively, the Commission had the power, by necessary implication, to take all reasonable steps which were necessary to secure a "private", rather than a "public", hearing.' In A, B and D , the Authority ('the Authority') was conducting a special investigation and for that purpose it held a number of hearings. Under the National Crime Authority Act 1984 (Cth) a witness at an examination had a right to be represented by a legal practitioner: s 25(4). A witness was represented by a legal practitioner and that witness's spouse also gave evidence and was represented by the same legal practitioner. It was proposed that the same practitioner would appear for three further witnesses. The Authority decided that the legal practitioner could not appear for the three proposed witnesses and they challenged the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Their challenge was initially successful but failed on appeal to the Full Court of this Court. There is no doubt that the statutory provisions under consideration in A, B and D were quite different from the statutory provisions in this case. There were express provisions providing that hearings were to be held in private and that the Authority could make a non-disclosure direction. There was a provision giving the Authority incidental powers which, at one point in its reasons, the Full Court of this Court described as the 'critical provision': at 447. The offences which were to be the subject of an investigation were serious criminal offences. The Court said (at 446-447): 'A starting point for the consideration of the problem is the nature of the Authority and of its functions. It is concerned with investigating, either generally on its own initiative, or specially on references to it pursuant to ss 13 or 14 of the Act, a wide range of serious criminal activity, or suspected criminal activity, in the community. The powers it has are expressed in wide terms and it is clear that the legislature intended its powers to be extensive and far-reaching. Even without s 19 there could be no doubt, notwithstanding the provisions of s 25(4), that the Authority had power to regulate its own proceedings with a view to ensuring that they were not prejudiced, or exposed to the risk of being prejudiced, by the conduct of any person, whether involved in a hearing before it or otherwise. ... We think that the essential nature of the Authority and the functions with which it has been entrusted, when considered along with s 19 of the Act, lead to the conclusion that the power exists. We also regard s 46(8) as a further factor reinforcing this conclusion. It may seem strange that a provision dealing with meetings of the Authority should be relevant to the problem, but s 25(3) expressly applies s 46 to hearings . ' Lockhart J said that an inspector must have the power 'effectively to regulate and control the investigation which he is conducting' (at 520). His Honour's reasons were closely linked to the statutory provisions under consideration, although he did say (at 522): 'The power created by s 22(1) is expressed in positive terms, namely, the giving of directions about who may be present, and not in negative terms about who may not be present; s 22(2) achieves this to a degree. It seems to me, however, that to sensibly construe s 22(1) requires that the inspector be authorised to direct who may and who may not be present. The express power to give directions about who may be present implies a like power about who may not be present. It may be that the inspector's power to exclude a particular lawyer would exist as being reasonably incidental or ancillary to the proper conduct of the examination even if the specific power conferred by s 22(1) was absent; but it is not necessary to consider this because of the power conferred by s 22(1). ... The Full Court concluded in the A case [National Crime Authority v A (1988) 18 FCR 439] that the National Crime Authority had the power to regulate its own proceedings by excluding a legal practitioner "if it concludes on reasonable grounds and in good faith that to allow the representation either will, or may, prejudice the investigation which it is obliged to carry out pursuant to the terms of its statute". I have reached a similar conclusion with respect to ss 22 and 23 of the Act though, in this case, my preferred test of "will or is likely to" presents a slightly higher barrier than "will, or may"; but the difference in practical application will depend on judicial approach to the facts of the particular case. In my view, the differences between the two Acts and the basis of the power being s 22(1) coupled with an abuse of power under s 23(1), as opposed to the broader policy considerations relied on in the A case, lead to this result.' The decisions in A, B and D and Bell were referred to with approval by the Queensland Court of Appeal in Re Whiting [1994] 1 Qd R 561. A firm of solicitors was acting for a police officer who was the subject of a complaint under the Criminal Justice Act 1989 (Qld) and for three police officers who were witnesses in the proceeding. The Chairman of the Criminal Justice Commission ruled that the same legal representative would not be authorised by the Commission to represent both the potential witnesses and the officer against whom the complaint was made. An application to the Supreme Court challenging the order was dismissed. The statutory provisions in this case are very general. They may be contrasted with the quite detailed provisions under consideration in cases such as A, B and D and Bell . Nevertheless, I think it is clear that the ABC Commissioner must have the power to regulate and control the conduct of proceedings before him. He can determine when and where an examination will be held and, providing a proper basis exists, he can regulate and control how the examination is to proceed and who may be present. He is charged with the function of conducting an investigation into suspected unlawful conduct and may bring proceedings for a civil penalty in relation to that conduct. He must be taken to have by implication the power to make orders or give directions which will ensure the integrity of the investigation and, to a point, its effectiveness. In my opinion, he has the power to exclude a particular legal practitioner from acting or appearing for an examinee at an examination. It is appropriate for me to consider whether, insofar as the direction is within power, there was a proper basis to exercise the power. The test as formulated in A, B and D is whether the decision-maker 'concludes on reasonable grounds and in good faith that to allow the representation either will, or may, prejudice the investigation which it is obliged to carry out pursuant to the terms of its statute' (at 448). In Bell , Lockhart J said that he favoured a test which presented a slightly higher barrier of 'will or is likely to' prejudice the investigation, although he went on to say that 'the difference in practical application will depend on judicial approach to the facts of the particular case' (at 522). In my respectful opinion, although there is something to be said for a test which presents a slightly higher barrier, the weight of authority is in favour of the test of 'will or may' prejudice the investigation and it is that test which I will apply.


case_outcome: referred to

case_text: reaching that conclusion I acknowledge the force of the respondent's reasoning. In terms of avoiding prejudice to the investigation there is much to be said for a direction which would prevent Ms Boots from assisting the applicant in preparing for the examination. However, I do not think that because a direction preventing a solicitor acting or appearing for an examinee at an examination is justified by reference to the need to avoid prejudice to the investigation that that in turn means that any direction that might avoid prejudice to the investigation is within power. The question is what can be implied from the statutory provisions. In the case of inferior courts or tribunals the test for implying a power is a reasonably demanding one and a court will look carefully at the statutory provisions to discern if the particular power is legally ancillary to some other power which the inferior court or tribunal possesses, or is reasonably required for the purposes of some other such power or powers: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 per Dawson J at 16-17; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19 ; (1999) 198 CLR 435; Medical Board of SA v N, JRP (2006) 93 SASR 546. There is no reason to think that a similar test does not apply in the case of an ABC Commissioner conducting an investigation under the Act. The power to direct that a solicitor not act for a party is a significant power and, whilst it may not be correct to say that a party has a right to be represented by a solicitor of his or her own choice, the Courts have looked carefully at the circumstances before making an order that a solicitor not act for a party: Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831. Courts have made such orders either in the exercise of their inherent jurisdiction (Mr K Mason QC, 'The Inherent Jurisdiction of the Court' (1983) Australian Law Journal 449) or, put another way, their special jurisdiction over solicitors who are officers of the court ( Rakusen v Ellis, Munday & Clarke (supra) per Cozens-Hardy MR at 835) or by reference to a substantive doctrine of law such as the need to protect confidential information. Clearly, the ABC Commissioner does not have such powers and I do not think that there are sufficiently strong indications in the statutory provisions to conclude that there is an implied statutory power to make a direction which goes beyond preventing a solicitor from acting or appearing for an examinee at an examination.


case_title: Re Whiting [1994] 1 Qd R 561

case_text: decisions in A, B and D and Bell were referred to with approval by the Queensland Court of Appeal in Re Whiting [1994] 1 Qd R 561. A firm of solicitors was acting for a police officer who was the subject of a complaint under the Criminal Justice Act 1989 (Qld) and for three police officers who were witnesses in the proceeding. The Chairman of the Criminal Justice Commission ruled that the same legal representative would not be authorised by the Commission to represent both the potential witnesses and the officer against whom the complaint was made. An application to the Supreme Court challenging the order was dismissed.


case_title: Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831


case_title: Stockbridge v Ogilvie (1993) 43 FCR 244

case_text: Stockbridge v Ogilvie (1993) 43 FCR 244, French J followed Bell and in the course of his reasons said (at 254): 'Where one lawyer seeks to represent a number of examinees in the same investigation, it may be thought that there is a risk that without consciously intending any impropriety that lawyer might divulge to one examinee what has passed in the examination of another. The extension of a restriction to all members of a given firm may be controversial: see Wood v National Companies & Securities Commission (1990) 2 WAR 176. However there are matters of judgment and assessment involved. It is of course, not the role of the ASC to supervise the lawyer-client relationships of those who appear before it in s 19 examinations. It is only where a conflict of interest has some actual or potential impact on the investigative process that a direction based on such a concern would be within power.' In Gangemi v Australian Securities and Investment Commission [2003] FCA 494 ; (2003) 129 FCR 284, French J considered whether the Australian Securities and Investment Commission ('the Commission') had the power to give a non-disclosure direction and to direct that solicitors who had acted for other persons the Commission might wish to examine be excluded from the applicants' examinations. He followed Bell and his own decision in Stockbridge v Ogilvie (supra) and held that the Commission had both these powers.


case_outcome: cited

case_text: The "no evidence" ground will not be made out if there is some basis in the evidence for the challenged factual finding. This is so even if the evidence is slight: see VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18] - [19] per Gray, Moore and Weinberg JJ and WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11] - [12] per Wilcox, Marshall and Jacobson JJ. Generally speaking, as the Full Court in WAJS noted (at [12] citing Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150 per Wilcox J) the "no evidence" ground has been treated as a distinct ground of invalidity in "cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact".


case_title: WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139


case_title: Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147


case_text: In any event, as the first respondent submitted, the fourth appellant is a child whose claim was entirely dependent on the claim of the first appellant. Had there been an appearance for her at the hearing to which she was invited, that hearing could have added nothing to her case. It follows that, if there were any jurisdictional error in respect of the fourth appellant's hearing, it could not have made any difference to the outcome of the Tribunal's deliberations. There is ample authority in this Court supporting the proposition that, in such circumstances, matters should not be remitted to the Tribunal for rehearing: see, for example, Kumaraperu v Minister for Immigration and Multicultural Affairs (1999) 382 FCR 381 at 396 per Weinberg J. Accordingly, I would not set aside the Tribunal's decision on this account. 50 Also at the hearing of the appeal on 22 February 2007, the appellants asserted that they had handed some documents to the Tribunal relevant to the first appellant's medical condition and that some of these documents had not been referred to by the Tribunal in making its decision. They also made a claim concerning the first appellant's receipt of the letter that the Tribunal sent to them granting an extension of time. 51 The documents that the appellants said they gave the Tribunal and to which the Tribunal did not refer are the contested documents: see [23] above. Ms White has deposed that she did not find them on the relevant Tribunal file when she searched it recently. There is no mention of them in the Tribunal's very detailed reasons, and they do not appear in this Court's or the Federal Magistrates Court's files. The contested documents were not the subject of any ground for judicial review in the Federal Magistrates Court. They were also not the subject of any ground of appeal in this Court. The appellants have not sought leave to amend their grounds of appeal or to rely on fresh evidence, and any application to do so would be bound to fail. The appellants advance no explanation as to why this new ground and accompanying evidence was not raised earlier. The Federal Magistrate's reasons for judgment record that: "[w]hen invited to make oral submissions to the Court, the applicant husband indicated that he would rely on his written submissions". Contrary to his Honour's statement, the appellants claimed that they raised the issue before him and he ignored it. There is, however, no ground of appeal challenging his Honour's disregard of the matter. In the absence of any evidence supporting the appellants, I reject their contention. 52 In any event, as the first respondent points out, the contested documents would not take the matter further. They do not provide evidence of an opinion that the first appellant's ability to give evidence was impaired by his medical condition and, relevantly demonstrate any jurisdictional error in the Tribunal's contrary finding, which was based on its own observations. 53 Finally, the first appellant's submission as to his receipt of the letter granting an extension is not supported by admissible evidence and is not within a ground of appeal. Furthermore, ss 441C and 441A (4) of the Act , referred to above, provides a sufficient answer to this complaint. The letter was sent to the last residential address provided by the appellants in connection with the review.


case_text: Ms Eastman on behalf of the applicant submitted , inter alia , that: a. the majority of the applicant's constituents are people with disabilities who are resident in the Maryborough and Hervey Bay areas of Queensland, and who have the requisite interest associated with the actions of the respondent in the provision of goods and services within the Hervey Bay area b. the applicant is an aggrieved person within the meaning of s 46P(2) HREOC Act c. HREOC's acceptance of the complaint would indicate that HREOC had accepted that the applicant was a person who could make a complaint for the purpose of s 46P(2) HREOC Act, and the respondent did not challenge that decision by way of judicial review under the ADJR Act d. once a decision was made by the President of HREOC to terminate the applicant's complaint pursuant to s 46PH(1) HREOC Act the applicant became an "affected person" as defined in s 3 HREOC Act. There is no requirement for the purpose of making an application to the Court that the applicant re-establish that it is an aggrieved person after the complaint was accepted by the Commission and investigated by the President. The applicant cites two decisions of the Federal Magistrates Court, Stokes v Royal Flying Doctor Service [2003] FMCA 164 and Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 , in support of this proposition. "Person aggrieved" - relevant principles


case_text: Defining private rights for this purpose is a distinct challenge (note Heydon JD "Injunctions and Declarations" in Stein LA (ed) Locus Standi (Law Book Company, 1979) at 38-39). Traditionally they have included proprietary and financial interests (Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Nicholson J in Allan v Development Allowance Authority (1998) 80 FCR 583 at 598). The distinction between rights which are "private rights" enabling commencement of proceedings by way, for example, of declaratory and injunctive relief, and "public rights" the enforcement of which lay at the feet of the Attorney-General, has however blurred over time to permit individuals to bring proceedings where the individual suffers special damage peculiar to himself or herself from the interference with the public right: Boyce [1903] 1 Ch at 114. Although this principle has received recognition in Australian law note for example comments of Gavan Duffy CJ, Starke and Evatt JJ in Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50 at 52; Mason J in Robinson v Western Australian Museum (1977) 138 CLR 238 at 327; Australian Conservation Foundation 146 CLR per Gibbs J at 526-527, Stephen J at 537-538 and Mason J at 547; Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 per Gibbs CJ at 35-36, Davis [1986] HCA 66 ; (1986) 68 ALR 18; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia [1995] HCA 11 ; (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority 80 FCR per Wilcox J at 586-87, Nicholson J at 598 giving effect to the principle raises difficulties in itself. (A useful summary of cases, and difficulties of application of relevant principles, as existed at the time can be found in Heydon in Stein (1979) at 38-40, 45-54.)


case_text: Whether a statute confers upon individuals personal rights and standing to enforce those rights are matters to be determined on the construction of the statute, by reference to the subject, scope and purpose of that statute: Allan v Transurban City Link Ltd [2001] HCA 58 ; (2001) 208 CLR 167 at 174; cf McInerney J in Grand Central Car Park [1969] VR at 74, Kaye and Marks JJ in Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 at 486 and Atkin LJ in Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 841. This case 33 Both the applicant and the Commissioner have submitted that in this case the issue of standing is to be determined on the proper construction of the HREOC Act and the DD Act , and not by reference to principles of general law. In my view this is correct. Findings supporting this submission were made by the Full Court in Stephenson v Human Rights and Equal Opportunity Commission 68 FCR at 296 in relation to provisions of the HREOC Act and the Sex Discrimination Act 1985 (Cth) Further, I note observations of the High Court in Allan v Transurban City Link Ltd 208 CLR at 174 that: A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute.


case_title: Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250


case_title: Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50


case_text: Third, in order for a person to be "aggrieved" the test is objective, not subjective. A person does not qualify merely because he or she feels aggrieved by the conduct. He or she, in the judgment of the Court, must, in truth, be aggrieved by that conduct ( Cameron v Human Rights and Equal Opportunity Commission 46 FCR at 515) and not merely have an intellectual or emotional concern in the subject matter of the proceedings ( Australian Conservation Foundation 146 CLR at 547-548). The words do not include "a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests": Attorney-General (Gambia) v N'Jie [1961] AC 617 at 634, Gibbs CJ in Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168 at 185. It is not sufficient that a person voices a particular concern and regards the actions of another as injurious to the object of that concern (Stephen J in Australian Conservation Foundation 146 CLR at 539, Gibbs CJ in Onus v Alcoa of Australia 149 CLR at 37). 44 Fifth, traditionally the term "person aggrieved" should not be interpreted narrowly: N'Jie [1961] AC at 634 , Koowarta 153 CLR at 185, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437; Ogle v Strickland (1987) 13 FCR 306 (especially Fisher J at 307-308 and Lockhart J at 314-315). Further, as Gibbs CJ said in Onus v Alcoa of Australia Ltd 149 CLR at 36 in relation to whether a person has a "special interest" sufficient to sustain litigation, The rule is obviously a flexible one since, as was pointed out in [ Australian Conservation Foundation ], the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.


case_outcome: applied

case_text: The traditional approach to standing in matters involving the enforcement of statutes was that while interference with private rights could be asserted by individuals, public rights could only be asserted by the Attorney-General representing the public, either in the name of the Attorney or at the relation of some complainant: Boyce v Paddington Borough Council [1903] 1 Ch 109, Gouriet v Attorney-General [1977] UKHL 5 ; [1978] AC 435; Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1 ; (1980) 146 CLR 493, Davis v Commonwealth [1986] HCA 66 ; (1986) 68 ALR 18 per Gibbs CJ at 35-36; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 ; (1998) 194 CLR 247 at 261. As observed by Mason J in Australian Conservation Foundation 146 CLR at 547-8: Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests...and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v Western Australian Museum [1977] HCA 46 ; (1977) 138 CLR 283 at 327-328: "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". 24 Defining private rights for this purpose is a distinct challenge (note Heydon JD "Injunctions and Declarations" in Stein LA (ed) Locus Standi (Law Book Company, 1979) at 38-39). Traditionally they have included proprietary and financial interests (Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Nicholson J in Allan v Development Allowance Authority (1998) 80 FCR 583 at 598). The distinction between rights which are "private rights" enabling commencement of proceedings by way, for example, of declaratory and injunctive relief, and "public rights" the enforcement of which lay at the feet of the Attorney-General, has however blurred over time to permit individuals to bring proceedings where the individual suffers special damage peculiar to himself or herself from the interference with the public right: Boyce [1903] 1 Ch at 114. Although this principle has received recognition in Australian law note for example comments of Gavan Duffy CJ, Starke and Evatt JJ in Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50 at 52; Mason J in Robinson v Western Australian Museum (1977) 138 CLR 238 at 327; Australian Conservation Foundation 146 CLR per Gibbs J at 526-527, Stephen J at 537-538 and Mason J at 547; Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 per Gibbs CJ at 35-36, Davis [1986] HCA 66 ; (1986) 68 ALR 18; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia [1995] HCA 11 ; (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority 80 FCR per Wilcox J at 586-87, Nicholson J at 598 giving effect to the principle raises difficulties in itself. (A useful summary of cases, and difficulties of application of relevant principles, as existed at the time can be found in Heydon in Stein (1979) at 38-40, 45-54.) 25 Further, it is clear that legislation may create personal statutory rights which can be enforced by an individual in a Court of law: Wool Sliping and Scouring Co Ltd v Central Wool Committee [1920] HCA 21 ; (1920) 28 CLR 51 per Knox CJ at 61-62; Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 at 76; SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 246, Dajon Investments Pty Ltd v Talbot [1969] VR 603 at 613, Australian Conservation Foundation 146 CLR at 537, 542-544; Re East, ex parte Nguyen [1998] HCA 73 ; (1998) 196 CLR 354. As Stephen J observed in Australian Conservation Foundation 146 CLR at 541, referring to s 52 Trade Practices Act 1974 (Cth): statutes may of course confer standing in express terms...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. (cf Gibbs J at 532) 27 The respondent made written submissions to the following effect: a. the applicant is doing nothing other than attempting to enforce the public law as enacted by the provisions of the DD Act and the Disability Standards b. there is no right subsisting for the benefit of the applicant or its members personally that is sought to be asserted through this litigation c. the application by the applicant is one to assert the effect of the public law of the Commonwealth and the applicant therefore faces the difficulty in relation to standing as the application is a bare attempt to assert a public right or duty: Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. The applicant has no special interest or private right asserted by the litigation, and there is no statutory basis providing standing in respect of the complaint: Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd [2000] HCA 11 ; (1999) 200 CLR 591 d. no relator action is brought in the name of the Attorney-General at the applicant's request that such proceeding be undertaken: Farley & Lewers Ltd v AG [1963] NSWR 1624 e. this is not a case where the interference with a public right is such that the applicant suffers special damage peculiar to itself from the interference: Boyce [1903] 1 Ch 109 f. the applicant does not have standing to bring the prosecution. Accordingly, the complaint does not disclose a reasonable cause of action and should be struck out: Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. 28 The applicant submitted in summary: a. the issue of standing to commence an action under the HREOC Act or the DD Act is to be determined on the proper construction of those Acts, not by reference to provisions of other enactments or common law principles: Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 b. given that the legislation is for the benefit of a burdened class of the public, in the event of ambiguity the legislation should receive a beneficial interpretation: Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481 c. contravention of a standard may be cause for complaint under s 32 DD Act d. section 46P(2) HREOC Act defines who may lodge a complaint under the HREOC Act. The section contemplates a complaint by an "aggrieved person" on the basis of "alleged unlawful discrimination" e. the provisions of the HREOC Act and the DD Act make it plain that they confer private rights with respect to "unlawful discrimination" as defined in s 3 HREOC Act f. the proceedings in the Court involve a determination of the allegations of unlawful discrimination as set out in the complaint, and are circumscribed by the complaint which was terminated by the President g. the applicant's complaint concerns ss 31 and 32 DD Act , and the terms of the complaint and the proceedings before the Court raise the issue of a contravention of the Disability Standards h. the HREOC Act operates to allow complaints to be made about non-compliance with the Disability Standards. Section 46P(1) HREOC Act creates a private right to make a complaint based on s 32 i. the material clearly identifies a dispute between the applicant and the respondent, namely the failure on the part of the respondent to comply with the Disability Standards j. Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493 is not relevant in this matter because the High Court found that the provisions of the relevant legislation in that case did not create private rights k. the approach taken by the High Court in Truth About Motorways [2000] HCA 11 ; 200 CLR 591 confirms that the provisions of the HREOC Act and the DD Act permit the applicant to proceed in this Court. 30 In this case, the respondent has drawn an analogy between the applicant's claim and the difficulties faced by the Foundation in Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, which was found by the High Court to have no special interest or private right to sustain proceedings. In my view however the relevant legislation in Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493 was very different to that in this case. A key difference was summarised by Stephen J in Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, where his Honour observed that, with reference to the relevant legislation and legislative instruments in that case, ...the subject matter of the [Environmental] Procedures is such as to suggest that the appellant has no standing to enforce compliance with them. They are not a code of procedure, such as is familiar in town planning legislation, designed to ensure that those who are likely to be affected by the grant of some permit or the rezoning of some land are given a right to object and to have their objection heard and determined . (at 544) (emphasis added) (cf Gibbs J at 532) 41 Third, in order for a person to be "aggrieved" the test is objective, not subjective. A person does not qualify merely because he or she feels aggrieved by the conduct. He or she, in the judgment of the Court, must, in truth, be aggrieved by that conduct ( Cameron v Human Rights and Equal Opportunity Commission 46 FCR at 515) and not merely have an intellectual or emotional concern in the subject matter of the proceedings ( Australian Conservation Foundation 146 CLR at 547-548). The words do not include "a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests": Attorney-General (Gambia) v N'Jie [1961] AC 617 at 634, Gibbs CJ in Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168 at 185. It is not sufficient that a person voices a particular concern and regards the actions of another as injurious to the object of that concern (Stephen J in Australian Conservation Foundation 146 CLR at 539, Gibbs CJ in Onus v Alcoa of Australia 149 CLR at 37). 44 Fifth, traditionally the term "person aggrieved" should not be interpreted narrowly: N'Jie [1961] AC at 634 , Koowarta 153 CLR at 185, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437; Ogle v Strickland (1987) 13 FCR 306 (especially Fisher J at 307-308 and Lockhart J at 314-315). Further, as Gibbs CJ said in Onus v Alcoa of Australia Ltd 149 CLR at 36 in relation to whether a person has a "special interest" sufficient to sustain litigation, The rule is obviously a flexible one since, as was pointed out in [ Australian Conservation Foundation ], the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation. 51 Eleventh, there are a number of cases where incorporated associations have sought to commence proceedings for breach of legislation in the environmental and human rights contexts. Traditionally, courts have tended to apply principles as to standing strictly and have frequently found that such organisations do not have an interest in the litigation, either because the association does not have a special interest in enforcing the relevant public right ( Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Central Queensland Speleological Society v Central Queensland Cement (No 1) [1989] 2 Qd R 512) or because the association is not a "person aggrieved" for the purposes of the relevant legislation ( Right To Life 50 FCR 56, Defence Coalition against RCD 74 FCR at 153). In a number of cases however the Court has held that the relevant association did have standing as a "person aggrieved" ( North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580, National Trust of Australia [1976] VR 592, Manuka [1998] ACTSC 86). Consideration and findings 53 It is clear in this case that the complainant does have an intellectual or emotional concern in the subject matter of the proceedings. I accept that the purpose of the applicant is to ensure that all members of the Hervey Bay community have access to all premises and facilities in the region. However merely incorporating an association and giving voice to such objects is not sufficient to create standing, or to establish that the association is a "person aggrieved": Australian Conservation Foundation 146 CLR at 530, Right to Life 56 FCR at 67, 77. 55 Before me, Mr Fleming on behalf of the respondent submitted that the applicant represented a general body of people, which might include people without a disability but with a genuine concern as to disability, and that this does not give the applicant a greater interest in the matter than anyone else. Mr Fleming cites Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493 in support of this submission. There is a distinction between the case before me and such cases as Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Right to Life 56 FCR 50, Speleological Society [1989] 2 Qd R 512 and Defence Coalition against RCD 74 FCR 142, namely that in each of those cases it was clear that the members of the association had no more interest in the proceedings - be they concerning the establishment of a resort in Central Queensland, abortion drugs, bat rookeries or rabbit calicivirus disease - than ordinary members of the public. In this case, it appears that the applicant was incorporated to represent people who have an interest in, inter alia , accessing public transport in the Hervey Bay region, and it further appears that it does represent some people who live in the Hervey Bay region and some people who are disabled and who may be aggrieved by non-compliance with the Disability Standards in that region. Potentially, for example, those members who are both disabled and live in the Hervey Bay region have an interest in these proceedings more than ordinary members of the public. 60 Third, in any event I am not persuaded that the possible interests of the members of the applicant in this case are sufficient to distinguish this case from the general body of law represented by such cases as Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Right to Life 56 FCR 50, Speleological Society [1989] 2 Qd R 512 and Defence Coalition against RCD 74 FCR 142 . I note that the nature of the membership of the association was taken into consideration in Manuka [1998] ACTSC 86 where Higgins J held that the complainant had standing as an aggrieved person because each of its members would have a real interest in the subject matter of the decisions . However in this critical respect Manuka [1998] ACTSC 86 is immediately distinguishable from the case before me. The evidence here does not disclose how many of the members of the applicant are people with disabilities or who live in the Hervey Bay region, or both. It is quite possible - indeed likely given that the applicant contends that the majority of its members have an interest associated with the actions of the respondent - that some of its members are neither disabled nor live in the Hervey Bay region. 63 Further, although of somewhat debatable significance (note comments of Lockhart J in Right to Life 56 FCR at 253), unlike in the North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580 and National Trust of Australia (Vic) [1976] VR 592, there is no evidence before me that the applicant in this case is considered to be a peak body representing the interests of the disabled in the Hervey Bay region of Queensland, or that the applicant has been recognised by government as a body representing the concerns of the disabled in the Hervey Bay region of Queensland or had participated in official government decision-making processes. Further, while I note from correspondence attached to the affidavit of Mr Robin Andrew King sworn 8 November 2005 that the respondent has acknowledged the applicant's interest in bus shelter infrastructure in the region and sought the input of the applicant and its members (annexure RK 3), and that the Disability Standards require, inter alia , that a provider must consult with "passengers with disabilities who use their service, or with organisations representing people with disabilities, about any proposal for equivalent access" (cl 33.2 Disability Standards), it is difficult to characterise the conduct of the respondent as being anything more than a willingness to consult an organisation which was willing to provide information. In this sense, a comparison may be drawn with the consultation with the Foundation in Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. Accordingly, I do not find comparisons with North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580 or the National Trust of Australia (Vic) [1976] VR 592 cases of assistance in these proceedings.


case_text: The traditional approach to standing in matters involving the enforcement of statutes was that while interference with private rights could be asserted by individuals, public rights could only be asserted by the Attorney-General representing the public, either in the name of the Attorney or at the relation of some complainant: Boyce v Paddington Borough Council [1903] 1 Ch 109, Gouriet v Attorney-General [1977] UKHL 5 ; [1978] AC 435; Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1 ; (1980) 146 CLR 493, Davis v Commonwealth [1986] HCA 66 ; (1986) 68 ALR 18 per Gibbs CJ at 35-36; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 ; (1998) 194 CLR 247 at 261. As observed by Mason J in Australian Conservation Foundation 146 CLR at 547-8: Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests...and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v Western Australian Museum [1977] HCA 46 ; (1977) 138 CLR 283 at 327-328: "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".


case_text: The traditional approach to standing in matters involving the enforcement of statutes was that while interference with private rights could be asserted by individuals, public rights could only be asserted by the Attorney-General representing the public, either in the name of the Attorney or at the relation of some complainant: Boyce v Paddington Borough Council [1903] 1 Ch 109, Gouriet v Attorney-General [1977] UKHL 5 ; [1978] AC 435; Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1 ; (1980) 146 CLR 493, Davis v Commonwealth [1986] HCA 66 ; (1986) 68 ALR 18 per Gibbs CJ at 35-36; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 ; (1998) 194 CLR 247 at 261. As observed by Mason J in Australian Conservation Foundation 146 CLR at 547-8: Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests...and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v Western Australian Museum [1977] HCA 46 ; (1977) 138 CLR 283 at 327-328: "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". 24 Defining private rights for this purpose is a distinct challenge (note Heydon JD "Injunctions and Declarations" in Stein LA (ed) Locus Standi (Law Book Company, 1979) at 38-39). Traditionally they have included proprietary and financial interests (Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Nicholson J in Allan v Development Allowance Authority (1998) 80 FCR 583 at 598). The distinction between rights which are "private rights" enabling commencement of proceedings by way, for example, of declaratory and injunctive relief, and "public rights" the enforcement of which lay at the feet of the Attorney-General, has however blurred over time to permit individuals to bring proceedings where the individual suffers special damage peculiar to himself or herself from the interference with the public right: Boyce [1903] 1 Ch at 114. Although this principle has received recognition in Australian law note for example comments of Gavan Duffy CJ, Starke and Evatt JJ in Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50 at 52; Mason J in Robinson v Western Australian Museum (1977) 138 CLR 238 at 327; Australian Conservation Foundation 146 CLR per Gibbs J at 526-527, Stephen J at 537-538 and Mason J at 547; Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 per Gibbs CJ at 35-36, Davis [1986] HCA 66 ; (1986) 68 ALR 18; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia [1995] HCA 11 ; (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority 80 FCR per Wilcox J at 586-87, Nicholson J at 598 giving effect to the principle raises difficulties in itself. (A useful summary of cases, and difficulties of application of relevant principles, as existed at the time can be found in Heydon in Stein (1979) at 38-40, 45-54.) 27 The respondent made written submissions to the following effect: a. the applicant is doing nothing other than attempting to enforce the public law as enacted by the provisions of the DD Act and the Disability Standards b. there is no right subsisting for the benefit of the applicant or its members personally that is sought to be asserted through this litigation c. the application by the applicant is one to assert the effect of the public law of the Commonwealth and the applicant therefore faces the difficulty in relation to standing as the application is a bare attempt to assert a public right or duty: Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. The applicant has no special interest or private right asserted by the litigation, and there is no statutory basis providing standing in respect of the complaint: Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd [2000] HCA 11 ; (1999) 200 CLR 591 d. no relator action is brought in the name of the Attorney-General at the applicant's request that such proceeding be undertaken: Farley & Lewers Ltd v AG [1963] NSWR 1624 e. this is not a case where the interference with a public right is such that the applicant suffers special damage peculiar to itself from the interference: Boyce [1903] 1 Ch 109 f. the applicant does not have standing to bring the prosecution. Accordingly, the complaint does not disclose a reasonable cause of action and should be struck out: Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. 42 Fourth, the respondent's submissions concerning this issue have substantially equated "person aggrieved" for the purposes of s 46P HREOC Act with principles articulated in Boyce [1903] 1 Ch 109 and the possession by a complainant of a special interest so as to enforce the public rights created by statute. Clearly, there is a different jurisprudential approach entailed by identifying whether rights created by statute are public rights permitting enforcement by an individual in circumstances only where the individual has a special interest, compared with considering legislation authorising a person aggrieved to enforce statutory rights created by the legislation. Nonetheless, it is certainly the case that Courts have explained the words "person aggrieved" in terms of special interest in the public law sense. So, for example, in Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443 at 447, Bowen CJ and Franki J said the words "a person who is aggrieved": ...are not to be confined to those who can establish that they have a legal interest at stake in the making of the decision. In our view they cover a person who can show a grievance which will be suffered as a result of the decision beyond that of an ordinary member of the public. (see Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 per Ellicott J) (cf United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 527, Ogle v Strickland .)


case_text: The respondent submits further that as s 32 DD Act provides that contravention of disability standards is unlawful , public rights are created. However the fact that legislation provides that conduct is "unlawful" does not of itself mean that exclusively public rights of enforcement exist in relation to that legislation. There is an extensive body of law which provides that simply because a statute deems that certain actions are required by law, and failure to comply is unlawful even to the extent of prescribing a penalty, it does not mean that personal actions are therefore excluded (note for example comments of Atkin LJ in Phillips [1923] 2 KB 832; Groves v Lord Wimborne [1898] 2 QB 402 especially at 415-416; Britannic Merthyr Coal Company Ltd v David [1910] AC 74; Knox CJ, Isaacs, Gavan Duffy and Rich JJ in Mallinson v The Scottish Australian Investment Company Ltd [1920] HCA 51 ; (1920) 28 CLR 66 at 70-72; Potter v Ferguson [1979] 1 NSWLR 364 at 372; Toohey J in University of Newcastle v Chopra [1989] HCA 27 ; (1989) 85 ALR 321 at 343; Campbell v University of New South Wales (1992) 44 IR 56 at 68-69; Gooley v Westpac Banking Corporation (1995) 129 ALR 628 at 648; "GS" v News Ltd (1998) Aust Torts Reports 81-466 at 64,906). In all cases, notwithstanding the existence of other remedies (such as penalties), whether personal rights of action exist will depend on the construction of the statute itself.


case_text: In contrast, in the case before me the HREOC Act and the DD Act (including the Disability Standards formulated pursuant to s 31) provide a scheme which allows "a person aggrieved" by alleged unlawful discrimination - including, as I have already noted, conduct deemed unlawful by s 32 DD Act - to lodge a complaint with HREOC (s 46P HREOC Act); and in the event that the complaint is terminated, a person affected by the termination to make application to the Federal Court or the Federal Magistrates Court (s 46PO HREOC Act). Significantly, the HREOC Act also creates a specific structure sanctioning applications to the Court for remedies where the Court is satisfied that there has been unlawful discrimination, including payment of damages by the respondent, employment or re-employment an applicant, an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination as is sought in this case (s 46PO(4) HREOC Act). Indeed the point of the statutory scheme as constituted in this case by the HREOC Act and the DD Act is to make laws with respect to discriminatory conduct, and to allow those who are aggrieved by discriminatory conduct, personal rights to seek redress in respect of such conduct. To adopt the language of the majority of the High Court in Re East, ex parte Nguyen 196 CLR at 365, repeated in Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 at 96, The elaborate and special scheme...was plainly intended by the Parliament to provide the means by which a person aggrieved by a contravention ... might obtain a remedy, and thus was regarded by Parliament as fulfilling Australia's treaty obligations, bearing always in mind the legal structure and system which formed the context in which the [legislation] was to operate. (That those comments were in respect of the legislation as it stood prior to amendments, and the removal of provisions from the HREOC Act into the DD Act and other statutes, does not in any way minimise their relevance. As observed, in my view correctly, by Nicholson J in Bropho v State of Western Australia [2004] FCA 1209 at [26] - [29] and [51]-[52], they are equally applicable to the scheme as it presently exists.)


case_title: Campbell v University of New South Wales (1992) 44 IR 56


case_outcome: considered

case_text: Eleventh, there are a number of cases where incorporated associations have sought to commence proceedings for breach of legislation in the environmental and human rights contexts. Traditionally, courts have tended to apply principles as to standing strictly and have frequently found that such organisations do not have an interest in the litigation, either because the association does not have a special interest in enforcing the relevant public right ( Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Central Queensland Speleological Society v Central Queensland Cement (No 1) [1989] 2 Qd R 512) or because the association is not a "person aggrieved" for the purposes of the relevant legislation ( Right To Life 50 FCR 56, Defence Coalition against RCD 74 FCR at 153). In a number of cases however the Court has held that the relevant association did have standing as a "person aggrieved" ( North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580, National Trust of Australia [1976] VR 592, Manuka [1998] ACTSC 86). Consideration and findings 55 Before me, Mr Fleming on behalf of the respondent submitted that the applicant represented a general body of people, which might include people without a disability but with a genuine concern as to disability, and that this does not give the applicant a greater interest in the matter than anyone else. Mr Fleming cites Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493 in support of this submission. There is a distinction between the case before me and such cases as Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Right to Life 56 FCR 50, Speleological Society [1989] 2 Qd R 512 and Defence Coalition against RCD 74 FCR 142, namely that in each of those cases it was clear that the members of the association had no more interest in the proceedings - be they concerning the establishment of a resort in Central Queensland, abortion drugs, bat rookeries or rabbit calicivirus disease - than ordinary members of the public. In this case, it appears that the applicant was incorporated to represent people who have an interest in, inter alia , accessing public transport in the Hervey Bay region, and it further appears that it does represent some people who live in the Hervey Bay region and some people who are disabled and who may be aggrieved by non-compliance with the Disability Standards in that region. Potentially, for example, those members who are both disabled and live in the Hervey Bay region have an interest in these proceedings more than ordinary members of the public. 60 Third, in any event I am not persuaded that the possible interests of the members of the applicant in this case are sufficient to distinguish this case from the general body of law represented by such cases as Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Right to Life 56 FCR 50, Speleological Society [1989] 2 Qd R 512 and Defence Coalition against RCD 74 FCR 142 . I note that the nature of the membership of the association was taken into consideration in Manuka [1998] ACTSC 86 where Higgins J held that the complainant had standing as an aggrieved person because each of its members would have a real interest in the subject matter of the decisions . However in this critical respect Manuka [1998] ACTSC 86 is immediately distinguishable from the case before me. The evidence here does not disclose how many of the members of the applicant are people with disabilities or who live in the Hervey Bay region, or both. It is quite possible - indeed likely given that the applicant contends that the majority of its members have an interest associated with the actions of the respondent - that some of its members are neither disabled nor live in the Hervey Bay region. 66 However in this case the application currently before me specifically sought orders as to the standing of the applicant. Further, the applicant has not disputed the appropriateness of a determination of whether it is aggrieved in the context of the substantive proceedings. Indeed, the parties had the opportunity to put their cases on affidavit, and opportunity over the course of a hearing over one day to make their submissions. To adopt the language of de Jersey J in Speleological Society [1989] 2 Qd R at 535, there appears to be: no particular deficiency in the manner of the presentation of the evidence going to standing... There is, in short, no reason for thinking that given more time the (applicant) would mount a case on standing significantly different...


case_text: The applicant submitted in summary: a. the issue of standing to commence an action under the HREOC Act or the DD Act is to be determined on the proper construction of those Acts, not by reference to provisions of other enactments or common law principles: Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 b. given that the legislation is for the benefit of a burdened class of the public, in the event of ambiguity the legislation should receive a beneficial interpretation: Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481 c. contravention of a standard may be cause for complaint under s 32 DD Act d. section 46P(2) HREOC Act defines who may lodge a complaint under the HREOC Act. The section contemplates a complaint by an "aggrieved person" on the basis of "alleged unlawful discrimination" e. the provisions of the HREOC Act and the DD Act make it plain that they confer private rights with respect to "unlawful discrimination" as defined in s 3 HREOC Act f. the proceedings in the Court involve a determination of the allegations of unlawful discrimination as set out in the complaint, and are circumscribed by the complaint which was terminated by the President g. the applicant's complaint concerns ss 31 and 32 DD Act , and the terms of the complaint and the proceedings before the Court raise the issue of a contravention of the Disability Standards h. the HREOC Act operates to allow complaints to be made about non-compliance with the Disability Standards. Section 46P(1) HREOC Act creates a private right to make a complaint based on s 32 i. the material clearly identifies a dispute between the applicant and the respondent, namely the failure on the part of the respondent to comply with the Disability Standards j. Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493 is not relevant in this matter because the High Court found that the provisions of the relevant legislation in that case did not create private rights k. the approach taken by the High Court in Truth About Motorways [2000] HCA 11 ; 200 CLR 591 confirms that the provisions of the HREOC Act and the DD Act permit the applicant to proceed in this Court.


case_text: Further, it is clear that legislation may create personal statutory rights which can be enforced by an individual in a Court of law: Wool Sliping and Scouring Co Ltd v Central Wool Committee [1920] HCA 21 ; (1920) 28 CLR 51 per Knox CJ at 61-62; Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 at 76; SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 246, Dajon Investments Pty Ltd v Talbot [1969] VR 603 at 613, Australian Conservation Foundation 146 CLR at 537, 542-544; Re East, ex parte Nguyen [1998] HCA 73 ; (1998) 196 CLR 354. As Stephen J observed in Australian Conservation Foundation 146 CLR at 541, referring to s 52 Trade Practices Act 1974 (Cth): statutes may of course confer standing in express terms...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. (cf Gibbs J at 532)


case_text: The traditional approach to standing in matters involving the enforcement of statutes was that while interference with private rights could be asserted by individuals, public rights could only be asserted by the Attorney-General representing the public, either in the name of the Attorney or at the relation of some complainant: Boyce v Paddington Borough Council [1903] 1 Ch 109, Gouriet v Attorney-General [1977] UKHL 5 ; [1978] AC 435; Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1 ; (1980) 146 CLR 493, Davis v Commonwealth [1986] HCA 66 ; (1986) 68 ALR 18 per Gibbs CJ at 35-36; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 ; (1998) 194 CLR 247 at 261. As observed by Mason J in Australian Conservation Foundation 146 CLR at 547-8: Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests...and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v Western Australian Museum [1977] HCA 46 ; (1977) 138 CLR 283 at 327-328: "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". 24 Defining private rights for this purpose is a distinct challenge (note Heydon JD "Injunctions and Declarations" in Stein LA (ed) Locus Standi (Law Book Company, 1979) at 38-39). Traditionally they have included proprietary and financial interests (Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Nicholson J in Allan v Development Allowance Authority (1998) 80 FCR 583 at 598). The distinction between rights which are "private rights" enabling commencement of proceedings by way, for example, of declaratory and injunctive relief, and "public rights" the enforcement of which lay at the feet of the Attorney-General, has however blurred over time to permit individuals to bring proceedings where the individual suffers special damage peculiar to himself or herself from the interference with the public right: Boyce [1903] 1 Ch at 114. Although this principle has received recognition in Australian law note for example comments of Gavan Duffy CJ, Starke and Evatt JJ in Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50 at 52; Mason J in Robinson v Western Australian Museum (1977) 138 CLR 238 at 327; Australian Conservation Foundation 146 CLR per Gibbs J at 526-527, Stephen J at 537-538 and Mason J at 547; Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 per Gibbs CJ at 35-36, Davis [1986] HCA 66 ; (1986) 68 ALR 18; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia [1995] HCA 11 ; (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority 80 FCR per Wilcox J at 586-87, Nicholson J at 598 giving effect to the principle raises difficulties in itself. (A useful summary of cases, and difficulties of application of relevant principles, as existed at the time can be found in Heydon in Stein (1979) at 38-40, 45-54.)


case_text: Tenth, to the extent that incorporated associations are bodies corporate which may sue or be sued in their own name, in assessing the interests of a body corporate the interests of its members are arguably irrelevant. So in Victorian Chamber of Manufactures v The Commonwealth [1943] HCA 19 ; (1943) 67 CLR 335 at 343 Starke J, without needing to decide the point, observed that an infringement of the rights of members of an incorporated body does of itself mean that the rights of the incorporated body are infringed, or that the incorporated body has standing to maintain an action (cf Lockhart J in Right to Life 56 FCR at 253 and Nicholson J in Defence Coalition against RCD Inc v Minister for Primary Industries and Energy (1997) 74 FCR 142). This may be distinguished from the position concerning unincorporated associations. A useful illustration of this point in this context is Scully 79 FCR 537, where an unincorporated association commenced proceedings under the Racial Discrimination Act 1975 (Cth) (in its then form), Wilcox J said: I agree with Commissioner Nettlefold that, as Executive Council for Australian Jewry is not a "person" in the eyes of the law, it is incapable of being a 'person aggrieved' within the meaning of s 22(1) of the Racial Discrimination Act . Therefore it is not itself a competent complainant. However, this does not mean its complaint is a nullity. It is necessary to go behind the name and consider whether the juristic persons who constitute the unincorporated association are 'persons aggrieved' by the allegedly unlawful act. If they are, the complaint is competent in law, though not in name, as it was made by them. (at 548) 51 Eleventh, there are a number of cases where incorporated associations have sought to commence proceedings for breach of legislation in the environmental and human rights contexts. Traditionally, courts have tended to apply principles as to standing strictly and have frequently found that such organisations do not have an interest in the litigation, either because the association does not have a special interest in enforcing the relevant public right ( Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Central Queensland Speleological Society v Central Queensland Cement (No 1) [1989] 2 Qd R 512) or because the association is not a "person aggrieved" for the purposes of the relevant legislation ( Right To Life 50 FCR 56, Defence Coalition against RCD 74 FCR at 153). In a number of cases however the Court has held that the relevant association did have standing as a "person aggrieved" ( North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580, National Trust of Australia [1976] VR 592, Manuka [1998] ACTSC 86). Consideration and findings 55 Before me, Mr Fleming on behalf of the respondent submitted that the applicant represented a general body of people, which might include people without a disability but with a genuine concern as to disability, and that this does not give the applicant a greater interest in the matter than anyone else. Mr Fleming cites Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493 in support of this submission. There is a distinction between the case before me and such cases as Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Right to Life 56 FCR 50, Speleological Society [1989] 2 Qd R 512 and Defence Coalition against RCD 74 FCR 142, namely that in each of those cases it was clear that the members of the association had no more interest in the proceedings - be they concerning the establishment of a resort in Central Queensland, abortion drugs, bat rookeries or rabbit calicivirus disease - than ordinary members of the public. In this case, it appears that the applicant was incorporated to represent people who have an interest in, inter alia , accessing public transport in the Hervey Bay region, and it further appears that it does represent some people who live in the Hervey Bay region and some people who are disabled and who may be aggrieved by non-compliance with the Disability Standards in that region. Potentially, for example, those members who are both disabled and live in the Hervey Bay region have an interest in these proceedings more than ordinary members of the public. 59 Second, there is substantial body of authority, to which I have already referred, that the interests of members of a body corporate do not equate with the interests of the body corporate: Victorian Chamber of Manufactures [1943] HCA 19 ; 67 CLR 335, Right to Life 56 FCR 50, Defence Coalition against RCD 74 FCR 142. 60 Third, in any event I am not persuaded that the possible interests of the members of the applicant in this case are sufficient to distinguish this case from the general body of law represented by such cases as Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Right to Life 56 FCR 50, Speleological Society [1989] 2 Qd R 512 and Defence Coalition against RCD 74 FCR 142 . I note that the nature of the membership of the association was taken into consideration in Manuka [1998] ACTSC 86 where Higgins J held that the complainant had standing as an aggrieved person because each of its members would have a real interest in the subject matter of the decisions . However in this critical respect Manuka [1998] ACTSC 86 is immediately distinguishable from the case before me. The evidence here does not disclose how many of the members of the applicant are people with disabilities or who live in the Hervey Bay region, or both. It is quite possible - indeed likely given that the applicant contends that the majority of its members have an interest associated with the actions of the respondent - that some of its members are neither disabled nor live in the Hervey Bay region.


case_text: The power to dismiss an application summarily must be exercised with great caution and only in the clearest of cases to ensure that an applicant is not deprived of its opportunity for trial of its case: Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130. As Dixon J said in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91: The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process. 67 I am mindful of the warnings given in such cases as General Steel Industries [1964] HCA 69 ; 112 CLR 125 and Dey v Victorian Railways Commissioners [1949] HCA 1 ; 78 CLR 62 in relation to the power of the Court to dismiss an application summarily, and that it should be exercised with great caution. I am satisfied however in this case that it is appropriate to grant the orders sought by the respondents in the application currently before me. Notwithstanding its intellectual and emotional concern in the subject matter of the proceedings, the interest of the applicant is no more than that of an ordinary member of the public; the applicant is not affected to an extent greater than an ordinary member of the public, nor would the applicant gain an advantage if successful nor suffer a disadvantage if unsuccessful. To adopt the language of Lockhart J in Right to Life 56 FCR at 68: Wide and liberal though the laws of standing should be, the courts of this country have drawn the line of demarcation between an open system and the requirement of some form of interest in the subject matter of the proceeding other than a mere emotional attachment or intellectual pursuit or satisfaction.


case_outcome: distinguished

case_text: Before me at the hearing, Mr Fleming QC made oral submissions as to whether the applicant, being an incorporated body, could be a person aggrieved by the complaints that have been made. In summary, Mr Fleming QC submitted: a. cases where unincorporated associations have been accorded standing, for example Executive Council of Australian Jewry v Scully (1998) 79 FCR 537, have no application in this case because the applicant is an incorporated entity b. although the applicant is an association of people who have a genuine concern and interest in disability, this does not give them a greater interest in the matter than anyone else, and therefore does not make them "aggrieved" c. no specific act of discrimination is pleaded, and therefore there can be no person "aggrieved". For a person to be aggrieved the person must be prejudicially affected by an act d. the applicant, an incorporated body, cannot be a person aggrieved in this context because a corporation cannot be aggrieved by conduct with respect to bus stops unless the corporation was affected, for example, by a wrong to one of its employees, and that is not the case here. 50 Tenth, to the extent that incorporated associations are bodies corporate which may sue or be sued in their own name, in assessing the interests of a body corporate the interests of its members are arguably irrelevant. So in Victorian Chamber of Manufactures v The Commonwealth [1943] HCA 19 ; (1943) 67 CLR 335 at 343 Starke J, without needing to decide the point, observed that an infringement of the rights of members of an incorporated body does of itself mean that the rights of the incorporated body are infringed, or that the incorporated body has standing to maintain an action (cf Lockhart J in Right to Life 56 FCR at 253 and Nicholson J in Defence Coalition against RCD Inc v Minister for Primary Industries and Energy (1997) 74 FCR 142). This may be distinguished from the position concerning unincorporated associations. A useful illustration of this point in this context is Scully 79 FCR 537, where an unincorporated association commenced proceedings under the Racial Discrimination Act 1975 (Cth) (in its then form), Wilcox J said: I agree with Commissioner Nettlefold that, as Executive Council for Australian Jewry is not a "person" in the eyes of the law, it is incapable of being a 'person aggrieved' within the meaning of s 22(1) of the Racial Discrimination Act . Therefore it is not itself a competent complainant. However, this does not mean its complaint is a nullity. It is necessary to go behind the name and consider whether the juristic persons who constitute the unincorporated association are 'persons aggrieved' by the allegedly unlawful act. If they are, the complaint is competent in law, though not in name, as it was made by them. (at 548) 54 As the cases have shown, it is possible that a body corporate can be the subject of racial discrimination where the association is the subject of discrimination by reason of the race, colour or national or ethnic origin of any associate of that corporation: Scully 79 FCR 537 and Koowarta [1982] HCA 27 ; 153 CLR 168. Similar principles potentially apply in relation to a body corporate which claims discrimination as a result of conduct in breach of the DD Act . So, for example, if an incorporated association representing disabled people was refused a lease of accommodation because of the objects of the association and the attributes of its members, it is arguable that the association itself would be a "person aggrieved" by that conduct. However as Mr Fleming submitted, it is more difficult to establish that the applicant, an incorporated association, is a person aggrieved within the meaning of the HREOC Act and the DD Act where the applicant is complaining about a breach of disability standards associated with accessing public transport. 56 I note that the applicant in its written submissions contended that the majority of its members are people with disabilities who are resident in the Maryborough and Hervey Bay areas of Queensland, and that those members have the requisite interest associated with the actions of the respondent in the provision of goods and services within the Hervey Bay areas. The applicant cited Scully in support of this submission. 57 However to my mind the reference to Scully 79 FCR 537, and the relevance of the possible interests of the members of the applicant, can be answered as follows. 58 First, in my view Scully 79 FCR 537 is of minimal assistance to the applicant. There is a clear and obvious distinction between unincorporated associations, as was the applicant in Scully 79 FCR 537, and incorporated associations such as the applicant. Whilst it is true that incorporated associations are community-based organisations and in many respects, as I have already noted, are not comparable with commercial companies operating for profit-making purposes, nonetheless it would be improper to ignore the status attributed to such associations by the Associations Incorporation Act 1981 (Qld). The applicant is body corporate which needs to establish that it is a person aggrieved in its own right. Unlike the applicant in Scully 79 FCR 537, it is not an unincorporated association which may derive a special interest or status of "person aggrieved" from its members.


case_text: The respondent made written submissions to the following effect: a. the applicant is doing nothing other than attempting to enforce the public law as enacted by the provisions of the DD Act and the Disability Standards b. there is no right subsisting for the benefit of the applicant or its members personally that is sought to be asserted through this litigation c. the application by the applicant is one to assert the effect of the public law of the Commonwealth and the applicant therefore faces the difficulty in relation to standing as the application is a bare attempt to assert a public right or duty: Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. The applicant has no special interest or private right asserted by the litigation, and there is no statutory basis providing standing in respect of the complaint: Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd [2000] HCA 11 ; (1999) 200 CLR 591 d. no relator action is brought in the name of the Attorney-General at the applicant's request that such proceeding be undertaken: Farley & Lewers Ltd v AG [1963] NSWR 1624 e. this is not a case where the interference with a public right is such that the applicant suffers special damage peculiar to itself from the interference: Boyce [1903] 1 Ch 109 f. the applicant does not have standing to bring the prosecution. Accordingly, the complaint does not disclose a reasonable cause of action and should be struck out: Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125


case_title: Gooley v Westpac Banking Corporation (1995) 129 ALR 628


case_title: Gouriet v Attorney-General [1977] UKHL 5 ; [1978] AC 435


case_text: Further, it is clear that legislation may create personal statutory rights which can be enforced by an individual in a Court of law: Wool Sliping and Scouring Co Ltd v Central Wool Committee [1920] HCA 21 ; (1920) 28 CLR 51 per Knox CJ at 61-62; Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 at 76; SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 246, Dajon Investments Pty Ltd v Talbot [1969] VR 603 at 613, Australian Conservation Foundation 146 CLR at 537, 542-544; Re East, ex parte Nguyen [1998] HCA 73 ; (1998) 196 CLR 354. As Stephen J observed in Australian Conservation Foundation 146 CLR at 541, referring to s 52 Trade Practices Act 1974 (Cth): statutes may of course confer standing in express terms...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. (cf Gibbs J at 532) 26 Whether a statute confers upon individuals personal rights and standing to enforce those rights are matters to be determined on the construction of the statute, by reference to the subject, scope and purpose of that statute: Allan v Transurban City Link Ltd [2001] HCA 58 ; (2001) 208 CLR 167 at 174; cf McInerney J in Grand Central Car Park [1969] VR at 74, Kaye and Marks JJ in Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 at 486 and Atkin LJ in Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 841. This case


case_title: Groves v Lord Wimborne [1898] 2 QB 402


case_title: "GS" v News Ltd (1998) Aust Torts Reports 81-466


case_text: Third, in order for a person to be "aggrieved" the test is objective, not subjective. A person does not qualify merely because he or she feels aggrieved by the conduct. He or she, in the judgment of the Court, must, in truth, be aggrieved by that conduct ( Cameron v Human Rights and Equal Opportunity Commission 46 FCR at 515) and not merely have an intellectual or emotional concern in the subject matter of the proceedings ( Australian Conservation Foundation 146 CLR at 547-548). The words do not include "a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests": Attorney-General (Gambia) v N'Jie [1961] AC 617 at 634, Gibbs CJ in Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168 at 185. It is not sufficient that a person voices a particular concern and regards the actions of another as injurious to the object of that concern (Stephen J in Australian Conservation Foundation 146 CLR at 539, Gibbs CJ in Onus v Alcoa of Australia 149 CLR at 37). 43 The nature of the complainant's interest was expressed slightly differently by Gibbs CJ in Koowarta 153 CLR at 183 where his Honour said: The words "person aggrieved" have appeared in many statutes, English and Australian, and their meaning has been discussed in many cases. In the end of course the meaning of the words must depend on the context of the particular statute. It has often been said that the words connote a person with a legal grievance: see In Re Sidebotham (1880) 14 ChD 458 at 465; Buxton v Minister of Housing and Local Government (1961) 1 QB 278 at 285 .The cases under the Trade Marks Acts to which we were referred are consistent with that view; they suggest that a person is "aggrieved" by an act which operates in restraint of what would otherwise have been his legal rights: Powell v Birmingham Vinegar Brewery Co (1894) AC 8 at 10, 12; Attorney-General (NSW) v Brewery Employee's Union of NSW [1908] HCA 94 ; (1908) 6 CLR 469 at 497, 519, 550; Continental Liqueurs Pty Ltd v GF Heublein and Bro Inc [1960] HCA 37 ; (1960) 103 CLR 422 at 427... (I)n determining the meaning of the expression "person aggrieved" in s 24 of the Act it is necessary to have regard to the remedies which such a person may obtain under s 25. These include damages in respect of loss suffered by the person aggrieved by the relevant act and loss of dignity by, humiliation to, or injury to the feelings of, a person aggrieved by the relevant act. If the refusal of consent proves to have been unlawful, Mr Koowarta may be able to obtain damages of that kind. In all these circumstances it seems to me that he is a "person aggrieved" and entitled to maintain the proceedings. 44 Fifth, traditionally the term "person aggrieved" should not be interpreted narrowly: N'Jie [1961] AC at 634 , Koowarta 153 CLR at 185, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437; Ogle v Strickland (1987) 13 FCR 306 (especially Fisher J at 307-308 and Lockhart J at 314-315). Further, as Gibbs CJ said in Onus v Alcoa of Australia Ltd 149 CLR at 36 in relation to whether a person has a "special interest" sufficient to sustain litigation, The rule is obviously a flexible one since, as was pointed out in [ Australian Conservation Foundation ], the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation. 46 Seventh, to the extent that the respondent submits that, as a general proposition, a body corporate cannot be an aggrieved person in the context of this scheme, I do not accept that submission. As noted by Mason J in Koowarta 153 CLR at 236 in considering the issue of standing under the Racial Discrimination Act 1975 (Cth) (in its then form): By virtue of s 22(a) of the Acts Interpretation Act 1901 (Cth) a reference in a statute to a "Person" includes a reference to a body corporate, unless a contrary intention appears. It is submitted that because, generally speaking, human rights are accorded to individuals, not to corporations, "person" should be confined to individuals. But, the object of the Convention being to eliminate all forms of racial discrimination and the purpose of s 12 being to prohibit acts involving racial discrimination, there is a strong reason for giving the word its statutory sense so that the section applies to discrimination against a corporation by reason of the race, colour or national or ethnic origin of any associate of that corporation. 54 As the cases have shown, it is possible that a body corporate can be the subject of racial discrimination where the association is the subject of discrimination by reason of the race, colour or national or ethnic origin of any associate of that corporation: Scully 79 FCR 537 and Koowarta [1982] HCA 27 ; 153 CLR 168. Similar principles potentially apply in relation to a body corporate which claims discrimination as a result of conduct in breach of the DD Act . So, for example, if an incorporated association representing disabled people was refused a lease of accommodation because of the objects of the association and the attributes of its members, it is arguable that the association itself would be a "person aggrieved" by that conduct. However as Mr Fleming submitted, it is more difficult to establish that the applicant, an incorporated association, is a person aggrieved within the meaning of the HREOC Act and the DD Act where the applicant is complaining about a breach of disability standards associated with accessing public transport.


case_title: Mallinson v The Scottish Australian Investment Company Ltd [1920] HCA 51 ; (1920) 28 CLR 66


case_text: I also note other cases where standing as "aggrieved person" has been recognised in relation to corporate bodies, including National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592, Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580, North Coast Environment Council Inc v Minister for Resources (1994) 127 ALR 617 and Manuka Business Association Inc v The Australian Capital Territory Executive and Minister for the Environment, Land and Planning [1998] ACTSC 86. 51 Eleventh, there are a number of cases where incorporated associations have sought to commence proceedings for breach of legislation in the environmental and human rights contexts. Traditionally, courts have tended to apply principles as to standing strictly and have frequently found that such organisations do not have an interest in the litigation, either because the association does not have a special interest in enforcing the relevant public right ( Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Central Queensland Speleological Society v Central Queensland Cement (No 1) [1989] 2 Qd R 512) or because the association is not a "person aggrieved" for the purposes of the relevant legislation ( Right To Life 50 FCR 56, Defence Coalition against RCD 74 FCR at 153). In a number of cases however the Court has held that the relevant association did have standing as a "person aggrieved" ( North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580, National Trust of Australia [1976] VR 592, Manuka [1998] ACTSC 86). Consideration and findings 60 Third, in any event I am not persuaded that the possible interests of the members of the applicant in this case are sufficient to distinguish this case from the general body of law represented by such cases as Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Right to Life 56 FCR 50, Speleological Society [1989] 2 Qd R 512 and Defence Coalition against RCD 74 FCR 142 . I note that the nature of the membership of the association was taken into consideration in Manuka [1998] ACTSC 86 where Higgins J held that the complainant had standing as an aggrieved person because each of its members would have a real interest in the subject matter of the decisions . However in this critical respect Manuka [1998] ACTSC 86 is immediately distinguishable from the case before me. The evidence here does not disclose how many of the members of the applicant are people with disabilities or who live in the Hervey Bay region, or both. It is quite possible - indeed likely given that the applicant contends that the majority of its members have an interest associated with the actions of the respondent - that some of its members are neither disabled nor live in the Hervey Bay region. 61 The decision in Manuka [1998] ACTSC 86 may be further contrasted with, for example, Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc [2006] SASC 114 where Debelle J held that an association of 45 residents in the Whyalla area concerned with environmental issues involving the steel works operated by Onesteel [2006] SASC 114 was nonetheless not a "person interested" for the purposes of the relevant legislation because: It is unable to point to any physical injury or harm. It has no property which is affected by the subject matter of the application. It has no interests of its own which might be affected other than indirectly through those of its members who might be affected. The evidence does not disclose how many of its members are affected. All that is known is that some of its members live, work or own property affected by dust from OneSteel's plant. One possible corollary is that some of its members may not be affected at all. (at [30]) 62 Notwithstanding the different term in consideration in Manuka [1998] ACTSC 86 the language used by his Honour appears to be precisely applicable in the case before me.


case_text: I also note other cases where standing as "aggrieved person" has been recognised in relation to corporate bodies, including National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592, Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580, North Coast Environment Council Inc v Minister for Resources (1994) 127 ALR 617 and Manuka Business Association Inc v The Australian Capital Territory Executive and Minister for the Environment, Land and Planning [1998] ACTSC 86. 51 Eleventh, there are a number of cases where incorporated associations have sought to commence proceedings for breach of legislation in the environmental and human rights contexts. Traditionally, courts have tended to apply principles as to standing strictly and have frequently found that such organisations do not have an interest in the litigation, either because the association does not have a special interest in enforcing the relevant public right ( Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Central Queensland Speleological Society v Central Queensland Cement (No 1) [1989] 2 Qd R 512) or because the association is not a "person aggrieved" for the purposes of the relevant legislation ( Right To Life 50 FCR 56, Defence Coalition against RCD 74 FCR at 153). In a number of cases however the Court has held that the relevant association did have standing as a "person aggrieved" ( North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580, National Trust of Australia [1976] VR 592, Manuka [1998] ACTSC 86). Consideration and findings 63 Further, although of somewhat debatable significance (note comments of Lockhart J in Right to Life 56 FCR at 253), unlike in the North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580 and National Trust of Australia (Vic) [1976] VR 592, there is no evidence before me that the applicant in this case is considered to be a peak body representing the interests of the disabled in the Hervey Bay region of Queensland, or that the applicant has been recognised by government as a body representing the concerns of the disabled in the Hervey Bay region of Queensland or had participated in official government decision-making processes. Further, while I note from correspondence attached to the affidavit of Mr Robin Andrew King sworn 8 November 2005 that the respondent has acknowledged the applicant's interest in bus shelter infrastructure in the region and sought the input of the applicant and its members (annexure RK 3), and that the Disability Standards require, inter alia , that a provider must consult with "passengers with disabilities who use their service, or with organisations representing people with disabilities, about any proposal for equivalent access" (cl 33.2 Disability Standards), it is difficult to characterise the conduct of the respondent as being anything more than a willingness to consult an organisation which was willing to provide information. In this sense, a comparison may be drawn with the consultation with the Foundation in Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. Accordingly, I do not find comparisons with North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580 or the National Trust of Australia (Vic) [1976] VR 592 cases of assistance in these proceedings.