Batemans Bay Local Aboriginal Council and ANOR v The Aboriginal Community Benefit Fund Pty Ltd and ANOR S114/1997 [1997] HCATrans 391 (2 December 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S114 of 1997

B e t w e e n -

BATEMANS BAY LOCAL ABORIGINAL LAND COUNCIL and NEW SOUTH WALES ABORIGINAL LAND COUNCIL

Appellants

and

THE ABORIGINAL COMMUNITY BENEFIT FUND PTY LTD and ABORIGINAL BENEFIT FUND NO 2 PTY LTD

Respondents

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 DECEMBER 1997, AT 10.22 AM

Copyright in the High Court of Australia

MR T.S. HALE: If the Court please, I appear for the appellants with my learned friend, MR G.O'L REYNOLDS. (instructed by Denis Solari, Son & Associates)

MR J.S. WHEELHOUSE: If the Court pleases, I appear for the respondents with my learned friend, MR K.P. SMARK. (instructed by Thomas & Company)

GAUDRON J: Yes, Mr Hale.

MR HALE: Your Honours, in these proceedings the plaintiff, the respondents on the appeal, sought an injunction to restrain a breach of statute. The issue is whether Mr Justice McLelland's formulation of the test of standing is correct, namely, whether it is to be determined by reference to the interests protected by the statute. His Honour's formulation - - -

KIRBY J: The question before us would be whether the Court of Appeal was wrong.

MR HALE: Yes, and what we submit is his Honour was correct and the Court of Appeal was in error. The formulation of the test by Mr Justice McLelland is found at page 147 of the appeal book and may be summarised this way, that the plaintiffs' special interest to obtain standing must be of a "general kind which the relevant public right was intended" by the legislature "to safeguard or protect". This is at the bottom of page 147. His Honour found that the plaintiffs did not fall within that category and accordingly held that they had no standing.

Your Honours, of course, are generally aware of the facts, but this is in summary what might be called a trade rival case. The contention of special interest or standing arose from the argument that if the appellants' funeral contribution scheme began to operate, the appellant might attract business which might otherwise have gone to the respondents, thus it would be an indirect loss.

KIRBY J: Could I just ask, because, curiously, I would start with the Court of Appeal rather than Justice McLelland, but is there any dispute as to the findings of fact which are recorded by Justice Sheller, I think, in the Court of Appeal - Justice Handley - - -

MR HALE There is no dispute on the facts.

KIRBY J: - - - page 174, that the appellants are the only organisation other than the respondents:

that have marketed funeral and life insurance benefits specifically to the Aboriginal community.

MR HALE There is no dispute about that. The facts are also summarised at pages 143 to 144.

GUMMOW J: The Court of Appeal is reported in 41 NSWR 494 - yes; that is reported in the Local Government Reports, is it?

MR HALE Yes.

GUMMOW J: Volume 92.

MR HALE Yes. I have been relying upon the judgment as contained in the appeal book, if it please your Honours.

KIRBY J: And over the page at 175 Justice Handley said:

the appellants will be affected to a substantially greater degree, and in a significantly different manner, to the rest of the public, including other organisations marketing funeral and life insurance benefits.

Do you agree with that fact?

MR HALE There is no dispute about the facts in this case.

KIRBY J: And what about page 182, that:

it is highly probable that the commencement and operation of the ALC Scheme would have a severe detrimental financial effect on the business of the [appellants] - - -

MR HALE It does amount to speculation but the fact of the matter is that the appellants marketing its funeral fund to its members, being Aboriginal people in New South Wales, and it being subsidised and therefore cheaper, the respondents - or at least the first respondent, not the second respondent - marketing to Aborigines in New South Wales, the conclusion, or the inference is clearly available that by virtue of that cheaper rate and the association with the New South Wales Land Council, that more custom would come to the appellants rather then the respondents.

KIRBY J: More custom? It would drive them out of business; it would destroy them.

MR HALE That is the inference.

KIRBY J: Very well.

MR HALE The Court of Appeal rejected the test propounded by Mr Justice McLelland as being too fixed and too precise but imposed or propounded no alternative test.

KIRBY J: Is that quite right? Their Honours said that they would adopt the test expounded by this Court.

MR HALE: The difficulty, and one of the issues which I will come to, is the test of special interest which was adopted in ACF, is a test which we say lacks content which Mr Justice McLelland described as "amorphous", and the issue is to try and determine, with some degree of precision, how it was to be applied. That is what Mr Justice McLelland sought to do. The Court of Appeal propounded no formulation itself as to how to was to be applied.

GAUDRON J: Perhaps in this area one has to look at the underlying rationale for the standing rules in the case of breach of statute, what is the underlying rationale that says the Attorney-General has standing but other people do not, in general?

MR HALE: That is so.

GAUDRON J: What is it?

MR HALE: I was going to come to that, but - - -

GUMMOW J: It seems to me to be crucial. It seems also to me to be crucial that these rules were developed in England at a time when the Attorney-General was perceived as occupying an office with a particular character. To some extent, that was true in Australia. To some extent, it seems to me, it is just not true in Australia at all. The Helicopters Utilities Case, for example, which is referred to by the primary judge, to be understood, it needs to be appreciated that after Justice Jacobs said that private party had no standing, the federal Attorney-General of the day, Sir Garfield Barwick, granted a fiat, and the action proceeded, and was concluded.

Now, my impression is that Attorneys-General today do not regard their office in the same light and what impact does that have on this rule which was evolved in another country where the Attorney-General was another sort of person?

KIRBY J: Indeed, I would only add to that that in this case the facts indicate that the Attorney-General for New South Wales declined a fiat.

MR HALE: He did.

KIRBY J: It adds strength to his Honour's question.

MR HALE: What I would wish to come to is the proposition - - -

GUMMOW J: There is a question of government in all of this.

MR HALE: Yes, there is indeed.

GUMMOW J: And it is not faced up to in the authorities, is it?

MR HALE: That is right.

GUMMOW J: The time may have arrived where it has to be faced up to.

MR HALE: What I propose to do, subject to your Honours' consent, is to take your Honours to the basis upon which a plaintiff may apply for an injunction or seek an injunction to restrain breach of statute.

GUMMOW J: There is another factor too which you have got to take on board, namely the interest in the due administration of public moneys which seems very much involved, at least in so far as the Aboriginal Land Rights Act is concerned here.

MR HALE: Yes, I do not wish to be - - -

GUMMOW J: Now if the Attorney-General of the day is not prepared to lease, through this injunctive remedy, the due administration of public moneys, what is to be done?

MR HALE: The issue ultimately - - -

GUMMOW J: In the legal arena, as distinct from the political arena.

MR HALE: What we say is that it is to be determined by statutory construction, namely to determine whether the statute, by implication, confers an interest protectable by injunction upon a particular class, namely those for whom the benefit or protection has been enacted, if the plaintiff falls within that scope of protection that plaintiff has standing by implication. If not, he does not.

GAUDRON J: That sounds very like the rule which says whether or not you can sue for breach of statutory duty.

MR HALE: It is similar and, indeed, the Chief Justice, in Onus in particular and, indeed, Mr Justice Stephen in ACF developed a line along that basis and it is similar, namely, an interest which falls short of granting private rights.

GAUDRON J: Why should one adopt that approach?

MR HALE: The first proposition is what is the juridical basis for standing.

GAUDRON J: That does not seem to me really to be the question at all. The question is, what is the juridical basis for lack of standing? When you have got a law breached, it is obviously a justiciable issue whether or not the law has been complied with. The question is, why no standing?

MR HALE: The policy considerations, which I will come to - but the policy considerations would involve, as it were, a change in approach which, we would say, is a matter for the legislature or, alternatively, by rules of standing being promulgated as, for example, in England, and that the Court would resist the invitation which will no doubt come from the respondents to enhance that jurisdiction of standing beyond a current juridical basis.

KIRBY J: Is this these old floodgates again?

MR HALE: It is not entirely floodgates but, if I can respond to that, your Honour, one cannot assume, for the purposes of this argument - - -

KIRBY J: It is that fountain outside the Court in Canberra, as a sort of constant daily reminder to us of floodgates and the need therefor.

MR HALE: Well, your Honour, one cannot assume that every claim, every action to restrain a breach of statute will succeed. Now, litigation, which, of course, involves a defendant who no doubt has also obtained some benefit, involves, as litigation does, cost, it involves delay, uncertainty and the issue is, where does one draw the line to protect, amongst other things, that defendant from that litigation. Your Honour refers to floodgates, but in this day and age we are, of course, conscious of the interest groups and pressure groups that use litigation in order to further their interests and we need to look no further than this Court where the various parties sought to be heard in CES v Superclinics.

Now, that is not directly on point, but there was a plaintiff who, no doubt, had a very painful, to her, cause of action, who found herself in a position where a number of different interest groups wished to be heard. Now, expand that into the circumstance of standing to challenge a particular licence or administrative action. We have many small businessmen, by way of example, who receive the benefit of licences - - -

GUMMOW J: Let us just stop there for a minute, Mr Hale. This declaration by the Minister under 11(3)(a)(v) of the Funeral Funds Act, that is the relevant provision, is it not?

MR HALE: Yes, it is.

GUMMOW J: Why could not your opponents have gone on to seek some prerogative relief in respect of that, certiorari, I suppose? Would not they have had standing to do that?

MR HALE: We would say no.

GUMMOW J: Why not?

MR HALE: We would say that - - -

GUMMOW J: There are many cases about business competitors, I think, in that context of certiorari.

MR HALE: Yes, we would say it would still come back to whether they were a person relevantly aggrieved similar - I use that phrase simply because it brings in the ADJR standing where, again - - -

GUMMOW J: I am not talking about ADJR.

MR HALE: I appreciate that, but we would say no because, again, a lack of connection between the subject matter or duty contained within the legislation.

GAUDRON J: Let us talk about prohibition rather than certiorari. If you had got there earlier or perhaps later, did you ever need standing? Did you ever need any special interest for standing for prohibition?

MR HALE: They needed some standing.

GAUDRON J: I am not too sure about that.

McHUGH J: I do not think you did. It was a matter for discretion.

MR HALE: A matter for discretion. I am sorry, I am wrong, yes.

KIRBY J: That could have been ventured at any time, could it not?

MR HALE: Perhaps so.

KIRBY J: I mean, funds were being expended so that they could have gone up for prohibition.

MR HALE: Perhaps they could have.

KIRBY J: What a funny result then, that they can seek prohibition but they cannot bring these proceedings for injunction.

McHUGH J: I am not sure. Would prohibition have laid? It is a breach of statute, is it not, not a breach of jurisdiction; maybe a breach of public duty?

MR HALE: Ultimately it comes back to the fact that they sought a remedy in the equity jurisdiction. They sought a remedy which on its face would involve no equitable interest, so it was not under the exclusive jurisdiction of the inequity. They did not approach it on the basis that they had any legal right. Accordingly, there is no basis within the auxiliary jurisdiction. We submit that the proper approach or formulation of what they did was to seek an injunction pursuant to an implied right, as it were, under the statute to protect those for whom the benefits were enacted and that was the analysis that I ultimately wish to take you, picked up by Mr Justice Stephen in ACF, then developed further - - -

GAUDRON J: So does that mean that a member of a funeral fund would have standing, but not a person who ran a funeral fund?

MR HALE: Ultimately one must look at the approach to the issue by reference to the construction of the statute.

GAUDRON J: Well, that is there to protect the rights of the members of funeral funds, is it, or people who would be members?

MR HALE: Indeed, and one could see that in relation to perhaps a member of our funeral fund who sought to restrain a breach of the Funeral Funds Act, they would fall into that class sought to be protected and, by implication, would be given a right to protect their interests by injunction.

GAUDRON J: But there seems no logical reason why a member of a funeral fund who perhaps does not have the resources to conduct the litigation should have standing whereas a fund, whose obligation is at least in some respects to look after its members, would lack standing and the fund being an organisation which presumably is more likely to have the resources necessary to conduct the litigation.

MR HALE: If standing is not to be exercised by way of a discretion then, we submit, there needs to be a test which has application so the litigants know do they or do they not have standing? Now, the test that we propound which has some support in this Court, is one that has flexibility. It has flexibility because on each occasion it will be determined standing by reference to the scope of protection of the legislation.

HAYNE J: What does that mean? It is a nice phrase but what does it mean?

MR HALE: I will come to the authority shortly, but what it means is that a statute may, by implication, confer an interest protectable by injunction upon those people who have a special interest. Those people who have a special interest are those for whom the statute is enacted for whose benefit, so we look in terms of, for example, members of a funeral fund who wish, for example, to prevent an ultra vires act.

HAYNE J: By the fund of which they are a member?

MR HALE: Are a member, yes. If it be the case that we have a rule of standing, then how is it to be applied? Is it to be applied simply by reference, for example, to the degree of economic affectation or does one start with determining what the connection is with the subject matter, namely, the duty? There must be many administrative acts which can lead to economic affectation. Now, the question is how does one formulate the test? By the degree of economic affectation; by whether the connection is direct or indirect; does one do it by means of proximity? The question is what is that test and we say the test that Mr Justice McLelland propounded was consistent with principle and has flexible and reasonably certain application.

GUMMOW J: That would mean, though, that a person whose property rights were directly affected, if you like, by this illegal activity but who is not one of the preferred class of favoured beneficiaries but nevertheless is adversely affected in their propriety business, could not get an injunction.

MR HALE: If there is a proprietary right, if there is a private right, then one would image that they would have that protection.

McHUGH J: But why? Do you not have to maintain an argument that, at least in this area, formalism has to triumph over a substance because courts exist to determine disputes between parties and disputes that the courts will recognise for the purpose of determination can only arise when some right of a plaintiff is infringed either by the direct legal operation of an activity or by a direct impairment of some property or other right of the plaintiff? It is rather like the arguments that were put by about the affect of section 92 and which was rejected in the North Eastern Dairy Company Case. You have to go so far as to say that the economic consequences can never be looked at, have you not?

MR HALE: No. I have to go - unless they fall within - - -

McHUGH J: Unless it constitutes a direct infringement of a right.

MR HALE: Or that particular person has his economic rights infringed but he falls within the scope of protection.

McHUGH J: But that is only additional, is it not? If he has got a right, protected by the statute because the statute is designed for his benefit, then the right is infringed.

MR HALE: Yes, he has to fall within that. If I can again use the analogy, being Sydney based, the hot dog vendor who sells to those who get off the Manly ferry. There is an economic benefit in this sense or advantage to him by timetables having ferries running at a particular time. If, for example, the last ferry or the last two ferries are, by a timetable change, cancelled, does he, for example, have a right to challenge that administrative decision as being in breach of regulation of statute. If so, why? We would say, "No, he does not." He is like most other people. He suffers some economic adverse affectation but the statute or the timetables or the regulations are for the travelling public. However, the travelling public, if affected, might be able to challenge that administrative act.

GUMMOW J: Now let us think about section 75(v) of the Constitution for a minute and elevate us ourselves beyond the State considerations. Putting aside the Constitution for a minute, section 75(v) talks about prohibition, mandamus and injunction, three concepts side by side in the one section. In the federal sphere, you say there are different steps - putting aside the constitutional questions, in a simple case of excess of jurisdiction case, not a constitutional case, you say there are different standing rules for prohibition, mandamus and injunction under section 75(v) of the Constitution.

MR HALE: There is, of course, a difference under section 75, the requirement of matter which is the controlling aspect.

GUMMOW J: Yes, assume there is a matter as there is one here. There is a real live debate here if ever there was one. Now, do you say in 75(v) they are different, the standing is different?

MR HALE: The difference is that it is under a different statute, that ultimately one is forced back to the statute and your Honour is then looking at the statutory protection under the Constitution.

GUMMOW J: Yes, I know but prohibition and mandamus have, I think, more relaxed views. Perhaps not mandamus, but a more relaxed view about standing than the traditional injunction, the traditional equity view. Now, 75(v) indicates that the time has come in this area of public law where one has to coalesce at some point.

MR HALE: We would submit that that would pick up the general law test of standing.

McHUGH J: What do you mean by that?

MR HALE: Ultimately, one comes back to the determination of the scope of the statute. Could I perhaps - -

GUMMOW J: It may be purely an executive act, you see. There may be some executive activity not based in statute which goes beyond the prerogative power. How does your theory solve that?

GAUDRON J: And what do you do if what, at bottom, is involved is the expenditure of public monies without the authority of Parliament and the executive will not act or, as is usually the case, is the party expending those monies without authority? There must be standing somewhere to indicate that.

MR HALE: There is a difference in matters under the Constitution in part for this reason and it, in fact, fits or is consistent with the test that we are propounding. Namely, if we look at what the Constitution and the enactment of government under the Constitution is establishing is, amongst other things, determining the rights, as it were, of the citizen. Therefore, the citizen falls within that scope of protection which is similar, perhaps at similar point, was made by Justice Gummow in an article in 1993, Law and Contemporary Problems, volume 56, where at page 98 your Honour said that:

In other cases, the "right" of the plaintiff may be an immunity from interference by unconstitutional laws or executive action, and in such a case, the "right" flows from the terms of the Constitution itself.

GUMMOW J: But this idea that the executive and executive agencies do not spend money other than in accordance with appropriation by Parliament, as present in State Constitutions as well, and it certainly has not been expressly disavowed in any of this legislation. In fact what this is all about is keeping these bodies within the legislative charter.

GAUDRON J: And within the State constitutional framework.

MR HALE: If the argument is to be put that the relevant statute that one is looking at is the Aboriginal Land Rights Act or the Funeral Funds Act, one - - -

GAUDRON J: Or the State Constitution.

MR HALE: Or the State Constitution, but the fact that the proposition was not put and is not put that the standing arises under the State Constitution. The standing is said to - - -

GAUDRON J: Maybe it has not been put but is not that exactly what you are involved with in this case where you are talking about, at the end of the day, the expenditure of monies other than in the manner authorised by Parliament with the sanction of the executive and with the refusal of the person thought ordinarily appropriate on behalf of the government to act, namely, the Attorney-General? Why would there not be a constitutional right inhering in every resident of New South Wales and consequently standing inhering in every resident of New South Wales to protect the public funds, in those circumstances?

MR HALE: If, indeed, it was sought to restrain an executive act, or to contend that the legislation or regulation was ultra vires, it would follow. But, in this particular instance, the issue is whether or not the appellants, as a funeral fund operating contrary to the Funeral Funds Act - that is one proposition which is prohibited by section 11 of that Act and subject to penalty - and, therefore, one looks at that particular statute to determine whether or not the applicant has a relevant standing by reference to its special interest, namely, falling in the scope of protection. One looks at the statute said to be breached. If it said that the Constitution has been breached, one looks to the Constitution.

GAUDRON J: But I do not think the respondents' case is simply that the Funeral Funds Act has been breached.

MR HALE: That is one of them.

GAUDRON J: Yes, it combines two.

MR HALE: The other contention is that the scheme to be implemented is ultra vires the Aboriginal Land Rights Act and, there again, if the contention is that it is in breach of that Act, one looks to see who has standing and falls within the class which might protect those interests or duties by injunction.

KIRBY J: So, here is a party which, on the facts, could economically be destroyed by this matter, living in a rule of law society, wants to contest the legality of what you are doing, executive government will not give a fiat; it just has to mumble and grumble outside the court doors, it cannot come to have the matter resolved according to law. That seems a fantastic notion.

MR HALE: Well, your Honour, in these circumstances, is concentrating, might I suggest, on the financial effect, or potential financial effect. But the question is, is that the test? Does one simply determine whether one has standing purely by the degree of economic affectation?

KIRBY J: It brings them above the ruck. They are not just an ordinary member of the community, they are not just hypothetical or theoretical, they are not just emotional, they have a very real affectation on them and, as I understand the test laid down by this Court, which is wide and flexible, and deliberately so, that ought to be enough. I agree that some old authority says it is not, but I think that is an authority that, for various reasons, is out of kilter with what ought to be the position, and is the position under the law in this country now.

MR HALE: Well, that old authority in Boyce is, of course - has its difficulties, for a number of reasons; mainly because what it has done has simply take the test which applied to determining whether a private right, or a private individual might sue for public nuisance, whether or not there was the tort - whether an individual might sue in public nuisance where, immediately, one had a legal right if one fell within that test, and simply transposed that test which applied to public nuisance directly upon an application to restrain a breach of statute without actually determining what the juridical basis of that really was.

When this Court ultimately came to look at the issue in ACF in 1990 there was some reference to that failing. The Court expanded the test, or adopted a test of special interest, but it was a strike-out application and all it really determined, apart from the special interest test, was that mere emotional or intellectual interest was insufficient. But Mr Justice Stephen started to look at the issue as to the jurisprudential basis of such an application and how one approaches it.

Then, again, that jurisprudential basis was picked up in Onus by the Chief Justice, there not having been again another strike-out application; there not having been any precise formulation of a test or analysis with, perhaps, the exception of the Chief Justice. Then, in Wentworth v Woollahra, that approach seemed to be adopted and then was applied in the Shop Distributive's Case a few years ago. We say that is the approach which appears to have been adopted, or is in the formulation of being adopted, and that is the test which Mr Justice McLelland adopted, or applied - perhaps not in so many words, and that is what we say the test should remain. If, for reasons of public interest, there is something unsatisfactory about that, that the Court should resist the invitation to, as it were, correct it itself - such an invitation being resisted in ACF - leaving it to the legislature, or a rule of court.

What I was going to propose to do was to take your Honours to those authorities to establish that particular test or proposition.

KIRBY J: Under our system of government, legislation is normally passed on the proposal of the executive government. The history of fiats in this country in the last 50 years has indicated a general retreat from the grant of fiats. It seems hardly likely that the executive government would propose to Parliament a general power that would permit that to be overcome.

MR HALE They have certainly given specific powers - Trade Practices Act, Land and Environment Court, a variety of - then more restricted in the AD(JR) Act. They have - - -

KIRBY J: I think the real question is why should the party which stands to be economically destroyed not have access to the courts. Not why should it, but why should it not.

MR HALE Again, that is a policy question.

GUMMOW J: I know, but what is the policy? Barristers just saying it is a policy question, and everyone goes "oh ah", and that is it. But that is only the beginning of the inquiry. What is it?

MR HALE: The policy is that a party should not be subjected to litigation by another party unless it falls within a specified test so that the parties know, as it were, where the lines are and we would say it should be relatively restricted. There is no suggestion it should be anybody with any indirect affectation. It should be limited.

McHUGH J: But could I just suggest this to you, that the Court of Chancery went wrong because it looked to its own doctrines in relation to private law when in the public law area it should have looked to the reason why certiorari and prohibition were granted. Certiorari and prohibition were granted at the hands of a stranger because administrative bodies and tribunals and courts of inferior jurisdiction who exceeded their jurisdiction were seen as impinging on the royal prerogative and for that reason the courts would allow, at least historically, anybody to bring an action for prohibition or certiorari to restrain that usurpation of jurisdiction.

In the course of time a doctrine grew up that you had to be a party aggrieved, but why is not that the approach to a statute such as this? On Justice McLelland's finding at the hearing of the matter your client is acting in breach of the statute and the plaintiff in this case is a party aggrieved. It simply has an interest over and above that of the ordinary citizen. Indeed, I do not see for myself why it should make any difference that they should have some interest over and above. I do not know why in this area one should not go back to the old doctrine concerning certiorari and prohibition and leave it as a matter of discretion.

MR HALE: I can only answer that by saying that - - -

McHUGH J: But you see what I was putting to you - - -

MR HALE: Yes, I understand.

McHUGH J: - - - that you were dealing in a different area and if you look at the historic roots, if I remember them rightly, as to why certiorari and prohibition were granted, it was because there was an usurpation of jurisdiction and so any stranger could bring an application, but later it became a discretionary matter.

MR HALE: The fact, however, is that these proceedings were one in which an injunction was sought. Now, the issue of an injunction to restrain a breach of statute and the prerogative roots are of different origins. The question is whether this Court as a matter of policy should develop one rule of standing, as it were, both for an injunction such as the subject of these proceedings or prerogative writs. We would submit, no, that one retains the jurisprudential difference and if that is unacceptable that ultimately is a matter for the legislature - - -

GAUDRON J: Does the jurisprudential difference rest upon anything other than the desire of the courts of equity not to intrude upon the jurisdiction of the common law courts?

MR HALE: There are a number of issues.

GAUDRON J: And if it does not rest on anything more than that, do not the developments which have happened since, with respect to the fusion of law and equity, suggest that that is no longer a distinction which should be maintained?

MR HALE: But, fundamentally, the issue is if the court of equity grants an injunction, it must in the exercise of that equitable remedy, do so in order to protect a particular right or interest.

GUMMOW J: Yes, I know, we all know that. But the scope of the rights that are protected even in private law by injunction has greatly increased in the last hundred years. In a way, what is implicit in your submissions is that old fashioned ideas as to what amounted to sufficient private right still rather perversely linger on in this public law aspect of the remedy and that seems a bit peculiar. The fact is, people get injunctions in the Equity Division in New South Wales today in aid of private rights where they would not have got one 80 years go. That has just happened by a process of decision. Now, why in equity's intrudsion into public law is there this similar inhibition still existing?

MR HALE: We say two matters. Firstly, that if an equitable remedy is granted as distinct from a remedy which, by implication, arises from the statute then there still must be a right or interest which it is protecting, that being the very foundation of the basis upon which equity grants that injunction; the legal right in the auxiliary jurisdiction to protect the legal right and that is one of the - - -

GUMMOW J: But by definition, there is not such in these cases in public law.

MR HALE: No, and that is the very point.

GUMMOW J: There is some endeavour to manufacture one in some strange way.

MR HALE: Your Honour uses the word "manufacture" but one arises, we say - - -

GUMMOW J: By the second limb in the Boyce's Case.

MR HALE: By implication, because what Boyce was not doing, as I think Justice McHugh pointed out, it was not applying the doctrines relating to public law, at least certainly statutory - as with reference to a statute, but rather simply adopting the common law notions of public nuisance, and they never focused upon how one in fact - Mr Justice Buckley did not focus on the basis upon which a court in equity would grant an injunction to restrain the breach of the Act, or of the statute.

GUMMOW J: I know, but what I am essentially putting to you is the second limb in the Boyce's Case, as you say, formulated in that very particular circumstance, has somehow been treated as some sacred text and frozen.

MR HALE: Yes, not entirely frozen in ACF.

GUMMOW J: That is the question and if it has been defrosted in the Conservation Case, why do you not rest with that? You say you are happy with it, but in fact you seek to explain it in terms of invitation - - -

MR HALE: That is so, as to what a special interest is.

GUMMOW J: Yes.

MR HALE: Perhaps I should go to ACF. Perhaps I should begin by going back to Boyce (1903) 1 Ch. The proceedings were to restrain an alleged breach of two Acts which it was said were contravened by the erection of hoardings which were said to be - amount to a building.

At page 114 Mr Justice Buckley propounds his test halfway down the page. The first test, as this Court, the Chief Justice and Mr Justice Stephen, have pointed out is unremarkable, namely if one has a private right then one can sue without the fiat of the Attorney-General. It would be odd if there was also an infringement of a public right, the Attorney-General's fiat would be required. What then occurs in the second test is a reference to the various authorities which are Iverson v Moore and following, all of which are nuisance cases. What he has done is simply adopt the test to determine whether a plaintiff is entitled to commence proceedings in public nuisance without explaining the relationship between that cause of action which gives rise to a legal right which, in turn, in a sense would be a private right and an injunction to restrain a breach of statute. He never identifies what the jurisprudential basis is.

That, in a sense, is the source of confusion. It simply propounds that test. We would say if he has a falling within the second limb, in terms of nuisance, one has a legal right which would otherwise be protected in the court's auxiliary jurisdiction. Now that formulation of the test has given rise to some concern in this Court and if I might now go to Australian Conservation Foundation 146 CLR 493. That, as the Court would know, was a challenge to a decision made under the foreign exchange controls.

GUMMOW J: The first thing to note is that it is an action under section 75(v) of the Constitution, is it not?

MR HALE: Yes, it is. I feel somewhat embarrassed I could not answer your Honour's question earlier. Mr Justice Gibbs looked at some of the difficulties with that test and at page 527, towards the bottom of the page, understood the phrase "special damage" "peculiar to himself", that being a phrase that was current at the time particularly in relation to nuisance cases, as meaning:

"having a special interest in the subject matter of the action".

Mr Justice Stephen considered the problem from a slightly different approach and at the very bottom of page 540 he referred to:

The facts which give rise to the second possible source of special damage, the appellant's role as a commentator -

That refers back to the fact that ACF made representations with respect to a draft EIS. Then his Honour looked at the question from a point of statutory construction and towards the top of the page he refers to statutes which confer standing in express terms and then goes on:

But they may also do so by conferring some right the denial of the enjoyment -

Then he referred to Mr Justice Buckley:

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.

He then undertook the examination of the statute with that in mind, referring, at the bottom of page 542 and 543, to what might be called "town planning cases" and "notice" cases and analysed those in terms of what the statute was seeking to achieve and protect and, also, referred to Vanderwolf v Warringah Shire Council. Again, pausing there, the town planning cases, if I might call it that, would fall within the approach which we propound, namely, they would seek to regulate construction and building for the protection of others and environmental protections and, therefore, if one is adversely affected by virtue of a breach, then one has standing. Then, having looked at National Trust and a person who feels aggrieved, he says:

Whether they be looked at as, in the context of Boyce's Case, instances of the taking of a broad view of what may be constitute sufficient "special damage" or, perhaps more profitably, as cases where statute has conferred rights the enforcement of which involves standing to sue, the result must be the same: they provide no basis for standing in the present case.

And he goes on further to consider the procedures. Now, we submit that Mr Justice Stephen begins to formulate the appropriate approach, there not having been any single ratio in the ACF Case other than the fact, perhaps, that an emotional and intellectual interest does not give standing, it being a strike out base simply on the pleadings.

GUMMOW J: What does "emotional and intellectual" mean?

MR HALE: I presume, in the case of environmental law, it is a concern that forests remain.

GUMMOW J: Yes. Suppose that belief had been a tenet of a particular religion, does standing come into it then?

MR HALE: Well, standing would come into it only, again, such as in the right, we would say applying - some of the right to life cases similarly.

GUMMOW J: There is a case in the Full Court of the Federal Court which says that priests have a particular standing to seek to enforce censorship laws because of their particular concern of matters of blasphemy.

MR HALE: Ogle v Strickland.

GUMMOW J: Yes. Well, how does that - - -

MR HALE: And I think your Honour, in the right to life case - --

GUMMOW J: Forget what I said on it, but how do notions of religion fit into all of this?

MR HALE: Well, it would be difficult to see, in that particular case, how, unless the statute was in part enacted with the protection of - - -

GUMMOW J: You would say Ogle v Strickland was correct, would you not? You would say that is what censorship laws are all about.

MR HALE: Yes.

KIRBY J: I would like to look at the case of the priest, but the CES Case is completely distinguishable; they were interveners or amici.

MR HALE: I understand that, your Honour.

KIRBY J: Whereas we are talking here of the right of people to open that door and come into court.

MR HALE: I understand that and I am sorry if I misled your Honour. The point I was simply trying to make is that you had there as an instance where there were parties to litigation, in that particular case the plaintiff, who had a somewhat painful case to bring before the court and by virtue of the - - -

KIRBY J: You keep saying that. It was just for money, as far as I was concerned. Doctors had made a mistake and she said that she should be paid for it.

MR HALE: But the point I was seeking to extract from that example is that by virtue of the various pressure groups wishing to be heard one had an example where her private piece of litigation, as it were, was being expanded. I use that simply by way of analogy, that what may well occur or what might occur with the expansion or one of the risks or hazards of expanding standing is that you have defendants with their own businesses, perhaps small businesses, who will find themselves the subject of litigation which might fail or might succeed and that can have quite significant impacts in terms of cost, certainty, delay.

I use by way of example one area in which I have some familiarity where there are open standing provisions in the Land and Environment Court of New South Wales. Developers who have development consents which are affected and challenged and ultimately they might form the view that the challenge will fail, but nonetheless the mere fact of litigation itself has significant impacts and the question is where one draws the line.

KIRBY J: But subject to your argument that these are areas of the law that are better left to Parliament to develop, it would seem that the developments that have occurred are against you. Courts have begun to allow larger standing rights, courts have begun to allow more amici and interveners and Parliaments themselves reflecting these developments have begun to allow larger standing rights by statute. All of this is because it is recognised that the old concern about busybodies was an exaggerated one. There are lots of inhibitions against them and still are and that it is better to have disputes resolved in courts of law rather than out there in the streets or not resolved at all.

MR HALE: To the extent that the courts have permitted more liberal standing, that in part, we would submit, is due to the uncertainty which arises from what "special interest" means and what the test in ACF, in fact, does mean and what Mr Justice McLelland at first instance was trying to do was to draw together the threads to propound a test which had some degree of content and meaning. If I might go to Onus.

KIRBY J: Would not Robinson have been a better starting point for this because Robinson was - - -

MR HALE: Well, I could have. Robinson was somewhat unusual for two reasons.

KIRBY J: There was a little bit of economic interest there.

MR HALE: There was economic interest, but it was a constitutional case in Western Australia. Secondly, on one view of it he had a clearer right guaranteed under the statute, namely, that he was to receive certain compensation under the statute that was sought to be amended. Going to Onus: again, the issue arose by way of strike-out application where the Court ultimately determined, based upon the pleadings, it was possible that Mr Onus had standing but that was a matter ultimately to be determined at first instance.

Justice Brennan sought to adopt the statutory construction approach, primarily in relation to private rights to which he begins consideration at page 66. At the top of page 67 he used the example of, firstly, an express right under statute and that by way of inference. Dealing with inference, he goes to Cutler v Wandsworth Stadium at the bottom of page 67 and then goes to O'Connor v Bray.

GUMMOW J: O'Connor v Bray is a case about - it looks like a Factory and Shops Act case.

MR HALE Indeed, whether, by inference - - -

GUMMOW J: Where you get an action like an action in tort.

MR HALE Indeed; and the issue whether the statute inferentially conferred upon a class a right to sue for damages.

GUMMOW J: And so is Sovar to which his Honour referred to at page 67 in an extract from Justice Kitto.

MR HALE Yes. He is starting from that standpoint. Then, having established that proposition that rights can arise by inference or implication, he then goes to look at whether a remedy might lie in certain circumstances by inference, notwithstanding that it might fall short of a private right. In other words, that the statute made by implication confer, as it were, two levels of right or remedy: a private right to which O'Connor v Bray is the prime example, or something short of that, namely, which he ultimately concludes, that it may confer an interest protectable by injunction upon those who benefit, or for whose benefit the benefit or protection was enacted. That is how he seeks to analyse the basis upon which one seeks an injunction to restrain a breach of statute.

GUMMOW J: When the Attorney-General give a fiat and a relator comes along, you do not need any of this, do you?

MR HALE No, you do not.

GUMMOW J: Why do you let the Attorney-General in? Why let him in?

MR HALE The Attorney-General in, as it were, legal theory, the public rights reside in the Crown and the Attorney-General, of course, is the officer of the Crown who seeks to - - -

GUMMOW J: I realise that.

MR HALE I am sorry.

GUMMOW J: Are you not saying that in that example, equity was granting injunctions in aid of public rights?

MR HALE Yes.

GUMMOW J: Could not be anything else?

MR HALE That is right, because in aid of the - - -

GUMMOW J: Why does it all change when the hapless relator loses the fiat?

MR HALE Because the Attorney-General has the right, by virtue of his office, he, as it were being the guardian or officer of the Crown.

GUMMOW J: All I am saying to you is, in some circumstances equity got injunctions into the public law area.

MR HALE That is so.

GUMMOW J: No doubt about that because in the fiat.....relation. Why, in asking whether equity's involvement through the injunction in the public law area had any other form of operation, does one get back into rights talk in relation to private rights?

MR HALE: Well, what the - the equity would grant an injunction in its auxiliary jurisdiction to protect a legal right.

GUMMOW J: Yes, but it was not acting in the auxiliary jurisdiction when it was the Attorney-General. It was sui generis, it was in public law.

MR HALE: I can only answer it by relying upon the office that he held, namely, to enforce the rights of the Crown, he being the officer so designated by the Crown.

GUMMOW J: The Attorneys-General do not seem to be fulfilling that historic role, why is equity stultified? That is what you have to face up to.

MR HALE: Yes, and the argument I have to put - - -

GUMMOW J: Equity is not easily stultified. That is one lesson you get from history.

MR HALE: The way I put it, and have to put it, is unless it is an implied statutory right, because there is no legal right or equitable interest that the private litigant is seeking to protect.

KIRBY J: This is something I would like to get clear in my own mind. Are we talking about a rule which must be derived from the substantive right or are we talking about a rule in defence of themselves and of other litigants and of the community generally which courts have fashioned, in other words, is this standing notion something that you bring with you as part of the package of your right or is it a barrier at the gateway of the courts that says, "Well, we just will not let you come in"? Or is it both of these? The court seems to have shifted and sometimes said it is one and sometimes that it is not.

MR HALE: It is both, in this sense, that if you have a legal right which might arise from statute then you may protect it. If, however, there is no such private right then one has to look to the statute and the litigant is the beneficiary of the rights impliedly granted by the statute and brings that benefit, or he drives his standing from that.

KIRBY J: What is all this talk then about busybodies and wasting the time and not having a true contradictor and all of that. All of that is courts laying down rules for their own good operation. It does not seem to have anything to do with the statute in which the substantive right impliedly or expressly exists.

MR HALE: Well, the court in referring the references to busybodies is, perhaps, more an explanation that is sought to be given for the way the law has developed as to the limited rights to restrain a breach rather than the court saying, "This person is a busybody, I do not grant him standing".

KIRBY J: I still think that there are two notions at work here; one a substantive, one a procedural, and that the courts have muddled the two up a bit.

MR HALE: That is one of the propositions I really was putting, what is the substantive right that the plaintiff has to seek the injunction, to identify that?

KIRBY J: Do you say that in judging whether there is a substantive right you take into consideration such factors as is it purely emotional, is it purely theoretical, is it a case where there will be no true contradictor. Is it a case where there will be a busybody with only an emotional interest?

MR HALE: No, on the proposition that we advance, we say one simply looks to the duties of benefits and protections.

KIRBY J: So all of this verbiage the courts go on with is irrelevant?

MR HALE: We would say so, yes.

KIRBY J: Well that means what Sir Harry Gibbs said in his analysis of the fundamental policy issues, I think in Onus, was misconceived. It seems unlikely.

MR HALE: What he was saying is that if one has merely an emotional or intellectual interest, one does not relevantly have a special interest. That is, in substance, what he was putting, he was deciding. That, of course, may be consistent.

KIRBY J: I ask you this, Mr Hale, because all this talk of having a special interest does not seem to be relevant and the Court has gone off on a wrong siding if what you are looking at is does the party have an interest under this particular statute? I mean, then it is not a question of special or non-special. It is a question of the particular statute in question. That is what you are arguing for.

MR HALE: That is exactly so.

KIRBY J: Well therefore you are saying we have got to go back past Onus, past ACF, we have really got to go back into the dark ages to wipe out 15 years or 20 years of the Court's jurisprudence.

MR HALE: That is why I took the Court to ACF which is regarded as the cornerstone of the recent learning on standing. What it stands for, as it were, is what you need as a special interest. What it does not elucidate is what that means and that, as it were, was - and for that reason I took the Court to Mr Justice Stephen where he sought to give it some meaning and some juridical basis. Then, if we go to Onus, Justice Brennan - he ultimately determines that, going to page 76 in the middle of the page, the starting point of determining whether the plaintiffs have a special interest in the subject matter of the action -

The starting point is the statute, which defines the public duty said to rest upon the defendant, and thus the nature of the interest which the plaintiffs may have in enforcing its performance.

He, having at page 73 - - -

McHUGH J: That is necessarily a minority view, is it not, among judges as to what constitutes a special interest? I would have thought, at this stage, it was well and truly settled that a person has got a special interest if he or she is likely to gain some advantage if he succeeds or will suffer some disadvantage if he or she fails.

MR HALE: That is the very starting point. Without that one obviously does not get to first base.

McHUGH J: Does one have to go any further?

MR HALE: We submit so and that is what Justice Brennan points to at the bottom of page 75, five lines from the bottom, that "At least the plaintiff must be able to show".

McHUGH J: Yes, well what I was putting to you is do you have to show any more?

MR HALE: No. He then proceeds to determine - - -

McHUGH J: I know he does, but what I am putting to you is this is the minority view and that if you look at all the cases they are only explicable on the basis that what he states down the bottom of page 75 as the minimum requirement is, in fact, a sufficient requirement.

MR HALE: I would submit that there is no ratio on this within Onus and then - - -

McHUGH J: What about in ACF because did not Justice Gibbs say that in ACF and was not his judgment agreed in by other Justices on that point?

MR HALE: What he says is that there needs to be a special interest. Justice Brennan does not disagree, but he says the special interest is to be found by reference to the statute.

McHUGH J: I appreciate that - correct me if I am wrong - but in ACF I thought that Justice Gibbs defines special interest as being if the plaintiff is likely to gain some advantage if he succeeds or to suffer some disadvantage if he or she fails.

MR HALE: He does say that, yes, but if we take the test I am now propounding and we move forward in the same volume to Wentworth v Woollahra 672. At the joint judgment of Justice Gibbs, Mason, Murphy and Brennan, at page 680 to 681, particularly page 681, there seems to be an adoption, perhaps in slightly different circumstances, of the formulation by Justice Brennan and then the paragraph which refers to, as it were, the two level of implication from the statute.

GAUDRON J: But that was a case where she had a fiat, did she not, and what she was seeking was damages for breach of statute?

MR HALE: Yes. That is why I said slightly different circumstances.

GAUDRON J: Well, vastly different, are they not?

MR HALE: But the reason I advance, if I make reference to it, in slightly different circumstances at page 681 there seems to be an endorsement of the division or at least the implication to which Justice Brennan refers.

GUMMOW J: Yes, but somehow, although there is this quasi private right, it does not sound in damages under Lord Cairns Act, but that is curiosity of it in a way because if one was purely in public law, of course, it would not have anything to do with Lord Cairns Act.

MR HALE: I will take your Honours to that passage for that apparent endorsement. And then, when one goes ultimately to the - I will come back to Justice Brennan in Onus in a moment but, ultimately, when one comes to this Court's judgment in the Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552, that was the question of standing of the particular union representing shopkeepers and, at page 558, the Court refers to the test, and then the analysis that is adopted is one of looking at the interests that the legislation, or the regulation, was seeking to protect - the shop assistants - and, hence, the union, on their behalf, has standing.

Now, we would say it is the same approach of determining standing by reference to the scope of protection, and that was an authority which was relied upon by Mr Justice McLelland in his judgment as being of some assistance.

KIRBY J: But the umbrella, as it were, the statement of the principle by the Court is at 558 where it says:

The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest.

So that, it is not embracing, in terms, the rather narrower view that Justice Brennan expressed.

MR HALE: Your Honour, we would not submit that, when applied - - -

KIRBY J: What you are saying is, in this Court there have been different expressions of this view. There has been Justice Brennan's view. It appears to have had some support from Full Courts - clarify it. Well, if we have a choice, why should we choose a view that is so narrow when we have got an alternative approach which is broad, and which opens the door of the courts to people who have a real stake in the litigation over and above the ordinary member of the public?

MR HALE: We will answer that in two ways. Firstly, we submit, that the test is not narrow.

KIRBY J: It is narrower than the alternative on offer.

MR HALE: Which is, perhaps, part of the issue in this case, what is that alternative? But it is flexible. The courts are used to determining the scope, purpose and subject matter of a statute and it is a relatively broad class, one would have thought, that is being encompassed by the test. If I could go back to Onus to page 73, Justice Brennan refers to, in the first full paragraph, about whether or not there is likely to be a legal or equitable right, a proprietary or pecuniary right arising from modern legislation, and then propounds what seems to be his test and the test that was referred to in Wentworth that a plaintiff, though he may be able to show special interest in what the statute seeks to protect or enhance, would be unable to show a private right to prove that he suffered proprietary right and that that would deny standing.

What he has done is similar to that which Mr Justice Stephen has done by looking at that second category which does not convey or confer private rights, and falls short of those private rights which he again refers to at the top of page 74 in terms of whether a correlative right is given to enforce the duties and benefits or protections. Again, above the reference to Robinson towards the bottom of the page:

Where a statute protects the interests of a class, stopping short of conferring personal rights upon the members of the class.

As it falls short in the O'Connor v Bray approach. That is the context in which one sees the reference at page 76 about the starting point, which is the public duty, by looking to see what interest the statute seeks to protect.

KIRBY J: You see in the quote at 75 where his Honour cites what Justice Mason had said in Robinson:

".....[the rule] reflects a natural reluctance on the part of the courts to exercise jurisdiction otherwise than at the instance of a person who has an interest in the subject matter.

Now that, it seems to me, is stating the quandary that I expressed to you earlier. You either have a right or not. The reluctance of courts is not really relevant if you have the right.

I just find it difficult to reconcile, on the one hand, your theory which is the right inheres in the cause of action in the statute or maybe in the common law constitution, that you can come along and you will then have the interest that gets you into the court because the statute gives it to you. Against all this talk about not wanting busybodies and people who do not have an interest worrying the courts because they will just probably waste their time and they are all emotional and we do not want to have that in courts, everything has to be dry as dust.

MR HALE: Well, I put my answer to that before.

GAUDRON J: Mr Hale, it seems to me as you go through here, there really are two types of cases, in a sense. One is one in which there is a mere breach of statute. The others are cases in which it is not simply a mere breach of statute but the administration of the law itself is involved. The administration of the law by the executive is involved. In this case, although you keep going to the Funeral Funds Act, it seems to me that the starting point is really the Aboriginal Land Rights Act, and where you have the Minister responsible for the administration of that Act party to an agreement which results in the Land Council, as it were, acting outside its statutory scope, what you seem to have is a situation in which there is no adequate administrative law remedy. Now, the basis of equity's relief in many situations was the absence of adequate remedy in other jurisdictions. Why might you not take the same approach in a case such as this?

MR HALE: Well, take the Funeral Funds Act, by way of example, as the - - -

GAUDRON J: Yes, but I am saying start with the Aboriginal Land Rights Act.

MR HALE: All right, start with the Aboriginal Land Rights Act. There is there - the argument was that the scheme was beyond power for particular reasons. There are people, members, as in members of a company, who, had they chosen to commence proceedings, would have had that standing but they presumably have chosen not to, for one reason or another.

GUMMOW J: But that is not what is being asked. The question is, what administrative law remedy could anyone have got in that situation arising under the Land Rights Act? I took you at the beginning to the Funeral Funds Act where there clearly was an executive power to grant an exemption and that exercise of power would obviously attract, one might have thought, some administrative law remedy of the traditional sort, but where you have just got the Aboriginal Land Rights - that side of the case, what remedy, other than a declaration or an injunction could anyone have got?

MR HALE: None.

GUMMOW J: Therefore, does that not reveal some inadequacy in the overall legal structure which is remedied by the declaration or the injunction?

MR HALE: Well, I say none, apart from the Attorney-General.

GUMMOW J: Yes.

MR HALE: And any person - - -

GUMMOW J: Wait a minute, none apart from a declaration or an injunction. You say it could have been got at the suit of the Attorney and that is good enough, but short of that, you have to get into these other questions of quasi private rights.

MR HALE: Yes, that is the proposition - - -

GUMMOW J: But is that the relevant area of debate in that situation?

MR HALE: Well, we would say yes.

GAUDRON J: It just seems to me that there is a dimension to a case of this kind, by reason of the Aboriginal Land Rights consideration, not the Funeral Funds Act, which is absent in the cases where you are looking for a special interest.

MR HALE: Could I just go back to what Justice Gummow said?

GUMMOW J: Well, it is the same question, I think.

MR HALE: Yes. Within the Aboriginal Land Rights Act, there will be legal interests created, and equitable interests arising from land, and transfer of land, and purchase of land, and matters of that sort, which would be amenable to protection in equity. We are concentrating here simply on the issue absent any such legal or equitable right. It is simply one of acting ultra vires the statute and nothing more. Then the answer is, we would say, there is no other remedy other than that which might be sought by the Attorney-General or - - -

GAUDRON J: Acting ultra vires with the co-operation, to use a neutral word, of the Minister responsible for the administration of the Aboriginal Land Rights Act.

MR HALE: Well, in the sense that that Minister has taken no action.

GAUDRON J: No, he is party to an agreement.

MR HALE: Yes.

GAUDRON J: It goes a bit beyond taking no action.

HAYNE J: Does it mean, therefore, that no one other than the Attorney can ensure the proper expenditure of moneys under that Act?

MR HALE: No. I suppose it comes back to the very point I have been - the proposition - the Attorney-General, or the person or persons - - -

GUMMOW J: Well, the recipients of the money will be as happy as could be.

MR HALE: Yes. Or whoever falls - might be said falls within that scope of the legislative protection.

HAYNE J: And in the circumstances of this statute, who falls within the class?

MR HALE: Well, clearly enough, members, Aborigines, also - - -

HAYNE J: Those who are receiving the benefit of the unlawful disposition of funds.

MR HALE: No, not all of them are, because what the - the origin of the concern is that funds of the New South Wales Aboriginal Land Council are indirectly being used to subsidise the local Aboriginal Land Council scheme. Now, the beneficiaries, presumably, are those people who will involve themselves, or become members of the contributory funeral fund. Now, we do not know what proportion that is - one would not expect it to be large - but it is certainly just a proportion; whereas, the balance of the members, it might be said, might have an interest in their funds not being expended for that purpose. And had they, for example, sought to bring proceedings, they clearly would have had standing.

KIRBY J: You did not appeal against the subsequent decision of Justice McLelland on 25 August 1997.

MR HALE: On the special leave application - - -

GUMMOW J: You had an offer you could not refuse.

MR HALE: One of the terms was that we withdraw the appeal.

McHUGH J: That may have been a wrong decision.

MR HALE: It might have been, but at the end of the day this is a matter of principle and the fact that we had unsuccessfully sought a stay of the Court of Appeal's orders to remit the matter back to Mr Justice McLelland pending our special leave application, that failed. We did not come to this Court, but we went to the Court of Appeal. That being the case, we submit we ought not be prejudiced in terms of the analysis of the principle.

KIRBY J: But you will understand a certain sense of disquiet. Here is a case that has been sent back to Justice McLelland. He has found that in important respects a statute of the State of New South Wales has been breached, money has been expended illegally and - - -

MR HALE: Or is to be expended.

KIRBY J: - - - the result would be that this Court would simply overlook that fact and say, "Well, that is just too bad. You cannot come to a court and get relief for it."

MR HALE: That is why we say we ought not be prejudiced by withdrawing - - -

GUMMOW J: I do not understand that, Mr Hale. Ordinarily they just would not get a trial. People at the Bar have got this disease about separate questions. There is no need for there to have been a separate question in this case. You could have just had a trial of everything.

MR HALE: I am sorry. There was no separate question. His Honour determined at a - - -

GUMMOW J: Standing, merits, the lot, could have all been done on the one occasion. That is what I am putting to you.

MR HALE: He did that. No, his Honour, in fact, did that and determined there was no standing and dismissed the proceedings.

KIRBY J: He had heard the whole proceedings, but he said, "Well, I can get rid of this on the standing issue and, therefore, I do not have to deal with the others."

MR HALE: Indeed, that is so and then the - - -

GUMMOW J: But what I am putting to you is he need not have done so. He could quite properly have gone through the triable merits as well, as he eventually did.

MR HALE: As he eventually did.

GUMMOW J: Now, why cannot we look at the reality without you claiming some prejudice which prevents us looking at - - -

MR HALE: I say prejudice. What I meant by that is the issue is one of standing and that is the way one would approach it, whether they had the entitlement to commence the proceedings or seek injunction in the first place.

GUMMOW J: Yes, I understand that.

McHUGH J: Your whole argument depends upon looking at this case in terms of the plaintiff having some right which is infringed, does it not?

MR HALE: Yes, it does or in so far as it is a member of the class which receives a benefit or protection which has been infringed, yes.

McHUGH J: Of rights being conferred upon them?

MR HALE: Yes.

McHUGH J: I asked you earlier about prohibition and certiorari cases, but how do you reconcile this equitable doctrine with private prosecutions for public wrongs, criminal acts? I mean, take Sankey v Whitlam. It is a private prosecution.

MR HALE: Similarly, there is a similar approach, namely, I think, in John Fairfax v The Commonwealth, that one approaches it by reference to, again, statutory construction.

McHUGH J: No, but any person can lay an information.

MR HALE: I am sorry, I misunderstood your Honour's question.

McHUGH J: Any person can lay an information.

MR HALE: And, indeed, an information presumably could have been laid under the Funeral Funds Act in these proceedings. That is one of the remedies that is granted under the statute, which would have given rise to the question as to whether or not the exemption granted by the Minister was effective.

McHUGH J: So what does it come down to, that equity will not allow people to enter its doors in respect of public wrongs unless either some right of the plaintiff is infringed or it is the Attorney-General, either ex officio or on the relationship of a private citizen?

MR HALE: Yes, that is so, "right" being in terms of as understood either legal equitable right or right arising by implication under statute, yes.

KIRBY J: So the result is that you can bring an action in the criminal prosecution - - -

MR HALE: Yes.

KIRBY J: You could bring a prohibition, you could possibly bring a certiorari. If you get a stooge you could bring an action in equity if you could get somebody with the private interest, but you just cannot bring this action that is before the Court. It seems an absurd result.

MR HALE: It is the remedy that has been sought.

KIRBY J: I realise that but we are asking ourselves should we, as it were, express the remedy in terms that is so disconforming to all the other remedies that are available in the case.

MR HALE: It is not, with respect, as disconforming as perhaps your Honour might think and the reason I say that is if one looks, for example, as to the person aggrieved both in terms of the AD(JR) Act - and I have mentioned that earlier - and what a person aggrieved act means, if one approaches that phrase in the way that has been approached in the Federal Court, one comes back to the similar formulation of looking at what the statute seeks to protect. It cannot be said, might I submit, that the AD(JR) Act is inflexible, too restrictive. The approach we adopt is consistent with that approach.

KIRBY J: Yes, but the AD(JR) Act is the creature of Parliament. We are talking here of rules fashioned by courts in part, as explained, for their own protection and for the protection from busybodies ensuring there is a contradictor and so on and it is a court doctrine that you are dealing with.

MR HALE: It is, but - - -

KIRBY J: Specific to the law in the equitable jurisdiction.

MR HALE: It is, but I come back to the point I have probably made too many times already that if, as a matter of policy, it is being suggested that one should broaden standing to give a discretionary approach or whatever, that, we submit, is a matter for the Parliament in much the same way as the Parliament have propounded statutory tests not only in the AD(JR) Act but in a variety of legislation.

McHUGH J: Is there any connection with the rules between this area and the rules concerning obtaining of injunctions concerning breaches of the criminal law on our - you can get injunctions, for example, if there is a - - -

MR HALE: Yes, that is what I thought the question was earlier. John Fairfax [1980] HCA 44; 147 CLR 39 and at page 49 through to 50 Mr Justice Mason looks at this issue and looks at it in terms of statutory construction.

GUMMOW J: One of the grounds for intervening there is the perceived inadequacy of the penalty.

MR HALE: Yes, indeed.

GUMMOW J: He got fined $50 a day for selling flowers outside a - - -

McHUGH J: Yes, and Harris' Case, where persistent breaches of an ordinance about selling flowers.

MR HALE: And, indeed, that is one of the - in O'Connor v Bray, in dealing with the implication of a right to sue for damages, the penalty, the scale of the penalty, the inadequacy of the penalty - is also an aid to statutory construction. That is, perhaps, expanded upon more fully in a case which is not on our list of authorities of Martin v Western District of Australasia Coal and Shale Employees [1934] NSWStRp 57; (1934) 34 SR(NSW) 593, a judgment of Sir Frederick Jordan, where he looks at a number of the criteria that would be relevant in the statute as to whether that correlative private right to sue might arise.

McHUGH J: It is all dealt with by Justice Kitto in Sovar v Henry Lane 116 CLR, is it not?

MR HALE: In our written submissions, we refer to the Federal Court authorities, which also focus upon statutory construction and, in particular, Alphapharm v Smithkline Beecham and, also, Big Country.

GUMMOW J: Well, Alphapharm, I think, really, was saying that this statutory scheme was such as to say that there was good reason for not giving people standing. That is what.....namely, that they would be holding up the process of getting these drugs - - -

MR HALE: And what your Honour did was to look at the particular statute in order to determine the statutory intention and how the interest related to that statutory - - -

GUMMOW J: But in the negative sense, you see. One asks, why should these people not have standing? Answer, because it would frustrate the operation of the statutory scheme. That is what the case decided.

GAUDRON J: From which you take the implication from the statute that there is none, which is a different principle, really.

GUMMOW J: That is right.

MR HALE: Well, another one is Big Country 60 FCR, again referred to in written submissions, where the plaintiff was seeking to restrain a particular decision of, I think, a pharmaceutical board, which would have the consequence of permitting a pharmacist moving from one shopping centre to another, which might have the consequence that the shopping centre might not be as profitable. Again, his Honour Mr Justice Lindgren, applying Alphapharm, looked at the problem in terms of what the relevant statute was seeking to protect, or duties it was seeking to create.

McHUGH J: This doctrine that you seek to propound in relation to public law seems much narrower than equity's own private law doctrines these days, does it not? How do you reconcile your argument with what I will call the racecourse exclusion cases - say, Forbes v New South Wales Trotting Club in this Court where it was held that a resolution of a club that the plaintiff should not go on Harold Park Raceway was a matter in which he had standing to sue. Chief Justice Barwick held he had no standing, but the rest of the Court held he did have standing.

MR HALE It was a natural justice case, I think.

McHUGH J: I know it was a natural justice case, but the fact is that the argument was that he had standing to claim that he should have been heard before they passed the resolution. The club said, "Well, we are only exercising our proprietary rights as landowners to keep him off".

MR HALE My recollection of in Kioa v West draws a distinction between an interest for the point of view of natural justice and some other administrative action. But, I must confess, I am not familiar with the case to which your Honour refers - - -

GUMMOW J: The Forbes Case, is it not?

McHUGH J: Yes. So, it has consequential effects. He says, "You have denied me natural justice", but they say, "On what basis? We just passed a resolution. He is not a member of the club. We just said we do not want him on our land". This Court said he had standing to say he should have been heard.

MR HALE The argument, I would apprehend it, had been that he had a right arising - or that he had a right to be heard, the procedural fairness being a different proposition from that which is now being advanced to restrain a breach of statute. The policy basis in support of our proposition is advanced in the written submission, the extent to which I have not already referred to it.

McHUGH J: Can I just ask you one other aspect? What about the restraint of trade cases, like Dickenson, or Buckley v Tutty, which do not necessarily have contractual consequences, but the club passes a resolution, or a governing body passes a resolution that certain people shall deal in such-and-such a way, or not trade in such a way. Yet, they have standing to obtain injunctions, declarations that such resolutions are void.

MR HALE If they be the recipient, presumably, of the benefit or the regulation, and that benefit or regulation, no doubt, arises from another statute, ultimately.

GUMMOW J: I do not think that is right. That is not what Dickenson decides. I think Dickenson is an example of getting an injunction in the case where you might not have got one 80 years ago, because there is no direct contractual - - -

MR HALE It has been suggested that that is part of the difficulty with Buckley v Tutty. I do not put that. Your Honours, I have advanced the argument I wish to advance, and your Honour has the matters of policy to which I have canvassed, and they are our submissions.

GAUDRON J: Thank you, Mr Hale. Yes, Mr Wheelhouse.

MR WHEELHOUSE: Your Honours, I wish to make eight brief oral submissions to supplement that which has been done in writing. The first submission is that the decision of the Court of Appeal is consistent with authority and has applied the appropriate test. Our fundamental submission is that the basis upon which standing is granted is now reasonably settled in principle, and that standing should be granted where a party has a special interest in the subject matter of the litigation. The test is flexible, a mere emotional or intellectual interest will not amount to a special interest. We say, your Honours, that is the test that the Court of Appeal applied and they did that by a rigorous analysis of the decisions of this Court.

Our second submission, your Honours, is that within the test there is no rational reason to treat economic interests differently to any other interest and there have been a large number of cases of significance where economic interests have clearly been in issue. The Air Express Limited v Ansett Transport Industries Case is the principal one, of course. Robinson v The Western Australian Government is another one and, at a lesser level, the ACF v Commonwealth Case is also a type of case where an economic interest may have prevailed if it had been more substantial.

KIRBY J: Ansett is the best of those cases from your point of view.

MR WHEELHOUSE: It is, your Honour.

KIRBY J: Was that analysed in terms of what the particular statutory provisions permitted or was it analysed in more broad terms such as you have expressed?

MR WHEELHOUSE: Your Honour, it could be submitted that it was analysed in terms of the statute because the Court, or Justice Aickin hearing the matter at first instance, had to determine precisely what was the illegal act that caused the economic detriment that was being alleged by Ansett Transport Industries and thus, your Honour, while the Court looked at the statutory framework in which the complaint was being made, the statutory framework was not determinative of whether or not standing should have been granted.

Our fundamental submission on that point is, that if you look at all the cases where the Court has analysed the statutory context n which a right of standing has been claimed, all the Court is doing is, in effect, identifying whether there is a special interest within that statutory context but not using the statutory context as a determinative issue on whether standing should be refused. It is just one of the matters the Court takes into account in identifying standing. We effectively say that is what Justice Brennan was doing in Onus, but I perhaps should come to that in detail.

GUMMOW J: Having regard to what Justice Mason said in the Commonwealth v Fairfax, in this inquiry you have been talking about, does the adequacy, or inadequacy, or existence, or non-existence of the prerogative remedies at common law, does that have any part to play?

MR WHEELHOUSE: No, your Honour.

GUMMOW J: Why not?

MR WHEELHOUSE: We see the remedies as being - - -

GUMMOW J: Are you saying Justice Mason is wrong?

MR WHEELHOUSE: No, your Honour, I am not saying Justice Mason is wrong. Your Honours, when Justice McHugh raised that point I looked to the chapter that I have been reading in Aronson's book on the nature of the prerogative writs and the circumstances under which prerogative writs had been able to be successfully employed to assert public rights. What the learned authors there were saying was from an historical perspective, perspective had been confusion as to the circumstances in which prerogative writs could have been used, either certiorari, prohibition or mandamus.

Our position, essentially, was, your Honour, that in the circumstances in which the respondents were faced in June 1996, they had to have urgent relief. They were in a situation where the appellants' scheme was, in effect, ready to go and what the respondents needed was urgent relief by way of an injunction to prevent that scheme being put into place. So, the question from our perspective was, that the availability of criminal prosecution - - -

GAUDRON J: Does not that raise precisely the question raised by

Justice Gummow, inadequacy of remedies.

MR WHEELHOUSE: In those circumstances, we regarded that all the traditional remedies were inadequate.

GUMMOW J: Because it was sufficiently expeditious.

MR WHEELHOUSE: Yes. And secondly, your Honour, I am going to deal with this point slightly - - -

GAUDRON J: Not necessarily from the point of view of your economic interests or the economic interests of your client but, presumably, from the point of view of the interests of people who might have subscribed to a fund which turned out to be ultra vires.

MR WHEELHOUSE: Yes, indeed, your Honour. We are rather surprised at the distinction that Justice McLelland drew between the trustee of the fund being the vehicle through which the action could have been brought and the beneficiaries under the fund as being appropriate numerous individuals who could have asserted the rights. We, for better or worse, in a sense, took the view that the trustee was there as a guardian of the rights of the beneficiaries of the funds and that was the appropriate vehicle to launch this piece of litigation.

So, I am answering your question in a roundabout way, your Honour. We took the view that the traditional prerogative writs or a criminal prosecution were not going to provide an expeditious relief and so we thought we had to go down the route of injunction to assert, as it were, a right arising from what we perceive to be a public wrong.

KIRBY J: Presumably, you could have had a stooge. In other words, you could have had somebody who took out one of these policies and then sought relief, being in doubt as to whether he would have the benefit in due course.

MR WHEELHOUSE: Yes, your Honour. We thought that the gateways were much easier with the traditional writs but they were not able to provide the relief that we needed. At the time, on the 6 June 1996, when the appellants' scheme had already been drawn up, we were faced with a situation where the Minister of the day had put forward an exemption which, on its face, clearly did not accord with the legislation and we were being faced with the proposition that, having attacked that exemption on the interlocutory application, a final hearing was given within two weeks of the interlocutory application - it was a rapid final hearing - - -

GUMMOW J: I understand all of that, how you filed it, about the merits of it all, in the past, but the question then, in a way, is on the assumption, at least under the Funeral Funds Act that you could, at a slower pace, have got a prerogative remedy, the question then, in a way, is the only, however, expeditious remedy being the injunctive one, why do you have to show more to get that than you would have had to show to get the prerogative remedy? And that is not necessarily put against you, but it is an issue.

MR WHEELHOUSE: The only reason why we thought we had to show more was because of the way the injunctive relief had developed in this Court through the vehicle of special interest, whereas our understanding of the availability of the older style writs was that that was more discretionary and, indeed, the threshold, if you got the discretion exercised in your favour, was lower and there was something to be said for going down that route. So we thought, when we approached it - - -

KIRBY J: You are giving a little bit of evidence now, are you?

MR WHEELHOUSE: Yes, I am sorry, your Honour. I withdraw that. Our submission was, originally, that the injunctive relief was the appropriate way to go because we could demonstrate in a very short compass how the special interest arose and that is quite clear if one goes to page 13 of the appeal book and sees the evidence of Mr Pattenden.

GUMMOW J: Now, you got interlocutory relief?

MR WHEELHOUSE: Yes.

GUMMOW J: And you gave an undertaking for damages?

MR WHEELHOUSE: Yes, and in the meantime, of course, your Honour, the initial exemption was revoked and the second exemption was put in place. Indeed, I notice a typographical error in the appeal book in Justice Handley's decision. The second exemption was, in fact, dated - perhaps if your Honour goes to the appeal book, the actual exemption itself. The original exemption is at page 41 and that was the exemption that was attacked on the interlocutory application on the basis that section 11 of the Funeral Fund Act required that a person be exempt and this seemed to be exempting a fund rather than a person.

GUMMOW J: Yes.

MR WHEELHOUSE: The consequence of that was that on 12 June - the final hearing being on 19 June, if the Court pleases, and on 12 June at page 74 of the appeal book the earlier exemption was revoked and on the same day, at page 75 of the appeal book, the subsequent exemption was gazetted and it was significant, your Honour, that this we perceived to be an act of the executive in that it was the Minister that made the declaration and that is the point your Honour was making and one of the points I was going to make in my eight points because the respondents were faced with a situation where they had a trust deed to which the State of New South Wales was a party. They had an exemption - - -

GUMMOW J: Where does the trust deed appear, the instrument of the Minister signed?

MR WHEELHOUSE: It is just before it, your Honour. It commences at page 43 of the appeal book and that was the draft trust deed and the executed trust deed - - -

GUMMOW J: It does not seem to be signed, at page 72.

MR WHEELHOUSE: That is correct, your Honour. I think the - - -

GUMMOW J: The Minister is translated to Privy Councillorship too, which must have surprised him.

MR WHEELHOUSE: Appeal book page 85, if the Court pleases, is the actual executed one. I will just check that that has got the signature. No, it is not signed either, your Honour. It is at page 108.

KIRBY J: Presumably the Minister did this acting honestly and lawfully on the basis that a little bit of competition for you would be a good thing and that you were ripping off the Aboriginal subscribers.

MR WHEELHOUSE: One has no idea and there was no evidence about that whatsoever.

GUMMOW J: .....that the Minister did sign at some stage.

MR WHEELHOUSE: I have got no evidence to indicate one way or the other, your Honour. Your Honour, as I was saying, the second exemption appears at page 75 dated 12 June 1996 and that was the exemption that was attacked on the trial and that was, in fact, gazetted on 14 June 1996, which appears at page 76. That was just before the trial. The trial commenced, I think, on 19 June.

KIRBY J: Does Justice Handley mistake the date, does he?

MR WHEELHOUSE: His Honour wrote his judgment 4 June 1996 entirely because the document that was attached to the affidavit was a poor photocopy.

KIRBY J: I see.

MR WHEELHOUSE: There is a crease in the paper. It took out the 1, but it was, in fact, the 14th and nothing turns on the factual situation except that it is, in our submission, ultimately important for the Court to take cognisance of the fact that we were dealing with a declaration by a Minister and a trust deed of which the State was a party.

KIRBY J: That is at 166.

MR WHEELHOUSE: Yes, your Honour. So the second point I was enunciating, if the Court pleases, was that within the test there is no rational reason to treat economic interest differently to any other reason and your Honour has taken me to Air Express and we would say Robinson is another example of that and the Court, in my respectful submission, ought not follow the path set by Justice McLelland in trying to work out what is a direct or indirect interest and, indeed, our submission was that in the Court of Appeal, at least, when that issue arose, that this was a direct economic attack in the same way that Phillips v New South Wales Fisheries Authority was a direct attack on the plaintiff there.

KIRBY J: I am still not clear in my own mind how, in the theory of this matter, you have applied it to be played by the statute which is under scrutiny and I really cannot get clear what role the statute has in providing the right and what role "standing" against busybodies' emotional interests and so on has once you have established a statutory right. Are they two conditions? Have you got to get through two gateways?

MR WHEELHOUSE: In our submission, not, your Honour. Our submission, essentially, is that what the respondents are seeking to do by their submission, this is my further submission, is to add an extra gateway to standing by adding to the test a requirement that a party should be denied standing unless he or she is within the class of persons contemplated as requiring protection by the particular statute in question. We say that that is not a restriction that has been the subject of clear statement by this Court. It certainly, as my learned friend has correctly pointed out, may be inferentially drawn from what Justice Brennan said in Onus, but our submission is that careful analysis of Onus does not bear out that submission as being correct.

KIRBY J: What about the negative use that appears in those Federal Court cases that if to provide standing would be so completely inimical to the statute that it would destroy its effectiveness. Is that a factor - - -

MR WHEELHOUSE: Your Honour, in our submission, there is a fundamental difference between a regulatory statute that gives a person, an aggrieved person or however you want to put the definition, a right to challenge a decision of a particular decision maker under the particular statute and the assertion of common law rights as the respondents do here. Alphapharm is a good example of that. Where there is a particular policy inherent in a statute and a decision maker is given parameters within which to make a decision within that statutory framework, and a person is aggrieved by a decision maker exercising his powers within the framework provided by the statute then that is, in effect, the means by which Parliament has defined the basis of standing to attack the relevant administrative decisions and that is a completely discrete basis for standing than exists in the common law position as we are asserting here. Indeed, your Honour, even though the American authorities had been given - - -

KIRBY J: Common law or equitable?

MR WHEELHOUSE: Equitable, you are quite right, I am distinguishing between statutory rights and rights at law and I meant equitable remedies, if the Court pleases. If we have a look at some of the United States authorities, particularly the line of authorities that emanated from the Data Processing Case that is referred to in a number of the High Court authorities, the Supreme Court in the United States in the 1970 enunciation of the test for standing that appears in the Data Processing Case adopted a proposition similar to that being urged upon this Court by my learned friend, namely you have to come within the zone of interest of the particular statute referred to. But our understanding of the more recent authorities is that the American Supreme Court has moved away from that proposition and has now said you have got to look to the statute to see whether that excludes standing.

KIRBY J: Well, that is the negative test.

MR WHEELHOUSE: That is the negative test, yes. And we say, your Honour, that you may, in a particular statute, see a basis for excluding standing, but it would be an error to look to the statute to see where there is a particular basis for standing being granted. The dichotomy that falls from that analysis fits quite happily with the statutory framework for standing in cases such as the Alphapharm Case and Big Country, and all those cases where what is sought to be reviewed is effectively an administrative decision and the statute gives standing to a person aggrieved, and that standing is circumscribed, in a sense, by the basis upon which the decision maker can make a decision.

Say, for example, in Alphapharm, the decision maker was not entitled to take into account in making his decision the economic impact upon a trade rival, he had to take into account whether the generic drug was safe and properly researched. So, a person aggrieved in those circumstances, by that decision, could only attack the decision on the basis upon which the decision maker was allowed to make it and, in that sense, the economic trade rival had been excluded from standing under that statute. So, that is a long-winded answer to the proposition your Honour has put to me, but that is how we would deal with that problem of trying to harmonise the two bases upon which standing exists.

KIRBY J: Do you give us, in your written material, the reference to the United States' authorities?

MR WHEELHOUSE: No, I have not, your Honour, but I can do that conveniently with a short note.

McHUGH J: So, what does it come to, that if the statute impliedly declares that a private citizen has no standing, that is one thing; but it does not follow from that proposition that the failure of the statute to give a right of standing prevents a person having standing?

MR WHEELHOUSE: Yes. We would say it is even higher than that. We would say you need to find an express statement in the statute that Parliament intended to exclude standing. We put the "zone of interest" argument in the reverse, as it were; we say that you look to the negative, and you need to have clear statements of negative before you close the court room door.

KIRBY J: It might be that you do not have to go quite that far. You could say that Parliament intended to exclude the courts operating their normal rules of the common law of equitable principles and, therefore, as it were, cover that particular issue. And, if they do not, then they leave it to the courts to apply their developing jurisprudence on standing, which has not stood still, it has been developing.

MR WHEELHOUSE: Yes; I propose to take, in a very short way, the Court to some of the cases. That is the proposition which we are contending for essentially, your Honour.

KIRBY J: What lies behind this development? What is the basic rationale for the development of why the standing rights?

MR WHEELHOUSE: One of the matters that would lie behind it, in our submission, would be the explosion of numerous myths, such as the floodgate myth, and the idea that if standing was more freely available the courts would be bowled over by customers, and there is a nice statement of that in Justice Murphy's decision in the ACF Case. That is one of the matters. The second matter is that to which Justice Gummow alluded. In our submission, his Honour has correctly identified that historically an Attorney-General gave his fiat in a disinterested way, and more readily, and our submission is that it is clear that the Attorney-General's fiat is not so readily available now as it used to be. I have not done an historical analysis of that, but the Attorney-General's fiat seems to have been declined in a number of the cases that have come before the Court.

KIRBY J: I think there was some analysis of this in the Law Reform Commission reports; I am not sure.

McHUGH J: Can I suggest to you, perhaps there is another rationale for it, and that is that traditionally courts exist to determine rights between parties. Therefore, the plaintiff must show that he is seeking to enforce some legal or equitable right that he or she has, or to protects some interest which the law recognises. But when you move from that private right area into the public area, what is at issue is a breach of a public duty and, historically, the Court of Chancery insisted upon the Attorney-General, either ex officio or under a relationship of a private citizen, enforcing that right, or nobody enforcing that right in the Court of Chancery. At the same time, people are allowed in criminal cases, criminal prosecute criminally; they are entitled at common law to bring writs of prohibition and certiorari in suitable cases, and there has also grown up this notion that if somebody does have a special interest then that person can enforce the public duty. So, one has a public duty. It is a question whether a private citizen can enforce that public duty.

The courts have developed this doctrine about the special interest, and so one does not have to come within the protection of the statute. It is sufficient to say that if you succeed, you protect some advantage of yours or give you some advantage; or if you fail; the disadvantage of some interest of yours. It is really about the circumstances in which the courts will allow a public duty to be enforced by a private citizen as opposed to the Attorney-General.

MR WHEELHOUSE: But why the court suddenly makes a break away from the strictness that existed prior to, say, Boyce v Paddington Borough Council is not clear. We need merely submit that it has and in the clearest possible terms and there really is no reason to go backwards, we would submit. What is apparent is that the courts must have perceived that there is a substantial need to vindicate the rule of law and as the vindication of the rule of law became less regularly vindicated by the Attorney-General granting his fiat, so did the court open the door to private citizens who could assert that there had been a public wrong committed which caused to those private citizens particular, or special, or sufficient damage.

McHUGH J: There is another factor, of course, among others that have been mentioned today and that is that in England, the Attorney-General was never a member of Cabinet. He stood outside Cabinet so he could give independent advice to the government. That rule has not been followed uniformly in this country but, today, one frequently finds the Attorney-General a member of the Cabinet and, I think, even in England from time to time. So, it has weakened the independence of the Attorney-General. He is no longer independent of the political process to the extent that he was supposed to be in earlier times when he was so perceived. He was given this obligation enforcing these public wrongs, but times change, why should the Court go back to an earlier stage and take its lead from earlier documents of prohibition and certiorari?

MR WHEELHOUSE: Of course, your Honour, once the fiat was granted there was no difficulty with equity coming in aid by granting an injunction.

McHUGH J: But the action was still in the name of the Attorney-General.

MR WHEELHOUSE: Still in the name of the Attorney-General. It was only when the Attorney-General dropped out that all of a sudden it became more difficult to pass through. The issue then arose what, in the absence of the Attorney-General, would qualify the individual to assert that the public wrong had been committed. That is really the question the Court has been grappling with and, in our submission, has done so very effectively in the formulation that has now been achieved.

Your Honour, the fourth point I was going to make was that the respondents have a special interest because their very existence is threatened. This is not a trade rival case in the true sense. We are not the innovator of a pharmaceutical product trying to stop a generic coming on the market. The respondents are fighting for their very existence, even though that existence depends on success in the market.

Your Honour Justice Kirby had pointed to those various passages from the decisions of Justice Sheller and, indeed, Justice Handley, and I will not reiterate that, indicating that the position of the respondents is unique, and they are peculiarly affected in a most serious way, although they stand to be affected in a most serious way by the Act which is asserted to be ultra vires, that of a statutory corporation.

KIRBY J: But the net result of what you are asserting, if you succeed, is that you secure an oligopolist's or monopolist's position and you keep the competitor out - albeit you say a competitor that was acting illegally - but you keep it all to yourself.

MR WHEELHOUSE: We keep out a party that is going to come into the market at an uncompetitive rate, the result of an illegal subsidy. Some other competitor can come into the market and sell the same product by - - -

KIRBY J: I think Justice Handley found that it could not be viable as an insurer. It could not be viable to promise those benefits out of the funds that were being charged to the appellant.

MR WHEELHOUSE: That is so, your Honour.

KIRBY J: Was that found as a fact, or - - -

MR WHEELHOUSE: Something very similar to that, your Honour. I think my note is - I think it is 167, your Honour, line 15 onwards. His Honour makes the statement:

Since the respondents' subsidised scheme would operate in the same limited market, it would have a severe effect on the appellants -

respondents here -

particularly on the business of the first appellant.

And then he goes on to set out the decision of Justice McLelland on that point. That is at 167 and, perhaps, 174. Yes, my learned junior kindly points out, if your Honour reads from lines 5 to 10 on page 167, it says:

The benefits payable under the respondents' scheme could not be funded from subscriptions, and its viability will depend on subsidies from the State Council.

The Funeral Fund Act, your Honour, has a mechanism in it so that you only get your exemption once you can demonstrate economic viability of your scheme. That was one of the reasons for the enactment of the legislation, to make sure that these schemes stood up and did not leave contributors floundering when it became insolvent. So, there is a mechanism in the Funeral Funds Act to make sure that when you have got your exemption and commence trading as a funeral fund operator you had, at the basis of your activity, the capacity of economic viability. 174 was the same, I believe, your Honour. Yes, at line 35:

The appellants have existing businesses threatened by unlawful and subsidised competition from the respondents.

GUMMOW J: In these cases, Mr Wheelhouse, when one is worrying about what the special interest is in these injunction cases, is one really doing any more than asking, what will be the impact upon this plaintiff if this plaintiff is denied injunctive relief? You say, "Well, my business had been damaged."

MR WHEELHOUSE: That is one of the questions that is asked, and that is usually the primary question.

GUMMOW J: Then the court evaluates that in deciding whether to grant the injunction, I suppose.

MR WHEELHOUSE: Yes.

GUMMOW J: If it is a so-called "emotional concern", the court says, "Well, you are no worse off, you just feel sad". We are not going to go around granting injunctions on that sort of footing.

MR WHEELHOUSE: It is a bit like no damages for distress in a death case, I suppose. The theory behind that may be an inhibition from multiplicity of actions and what the Court seeks is a true contradictor with a party with a real interest in the outcome. A mistake in the outcome is regarded as something more concrete than an emotional or an intellectual interest, and that may end up being economic harm or if you are a conservation group with a long history of government involvement, you can show that you have something more than an emotional or intellectual concern, you have a long history of investing money in that endeavour. So that may be something that would give you standing, whereas just a mere belief in the need to keep trees may not. Your Honour, I was going on to make the submission now - I am up to point 5, if the Court pleases.

GAUDRON J: That might be a convenient point to break. We will adjourn - - -

MR HALE: Your Honour, could I perhaps have leave to raise one matter in answer to the Buckley v Tutty point?

GAUDRON J: Yes.

MR HALE: As is made clear in equity doctrines and remedies at page 73, that what was sought to be protected in Buckley v Tutty was a right to work, and that was the foundation for the relief, which is a proposition which was the subject of some criticism at page 61 of Cases and Materials on Equity and Trusts, Fourth Edition, where, at page 61, reference was made to the circulatory of reasoning that conclusion.

GAUDRON J: Thank you. We will adjourn now until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

GAUDRON J: Yes, Mr Wheelhouse.

MR WHEELHOUSE: Thank you, your Honours. Before the break I was about to commence point five of the eight points that I was seeking to make in oral argument.

KIRBY J: This is an eight-point plan?

MR WHEELHOUSE: This is an eight-point plan, your Honours. It may be slightly shortened, I hope. Your Honours, the fifth submission was that the Court should not adopt a more restrictive approach to standing for the following reasons. Firstly, the test recounted by my learned friend is difficult to apply and uncertain. Rather than by its restriction making the court's task easier, it is our submission that the task becomes more complicated and that is because it is often very difficult to determine, in our submission, what is the zone of interest or the class of person sought to be protected by a particular statute, particularly when a statute is multi-focused, as is the Aboriginal Land Rights Act, which is the legislation primarily in question here.

Our primary submission is that even if the more restrictive approach was to be taken, the respondents would be entitled to standing in any event because of the very broad basis of the Aboriginal Land Rights Act and, indeed, the Funeral Fund Act. In particular, it is the respondents' submission that the Aboriginal Land Rights Act imposes a public duty on the second respondent not to expend money ultimately derived from the public outside the authority given to it under the Act and it is for that reason that any citizen damaged by such an ultra vires Act would be in the class of persons that the legislation would seek to protect.

KIRBY J: Citizen or taxpayer or resident? Once you start pushing it out, you have got to define who can do it. Why citizen, why have they got to be a citizen? This is a country with lots of people who are not citizens.

MR WHEELHOUSE: That is one of the difficulties that we say arises. Here, your Honour, it may be argued that as section 28 of the Aboriginal Land Rights Act provides a mechanism whereby the revenue used by the second respondent is derived from land tax collected from citizens in New South Wales, does that mean - - -

KIRBY J: No, no, no, it is collected from taxpayers. Many non-citizens are taxpayers.

MR WHEELHOUSE: But it is a particular mechanism for collection in this piece of legislation. Under section 28 it is 7.5 per cent of the land tax, so it may be arguable - - -

KIRBY J: Many who pay land tax are not citizens, they are residents.

MR WHEELHOUSE: Of course, your Honour. What I am trying to exemplify by these submissions is the difficulty that one has if one takes the restrictive approach. If one is saying, "Let us look at the class of persons that are protected.", that would include all persons from whom the revenue is derived under section 28, namely all land tax payers in New South Wales, or you could say it protects all persons in New South Wales because they are ultimately beneficiaries of the consolidated revenue and thus the idea of identifying what is the interest sought to be protected by the legislation when the legislation imposes a duty on individuals not to expend money derived from consolidated revenue otherwise than in an authorised way, it becomes a very difficult and clumsy argument. That is the first submission that we make as to why it is not, in our respectful submission, of assistance to go to the more restrictive approach.

The second reason, your Honours, is that the more restrictive approach would be against the trend of authority, particularly of this Court, and in due course I will take the Court to some of the decisions, hopefully in a very short way. We say that the general trend of authority as exemplified by ACF and Onus et cetera is in the direction of opening up standing and relaxing the tests for standing.

The third reason is this: that the restrictive test fails to recognise the importance of vindicating the rule of law. This is the point Justice Gummow was making earlier in the day - that it would be an extraordinary situation if the appellants could proceed down this scheme in the clear knowledge that their activity is ultra vires the powers given to them as statutory corporations and that a party in the situation of the respondents here could do nothing to limit that activity.

Our submission is that it is particularly important to vindicate the rule of law in circumstances where, as here, the unlawful act emanates from an act of the executive, and here we point to the form of the exemption. Secondly, where the State itself is a party to the document that is the subject of the submission that it encapsulates by the guarantee given in clause 22 of the trust deed, the illegality, and that is underlined by the fact that in this particular case the Attorney-General has declined his fiat. So, in our respectful submission - - -

KIRBY J: At what point was the fiat sought?

McHUGH J: After Justice McLelland's decision.

KIRBY J: That was after the standing decision, but before the substantive decision and pending the appeal, was it?

MR WHEELHOUSE: I think that is right, your Honour. It was during the course - what happened was that his Honour gave a decision on the first trial, as it were - - -

GUMMOW J: Well, it is in Justice Handley's judgment.

MR WHEELHOUSE: It is, your Honour. I think it was during the stay application after trial, yes, that is right. I am sorry, I had just forgotten.

GUMMOW J: His Honour continued the interlocutory injunctions, stood over the proceedings to enable the fiat to be sought. The fiat was declined and then the judge dismissed the proceedings.

MR WHEELHOUSE: Yes. That was after his Honour had delivered his reasons we indicated - - -

GUMMOW J: Yes, but before he made the formal orders.

MR WHEELHOUSE: Yes. He indicated in the dicta his reasons the force of legal argument that had been put.

GUMMOW J: The same course was followed in Helicopter Utilities, I think, but in that case the fiat was eventually given.

MR WHEELHOUSE: I was unaware of that, your Honour. I was curious to know what happened at the trial because Justice Jacobs' decision - and he turns on the interlocutory point - he was persuaded not to grant the injunction, not because he came to a concluded view as to the right of standing but on the basis that he thought, at interlocutory level, because of the prior authority which he regarded as binding upon him, he ought not to grant the injunction in the circumstances. But I had not followed up what happened at the trial.

That was the third point, to say that fundamentally the court's relaxation of the right of standing derives from a need to vindicate the rule of law and this particular case is a very good example of why the right of standing ought not to be limited.

KIRBY J: The proposition begs the question, in a sense, that if the appellants are right, then the rule of law is what you can do under the statute.

MR WHEELHOUSE: Well, if the appellants are right, you can do most anything you like under the statute, in a sense, and remain unchecked. That is the difficulty that the respondents grapple with.

Your Honours, I was going to read to the Court, if I may, the passage from page 35 of Onus where Chief Justice Gibbs talks about the need to vindicate the rule of law as part of the balancing matters that the Court needs to take into account in coming to a final view of the appropriate test for standing. The passage commences at about point 4:

The case is therefore one in which two private citizens who cannot show that any right of their own has been infringed bring an action for the purpose of restraining another private citizen (Alcoa) from breaking the criminal law by acting in contravention of s 21 of the Relics Act.

That would tend to suggest that the construction that Justice Brennan - my learned friend has argued that Justice Brennan has put upon the standing right does not prevail so far as Justice Gibbs is concerned.

The question is whether they have standing to bring the action. If an attempt were made to frame an ideal law governing the standing of a private person to sue for such a purpose, it would be necessary to give weight to conflicting considerations. On the one hand it may be thought that in a community which professes to live by the rule of law the courts should be open to anyone who genuinely seeks to prevent the law from being ignored or violated. On the other hand, if standing is accorded to any citizen to sue to prevent breaches of the law by another, there exists the possibility, not only that the processes of the law will be abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to very great cost and inconvenience in defending the legality of his actions. Moreover, ideal rules as to standing would not fail to take account of the fact that it is desirable, in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings. The principle which has been settled by the courts does attempt a reconciliation between these considerations. That principle was recently stated in Australian Conservation Foundation Inc v The Commonwealth. A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.

GUMMOW J: Now, what do you say, Mr Wheelhouse, as to the passage you read at the bottom of 35 beginning about 10 lines up, "Ideal rules as to standard," et cetera, when connected with what was said by Sir Anthony Mason in the Conservation Foundation 146 CLR at 550 to 551, namely, at least in the federal sphere, the notion of matter and controversy and something really at stake?

MR WHEELHOUSE: May I just find that, your Honour? May I ask your Honour where your Honour is referring me to in Justice Mason's decision in ACF?

GUMMOW J: It starts at 550, the last paragraph, "Although there are obvious similarities", you see.

MR WHEELHOUSE: I cannot see that there would be a conflict in that, your Honour, because what the two Justices are - - -

GUMMOW J: I am not suggesting there is. But what principle do they appear to indicate? Connected with the further principle comes the general law about not making declarations in hypothetical situations.

MR WHEELHOUSE: I was going to say that the clear similarities that they see in that adversarial system, there has to be a real question at issue between the parties so that there is a genuine, as it were, conflict. That is, I suspect, what Justice Mason is alluding to when he talks about the obvious similarities between the Australian Constitution and the way standing was being perceived in the Australian courts; namely, because of Chapter III of the Constitution in the United States the - - -

GUMMOW J: And then, at 551 his Honour says:

I say nothing on the question whether the Parliament can legislate so as to provide that a mere belief or concern is a sufficient locus standi in federal jurisdiction.

MR WHEELHOUSE: Clearly their Honours are excluding the idea that you can litigate on the basis you have an emotional or intellectual interest in the subject matter of the litigation. You must have, as it were, a clear detriment, or a clear benefit, consequent upon the result of the litigation in the form that Justice McHugh was talking about.

One would say that a disappointment intellectually or a disappointment emotionally would not be positive or an adverse consequence of litigation sufficient to give you standing.

GUMMOW J: Yes, but suppose you thought that there was a religious tenant to which you subscribed which was offended one way or another, is that enough?

MR WHEELHOUSE: On an expansive view of standing, the answer to the question is yes.

GUMMOW J: There are a lot of religions in this country now.

MR WHEELHOUSE: Your Honour, I am going to go on and make one or two short points in relation to where the future lies at the end of this debate and I have brought with me the Law Reform Commission's most recent paper and the most recent paper in the ALJ. That would suggest a very much relaxation of the rules of standing but for the purpose of this action that I appear in, I am quite content to not venture into the big picture but to stay close in the corner where my case is founded which it does squarely on the existing law of Onus and ACF.

GUMMOW J: When you come here, you have to look a little bit beyond your blinkered view, you see, that is why you are allowed to come here in the first place.

MR WHEELHOUSE: May I then say modern commentary tends in the direction of a single test for standing across the board. Now that, of course, is contradicted by any specific piece of legislation that the Parliament may pass from time to which contains in it an express restriction as to standing. Secondly, a more relaxed rule as to standing, indeed a move away from special interest to sufficient interest.

KIRBY J: Is that relying prey on anything else in the latest ALJR journal? I mean, what are you relying on in support of this proposition? Is it other academic writing or is it decisions of other Supreme Courts?

MR WHEELHOUSE: It is primarily on the Law Reform Commission's most recent paper evaluating the earlier Law Reform Commission paper.

GUMMOW J: Well, the one thing the Law Reform Commission is not up to speed with is the United States law for one thing, which is narrowing rather than broadening support - - -

MR WHEELHOUSE: Yes, I accept that.

GUMMOW J: So why we should immerse ourselves in their cogitations, I am not completely sure.

MR WHEELHOUSE: This Court has often said, as has been in that passage by Justice Mason in ACF, that the United States authority is not of great assistance because of the peculiarity of their Constitution and the effect that that has on the manner in which they must deal with the standing question. That is one matter. The second matter - - -

GUMMOW J: Well, his Honour has just said that it is the same. That is why I referred you to the Conservation Cases. He says it is rather similar.

MR WHEELHOUSE: Your Honour, as I read it, he says there are similarities because of the need to identify - - -

GUMMOW J: It is fundamental. The idea of case and controversy in matter is a fundamentally similar idea and it underpins the whole of the appendant jurisdiction.

MR WHEELHOUSE: Your Honour, my submission in relation to the American authorities is they are not of a great deal of assistance primarily because they had developed a different formulation of the test and there has been, I accept, a retreat from the very broad view that prevailed for a short time, but I would be assisted if I could do a short note on the American authorities and deliver that to the Court.

KIRBY J: Well, you might add the Canadian, and New Zealand and English, if there are any, recent authorities on standing of a general character in those jurisdictions. I would be helped by that.

MR WHEELHOUSE: The academic writing that I was referring to was the article I referred to in my written submissions; namely, the book by Professor Aronson. I made a note as to chapter 12 in his book. He deals with recent authorities within Australia and elsewhere on the question of standing, and I will take the Court to that in due course.

The point I was making before the discussion was that one of the fundamental balances that the Court seeks to achieve in formulating a rule as to standing is the need to vindicate the rule of law, and that is, we say, what Justice Gibbs was pointing to in Onus, and the more restrictive the approach, the less there is the opportunity to vindicate the rule of law in circumstances where there is an ultra vires act, for example, of a statutory corporation, or an illegal exemption that cannot be challenged if it is attached to legislation that is not enacted for the party that is the victim of the illegal act.

The fourth reason is this: in our respectful submission, for my learned friend's submission to prevail will, in fact, require the Court to overturn Onus. In our respectful submission, Onus is very much in support of the proposition that the rules of standing should be relaxed and flexible, and to move in the direction of a more rigid approach by adding to the test that you only obtain standing if you come within the class of individuals identified as intended to be protected by the legislation that underpins the illegal act, in our respectful submission, you turn away from Onus. My learned friend, of course, has not put that in his submissions, and he ducked rather skilfully the proposition when asked is he making a submission that the Court should go backwards in time and move away from Onus.

GUMMOW J: It is said against you that Onus is an illustration of the point for which Mr Hale contends.

MR WHEELHOUSE: Yes. My learned friend focused his submissions in that regard on the decision of Justice Brennan.

GUMMOW J: No; it all turned about the Archaeological and Aboriginal Relics Preservation Act.

MR WHEELHOUSE: It did.

GUMMOW J: That is what these plaintiffs were intimately worried about.

MR WHEELHOUSE: One could say that that particular piece of legislation was of interest to the whole of the citizens of Victoria, because it was not only limited to Aboriginal artefacts, it was limited to archaeological sites generally, so, if one was to identify then - - -

McHUGH J: I am not sure; well, it may have been, but "archaeological relic" is defined to include a relic pertaining of a past occupation by the Aboriginal people of Australia.

MR WHEELHOUSE: No, your Honour, I had thought that there was a more broad definition of "relic" for the purpose of the legislation than that. I may be erroneous in that thought.

McHUGH J: At page 40 there is a definition of this.

MR WHEELHOUSE: Yes, thank you, your Honour. It was an inclusive definition?

McHUGH J: Yes, it is inclusive. Justice Stephen seems to think that it is not limited to Aboriginal.

MR WHEELHOUSE: Is it Justice Stephen? Your Honour, in due course, if I may, just so I am not deflected from my eight points, come back to deal with those one or two cases in sequence if I may and I will be putting a submission in due course that Justice Brennan, in fact, adheres to the broader test as indicated in ACF and while he goes through the exercise of identifying how the standing arises because of the interest under the statute, he does not couch his decision in terms of saying that unless such an interest was identified, the plaintiff would have been excluded from jurisdiction, which is the argument that my learned friend is putting and, in our respectful submission, Justice Brennan's decision does not come to that point.

He just says the starting point is to identify what work does the statute, where the illegality is founded, seek to do and that, in my respectful submission, is very different from saying that a party will only have standing if it can show it comes within the class of persons identified as requiring protection by that statute. Your Honour does not seem to be expressing as hard line as that, in my respectful submission.

Your Honour, the sixth submission that the respondents make is that the question of standing in relation to a particular regulatory statute has no relevance to the equitable common law position. Each will depend upon the particular words of the statute and whether the legislature has expressly limited the class of persons who have standing to seek redress under the statute.

This case, your Honour, is not about judicial review of administrative decisions generally. This case is about whether or not a party has a right to challenge illegal conduct and the analogy given by my learned friend about the ferry timetable being cancelled, in our respectful submission, is not germane to the argument. It may well be that acting quite lawfully, the man in charge of ferry timetables, to conserve fuel, can change the timetable of ferries and thereby damaging the economic interests of those that have newsagents that are open at the ferry terminal. But, your Honour, that is not this case. There is no suggestion by the administrator making that decision that there follows an ultra vires act or an illegal act and, in our respectful submission, there clearly is a difference between the two forms of administrative decisions when one comes to analyse the basis upon which standing accrues to a party.

In our submission, your Honours, a brief history of the development of principle in Australia shows that while the Court has not expressly departed from the principles in Boyce it has chosen to mould the second limb of Boyce so that an expansive - - -

GUMMOW J: There are no principles in Boyce, it never condescended to any explanation. It is just a pragmatic assertion by one judge in the Chancery Division.

MR WHEELHOUSE: I would not be bold enough to make that submission, but I am happy to show some enthusiasm when it falls from your Honour. But we say, your Honour, that effectively - - -

KIRBY J: Having gathered a little bit of support on the way, though, on application over the years.

MR WHEELHOUSE: It obviously is the most frequently quoted authority for the difference between the standing in a private right as of that in a public right.

GUMMOW J: It is, I know, as an excuse for further analysis which is why we have been here debating since 10.15.

MR WHEELHOUSE: My point essentially is, your Honour, that what has happened is that while the Court has not expresslly stated they are departing absolutely from Boyce without recognising those principles, what it has done is to mould the second limit in an expansive way and that is what Justice Gibbs did, of course, in Onus when he dealt with the meaning of "special damage" that appears in Boyce. But I need not labour that argument.

Essentially, the test propounded by Justice McLelland, in our respectful submission, ought not to be adopted because it takes too rigid approach and it is too, in our respectful submission, rooted in the dicta that flows out of Boyce which has been obviously substantially departed from by this Court.

KIRBY J: By the way, I notice in the appeal to the English Court of Appeal in Boyce, the procedure was followed of when the court intermated their opinion, "It would be better if the Attorney-General were added as a plaintiff", the case was stood over to allow that to happen. The court assented and the Attorney-General authorised the use of his name.

MR WHEELHOUSE: Although, your Honour, that probably demonstrates in a - - -

KIRBY J: That is (1903) 2 Ch 565.

MR WHEELHOUSE: In a sense, your Honour, all that the Boyce dicta results in perhaps is just the extra step where it is the Attorney-General who then decides whether public wrongs should be the subject of litigation. The general trend, we would say, is to remove that step and allow the courts to determine what matters should be litigated before it. The mechanism of the court has done, the mechanism the court has chosen to do that is the special interest mechanism and to say that emotional, intellectual, special interests are excluded from litigation. But other than that, it has left the test very much so that each particular case depends on its circumstances, adopting a flexible approach and saying that the cases are infinitely variable, and they are, and avoiding being locked into a rigid structure so that the court cannot allow meritorious cases to be brought before it. In our respectful submission - - -

GUMMOW J: It is of that looseness that Mr Hale complains, you see.

MR WHEELHOUSE: Pardon, your Honour.

GUMMOW J: It is of that very looseness that your opponents complain. They say that is not a principle at all, that is a farm trend - - -

MR WHEELHOUSE: Your Honour, we do not ask the court to move into the area of discretion. As the Court has said, Justice Stephen in particular, that if the Court wants to go into the discretion, perhaps this is a matter for Parliament.

GAUDRON J: But why not in a sense? At least where you are speaking of injunctive relief, that has always been a discretionary remedy, and so there may, at the very least, in that area, be discretionary considerations which would militate against the grant of an injunction even if a low standing threshold point were established.

MR WHEELHOUSE: Your Honour, I have no fear in making such a submission. I am constrained by the dicta that has fallen from the Court previously to say that, as Justice Brennan has said, the Court has to be guided by principle, and then identified the - - -

GUMMOW J: Yes, I know, but they are looking at the beginning. We are being invited to look at it at the end, and this is an injunction.

MR WHEELHOUSE: Your Honour, I have no difficulty in making such a submission but, as I have indicated to you, I would be constrained in making such a submission by the fact that the Court has said, at least on two separate occasions, that discretion is beyond that which the Court can venture into.

GAUDRON J: It does seem, though, that the strict, if you like, standard rule seems to have been formulated without regard to discretionary circumstances in which relief might be refused.

GUMMOW J: And that is why, to my mind, it is an unsafe analogy, to rely on O'Connor v Bray and so forth, because they are not about giving a discretionary remedy, they are about giving damages.

MR WHEELHOUSE: Yes. My submission was going to be, perhaps in response to what Justice Gaudron was saying, that one of the problems is that the Court has taken this bifurcated view of looking at each remedy separately and saying, "We cannot look at whether or not we can grant relief in the form of an injunction in the same way as we would under certiori, because the two vehicles for relief have come up with different histories and each have their own unique basis" whereas, we would submit, perhaps the time has come where there ought to be seen to be a uniform approach to standing across the various remedies. But that is a bold submission that I do not need to make for the purposes of sustaining my clients' position as enunciated in the Court of Appeal.

GUMMOW J: I am just trying to extract some principle at the moment about injunctions. We can deal with the world tomorrow.

MR WHEELHOUSE: And I have been reticent about that, your Honour. In our respectful submission, it would be appropriate if the question of standing in relation to the granting of injunctions was determined by the question of whether or not a party had a sufficient interest to warrant the exercise of the discretion in his or her favour - his or its favour.

GAUDRON J: But it does not seem to me that sufficient interest adds anything by way of clarity to the notion of special interest.

MR WHEELHOUSE: It may reduce the threshold slightly, that is the only reason why I say that, your Honour.

GAUDRON J: Either you take the view, I would have thought, that there is a sufficient and/or special interest because, if the relief is granted, there will be some benefit to the applicant for relief, or he will be relieved of some detriment, or you go to the position advanced by Mr Hale. There does not seem to be any really satisfactory midpoint for analysing the situation, does there?

MR WHEELHOUSE: With respect, in my respectful submission, the satisfactory midpoint has been identified well by Onus in the sense that if there is an individual likely to be - and I use "damage" because that is the case that my client brings forward here - who is likely to suffer a substantial detriment by a public wrong, one of the matters that may be taken into account on the question of whether or not the court should exercise its equitable jurisdiction to grant an injunction, is whether or not that public wrong would be remedied in any other way except by the court making order, such as, the question whether the Attorney-General gives his or her fiat or not. If there is a denial of that and the public wrong goes unchecked, that is a matter that can be put into the question of discretion and that may be seen in terms of a sufficient interest rather than a special interest. That may be an argument of semantics.

In my respectful submission, the threshold should be low but it should include, as a minimum analysis, an obvious detriment, beyond the intellectual and emotional, and bring forward a situation where there is a question properly triable in the adversarial situation. So that you are not just dealing with the theoretical or making a declaration at large, or anything like that, where you have a real controversy between parties. But beyond that, it is difficult to see why there would be any justification for a restriction on standing because all that the restrictions do is build edifices around which lawyers can construct arguments. In our respectful submission, that becomes artificial when - - -

McHUGH J: But lax rules on standing encourage litigation and people have different views about this but I am with learned Hand, I regard litigation, if not evil, as something to be avoided.

MR WHEELHOUSE: I do not know, your Honour. That is a bit harsh.

McHUGH J: There are solicitor and client costs that are never recoverable, people's time is taken up, resources of society are distorted.

MR WHEELHOUSE: That is the very reason why the busybody does not come to the courts. There are enormous numbers of barriers in the way of litigious process, financial, being one of them.

McHUGH J: One cannot shut ones eyes to a number of actions that are brought by individuals in person enforcing rights which they perceive to be - bringing actions against defendants. There would be no shortage of litigants. It is almost an industry with some people. It has all to be balanced but I do not know that the Court should accept the thing that litigation is a good thing. Outside the colony of lawyers, I do not think you will find too many people thinking that litigation is a social benefit.

MR WHEELHOUSE: That is true, your Honour, but outside the colony of lawyers there would be those who would say the right to say that one has been damaged by an illegal act - - -

McHUGH J: That is another question, you see.

MR WHEELHOUSE: Not litigation for litigation's sake.

McHUGH J: Once you can show that your rights are impinged or some interest of yours is affected, even a different area, but to say that anybody can bring an action, commence a suit, and that it is for the public benefit is an argument which to my mind cannot be made out.

MR WHEELHOUSE: Your Honour, of course that is not the present test. The special interest- - -

McHUGH J: I know it is not, but I thought you were getting very close to it.

MR WHEELHOUSE: No, I am supporting the status quo for the purpose of my argument, but if I am invited to go into the future, I submit that that is the way the future is going, but, your Honour, what my learned friend's submission amounts to is that the closer you get to the analysis of what is the right that exists under the statute which gives you the definition of being within the class of the persons for whom the protection of which the statute has been enacted, you are getting closer and closer and closer to the first limb of Boyce and you are getting closer and closer to a private right and really what the Court is looking at is not dealing with private rights that are given by statutes, the Court is dealing with how does the Court wrestle with the question of standing in circumstances where a person is particularly affected, not necessarily uniquely, but particularly affected as a result of a public wrong.

So the analysis that forces you down the track of identifying the protected class within the statute really is just forcing you in the direction of the first limb of Boyce and is avoiding the real question and the more that one constructs a narrowing argument, the more one just retreats back into Boyce and back into the position where you only have a right if you have a private right, you only have a right of audience if you have a private right that has been infringed, otherwise you need the Attorney-General's fiat and, of course, there must be ultimately a balancing act, but really what the Court is ultimately addressing is what is the standing to redress a public wrong that particularly impinges upon you as a litigant and that, your Honours, is perhaps the reason why this case does contain a point of principle.

GUMMOW J: Well, there is a problem of apprehended multiplicity of actions too, I suppose.

MR WHEELHOUSE: Yes, there is no question about that and, of course, some of the decisions say that, for example, an ACF-type case where the day after incorporation ACF tries to litigate and the court says no standing, but 25 years on when it has become a large edifice with 30,000 members and collects funds and does have committees and attends on governments, it then brings forward that which is essentially an emotional intellectual interest and the court says, "Oh, because you have got this track record, you are now more likely to have standing than you would have had if you were on the first day", and there is no rational reason for that, but that seems to be the trend.

In the environmental cases, which are now numerous, you are more likely to obtain standing if you have a track record of commitment to the cause and you have a recognisable organisation and you have got members and the proper structure and constitution than if you are a disorganised person that no one has ever heard of and there seems to be no rational reason for that because the interests are not necessarily different, but I am not here to justify that position. So, your Honour, as part of my seventh point which I just made I was going to go to one or two of the cases and I suspect that it is not appropriate that I do that in an extensive way but perhaps may I just mention the purpose for which each of the cases were on my list of authorities rather than going through them extensively.

Helicopter Utilities I have put on my list of authorities to demonstrate that really it does not stand for any matter of principle because it was an interlocutory matter, and Justice Jacobs did not come to any concluded view about the question of standing. Phillips v New South Wales Fish Authority I put in because that was the commencement by Justice Mason when he was sitting on the New South Wales Court of Appeal, of his standing test that ultimately found favour in ACF. That is at 72 SR(NSW) and the particular passage is at page 310. Of course, this is the case where an economic interest was involved, and I put it in the list of authorities to support the proposition that there is no rational reason why one should discriminate against economic interests. He says on page 310G:

Here it is evident that the respondents have a substantial interest in the resolution of the matter at issue, namely their liability to pay parking charges to the appellant. The learned judge has found that as a matter of commercial reality the respondents have no option but to use the appellant's parking space in order to carry on their business. They have done so regularly in the past and intend so to do in the future. The issue is, therefore, one which concerns the pecuniary liability of the respondents and which is in no sense an academic or hypothetical issue.

That is Justice Mason in the New South Wales Court of Appeal and it is getting very close to the statements he made subsequently.

I next put on Robinson v The Western Australia Museum, 138 CLR 283. Again, that is an economic interest case, and the decision of Chief Justice Barwick at page 292, when he disposes of the question of standing. He says:

I can dispose briefly of the question of the plaintiff's interest to maintain his suit. It is said on behalf of the defendant that the plaintiff has no greater interest than any other member of the public to contest the validity of the Western Australian Acts. That proposition has been pressed upon us by the Solicitor-General for Western Australia. But I am clearly of the opinion that the plaintiff has a greater interest than any other member of the public to seek the assistance of the Court to determine the validity of the legislation. He located and relocated -

et cetera.

KIRBY J: I think you set this out in your written submissions, do you not?

MR WHEELHOUSE: Yes, I have referred to - - -

KIRBY J: Or it might have been in the opinion of Justice Sheller.

MR WHEELHOUSE: Yes, it is, your Honour. In my written submissions I have set out various passages that I rely on, and I do not want to be tedious and repeat them in my oral argument. It is not necessary for me to do so. What I wish to do is just identify the reasons why each of the cases was on the list of authorities rather than, perhaps, read slabs of the judgments out, if that is a sufficient course for the Court. At page 293:

The plaintiff is not merely in the position of a member of the public who falls within the prohibition of the statute.....I conclude that the plaintiff has a sufficient interest to maintain his suit.

So, Chief Justice Barwick uses the word "sufficient". Down at the bottom of page 301, Justice Gibbs, as he then was, says:

In my opinion the plaintiff had a special interest of another kind in challenging the validity of the legislation. He had worked on the wreck -

So, in Robinson the Court clearly identifies that the plaintiff has an interest beyond that of any other member of the community, and it can be described as a sufficient or special interest, and his particular interest is that he had worked and located, it was asserted, and was likely to suffer a detriment because he would not be able to claim the reimbursement of the costs incurred by him in exploring the wreck, as the result of the form of the regulation that was being passed.

This case becomes very close to a private right but, your Honours, our primary reason for putting the judgment in is to identify just how the doctrine of special interest developed and it, in our respectful submission, starts essentially in - the first obvious statement is in the Phillips Case and then it comes into Robinson. Justice Mason's decision appears at 326, and the relevant passage is at 327, and Justice Mason tries to give a rationale for the rule. He says, at about point 6:

The rule is generally expressed in the proposition that a person not affected in his private rights may not sue for declaratory relief.

And further down:

in Anderson v The Commonwealth when their Honours said that the right of an individual to bring an action for an ultra vires declaration does not exist "unless he establishes that he is `more particularly affected than other people'.....The rule is said to be directed against multiplicity of actions. In truth it reflects a natural reluctance on the part of the courts to exercise jurisdiction otherwise than at the instance of a person who has an interest in the subject matter of the litigation in conformity with the philosophy that it is for the courts to decide actual controversies between parties, not academic or hypothetical questions.

So, Justice Mason is clearly dealing with the problem that I referred to earlier.

Reflection on the considerations which underlie the rule do not provide much assistance in defining the nature of the interest which a plaintiff must possess in order to have locus standi.

That is one way of avoiding Justice McHugh's question.

However, it does indicate that the plaintiff must be able to show that he will derive some benefit or advantage -

and that is the passage that, perhaps, was in Justice McHugh's mind mentioned earlier -

over and above that to be derived by the ordinary citizen if the litigation ends in his favour. The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought - - -

GUMMOW J: Why need it be over and above that of the ordinary citizen, if the litigation ends in - if there is some material advantage to all citizens, why does the successful plaintiff, in order to have standing, have to be in an extra special class beyond that class which is already materially advantaged?

MR WHEELHOUSE: To avoid multiplicity of actions, I suspect, your Honour.

McHUGH J: That would mean if 1,000 people are materially affected, none of them can bring the action and, if one of them were affected, they might be able to.

MR WHEELHOUSE: Justice Brennan, in effect, says you do not have to show that you were uniquely affected, but you do need to show, in some way, that you are a member of class that is peculiarly affected. For example, in relation to the relics legislation of Victoria, someone from South Australia could not complain about the fact, perhaps, that Alcoa was going to illegally build its factory on an archaeological site. Similarly, someone from South Australia could not complain about the fact that the statutory corporation in this piece of litigation is acting in an ultra vires way. Beyond that, it is difficult to see how one can make any definitive statement about the extent of the class from whom the person specially affected may arise. On page 328, his Honour says:

for what is a sufficient interest in one case may be less than sufficient in another. Here the plaintiff does not seek performance of a public duty; nor does he assert that he will suffer special damage through interference with a public right - cases which are notorious for their difficulties. Here the legislation, if it is valid, deprives the plaintiff of a right of reimbursement which he would otherwise have or be entitled to claim. It also imposes obligations upon him to which he would not otherwise be subject. This is enough to support locus standi in an action for a declaration of invalidity.

It is a bit of a chicken and egg argument. In one sense, Justice Mason says that if you look at the legislation you can see how it particular impacts upon him, therefore, he gets standing. But he does not say, "Unless I can identify in the legislation that it will particularly impact upon him, I must exclude him from standing." In my respectful submission, Justice Mason's analysis is correct, and that one should not see the statute as defining the position but, if the statute has a particular effect upon an individual as a member of a class of individuals that are affected by the legislation, well, then, that is one of the matters that may give standing, but it ought not to be seen as an exclusionary matter. In my respectful submission, the decision of Justice Mason is consistent with that proposition.

Justice Murphy's decision in Robinson is found at 344 and, of course, his Honour there refers to the United States' decision of Baker v Carr. At the bottom of 344, his Honour says:

"The gist of the question of standing" is whether the plaintiff has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."

So his Honour takes a very broad view of standing. Of course, his Honour was in the minority in ACF as a result of that very broad position that he took. The next case was the Air Express Limited Case 146 CLR and again that is a case where commercial interests were involved and that is a case on the list of authorities for that purpose. When Justice Aickin decided the case sitting at first instance in the High Court's original jurisdiction, at page 256 of the decision his Honour effectively follows the dicta in Robinson v Western Australian Museum. He says:

It was affected in its private rights and had a greater interest than other members of the public. The relevant principle has recently been restated by four members of this Court in Robinson v. Western Australian Museum and it is sufficient to refer to the following passages -

and he quotes the passage from Justice Barwick, Justice Gibbs, Justice Stephen and Justice Mason, two of which I have quoted to the Court. What Justice Aickin says is that he is happy to adopt the test, the broad test as set out in Robinson and then, your Honour, when the matter comes to be dealt with by the Full Court, and that starts at 309, the issue of standing is not mentioned. It is the silence that rings loud because their Honours seem to have accepted that the statement of principle as indicated by Justice Aickin prevails.

GUMMOW J: Counsel seems to.

MR WHEELHOUSE: Perhaps counsel accepted that, your Honour, that that which had fallen from Justice Aickin was sufficient on the question of standing. But, your Honour, my point is that the issue of standing does not, as I read the Full Court's decision, come up for further discussion which would suggest that the Full Court was content with the enunciation of principle by Justice Aickin.

The next case, of course, is ACF v The Commonwealth 146 CLR. Your Honour, Justice Aickin again sat at first instance. The relevant passage from Justice Aickin starts at the bottom of 507 and goes over to 508. I will not read that, your Honour. He says in a concluding remark at page 511:

This leads me to the final matter for consideration. In my view the authorities to which I have referred above establish that it is an essential requirement for locus standi that it must be related to the relief claimed. The "interest" of a plaintiff in the subject matter -

is an exception. He says that there was no standing because there was no relationship between the relief claimed and the asserted right. Your Honours, Justice Gibbs' decision is at page 526. It was the statement of principle by his Honour. He says about the middle of the page - - -

KIRBY J: Which page are you reading?

MR WHEELHOUSE: Page 526, 146 CLR Australian Conservation Foundation v The Commonwealth, a decision of Justice Gibbs.

G1UMMOW J: Before you refer to Justice Gibbs, what Sir Keith Aickin says at page 511 is significant, in a way, because his Honour is looking, as other members of the Bench were doing, at the end result, you see. Look at the paragraph on 511. What his Honour is saying it seems to me is different to the other tests. It is one to my mind I readily understand: "There is no relationship between that relief" etcetera. What effect does the relief have if granted upon this position asserted by this plaintiff? That is what he is thinking about.

MR WHEELHOUSE: Yes.

GUMMOW J: In concrete terms.

MR WHEELHOUSE: "What impact does it have on the particular plaintiff", he is saying.

GUMMOW J: That is what he saying.

MR WHEELHOUSE: Yes.

GAUDRON J: That is to say it is not, in a sense, hypothetical, academic. It may be the more direct way of saying "special interest".

MR WHEELHOUSE: Yes. Looking at the outcome rather than, perhaps, say, is there a basis - - -

GUMMOW J: That is right. Now, is that passage in Sir Keith Aickin's judgment taken up in any of the endless academic writing on this subject?

MR WHEELHOUSE: I do not know, your Honour.

GUMMOW J: No. It would be good to know. Anyhow, you were up to Justice Gibbs.

MR WHEELHOUSE: In a sense ACF is a difficult vehicle for the argument on standing because the plaintiff there took part in the processes that led to the decision that was thought to be challenged in the litigation; in a sense, had two bites of the cherry. I was reading at page 526 where his Honour says, in dealing with the second limb:

It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.

So his Honour is then drawing a distinction between the assertion of a public right - the assertion by an individual that there has been a public wrong when the individual has no interest beyond that of any other member of the public.

He says in those instances the correct litigant is the Attorney-General or with a relator. Then he goes on to say but where there is the special interest standing then exists to be asserted by the individual. About halfway down page 527 his Honour goes on to give the famous paragraph where he explains the meaning of the words "special damage" in Boyce. He says:

Indeed the words which he used are apt to be misleading. His reference to "special damage" cannot be limited to actual pecuniary loss, and the words "peculiar to himself" do not mean that the plaintiff, and no one else, must have suffered damage. However, the expression "special damage peculiar to himself" in my opinion should be regarded as equivalent in meaning to "having a special interest in the subject matter of the action".

At page 528 his Honour endorses the broad test at about point 5:

Again, more recently, the majority of this Court applied a similar test in Robinson v Western Australian Museum. Although, in some cases (such as Thompson v Randwick Municipal Council) the formula of Boyce v Paddington Borough Council is, naturally enough, repeated, the broad test of special interest is, in my opinion, the proper one to apply.

And he quotes various other passages from Robinson and then at the top of 529 he says that it is not appropriate for the Court to move into a discretionary test and to move away from the proposition of special interest having to be shown. He says:

In any case, if the law is settled, it is our duty to apply it, not to abrogate it. It is for the Parliament, whose members are the elected representatives of the people, to change an established rule if they consider it to be undesirable, and not for judges, unelected and unrepresentative, to determine not what is, but what ought to be, the law.

So he says that the principles are essentially settled and it is a matter of legal principle and that swings around the proposition of special interest and the question of standing should not be a general discretionary matter and the Court should not venture beyond the point that they had reached in Robinson. At page 530 his Honour expands upon the question of special interest for the purpose of the ACF Case. Down the bottom he says:

I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi.

GUMMOW J: You said you were not going to read extensive passages, Mr Wheelhouse.

MR WHEELHOUSE: I will stop. I will not go through any more of those ACF passages.

KIRBY J: I notice just on 530 that Justice Gibbs refers to New Zealand authorities. Have there been any development in New Zealand?

MR WHEELHOUSE: I do not know, your Honour, I have not looked at the New Zealand authorities.

KIRBY J: We ordinarily do look at Canada and New Zealand.

MR WHEELHOUSE: Yes, I can attend to that, though, if your Honour wishes me to do so. The submission that I was making based on those authorities, your Honour, was to say that the principle was well settled before Onus and the principle that was well settled before Onus did not contain the restriction my learned friend is urging upon the Court, and the submission, ultimately on Onus - and I will not take your Honours to the passage - is that their Honours do not apply a restriction, namely that you only get standing if you are within the zone or within the class or persons intended to be protected by the legislation in question.

All Onus does, in our respectful submission, is collect together the various threads that had gone on before and, in Justice Gibbs' case, make a clear statement of principle and that principle, your Honour, is the principle that was stated by the New South Wales Court of Appeal. I wanted to comment upon the decision of Justice Brennan as my learned friend had focused substantially his argument on Justice Brennan's decision, and may I do that briefly, your Honour.

KIRBY J: By the way, have you looked at the other State Courts of Appeal to see how they have been applying this area of the law?

MR WHEELHOUSE: Yes, your Honour, there is a more relaxed view of standing in South Australia to Queensland, otherwise, generally, the principle of standing as applied as is stated by Justice Gibbs in Onus.

KIRBY J: Have you references to those cases, I do not remember seeing those?

MR WHEELHOUSE: No, I have not put them all on my list, your Honour, but I can attend to that, your Honour. I thought there was a limit to the number of authorities I could bring to the Court because there are just so many of them.

KIRBY J: Yes, but you can still footnote them in your submissions.

MR WHEELHOUSE: Yes, I am content to do that, your Honour. There is so many authorities, there is a limit to that which I thought I was probably able to bring to the Court's attention.

As your Honour Justice Gummow pointed out, the fiat was declined in Onus and that is clear from page 65 of Justice Brennan's decision. Page 68 is the correct starting point, your Honour, about point eight. His Honour, clearly, in my respectful submission, adopts the statement of Justice Gibbs in ACF at the bottom of the page:

The plaintiffs are therefore constrained to establish standing by bringing themselves within the exception to the rule that a private citizen cannot bring proceedings to prevent public wrongs. The general rule was stated by Gibbs J. in the ACF Case.

Then he goes on to say, at page 69:

The exception to this rule formulated by Buckley J. in the second limb of Boyce was reformulated by Gibbs J., the better to express the principle which now governs the standing of a private plaintiff to sue to enforce performance of a public duty.

And then his Honour says, at page 69, quoting Justice Gibbs and Justice Mason what the principle is. He quotes at about point eight, Justice Mason:

"I also agree with Gibbs J. that, apart from cases of constitutional validity ... a person, whether a private citizen or a corporation, who has no special interest in the subject-matter of the action over and above that enjoyed by the public has no locus standi to seek a declaration of injunction to prevent the violation o a public right or to enforce the performance of a public duty."

He says - this is Justice Brennan:

The criterion of special interest better describes the approach to standing which has been taken in recent cases in Australia. A difference may be perceived between the strict view taken by the Court of Appeal in Boyce and more recent Australian cases relating to the standing of a plaintiff to sue his neighbour to enforce to the plaintiff's advantage the provisions of building or planning legislation.

Et cetera. In my respectful submission, his Honour clearly follows the statements of principle as set out in the earlier decisions by Justice Gibbs and Justice Mason. At the top of page 71 he refers to the Stroud Shire Council Case, that is the resumption case. He says:

But the criterion of special interest is expressed to be of general application, not limited to cases where breach of a public duty is productive of damage to the plaintiff's proprietary rights.

In my respectful submission, Justice Brennan at page 71 clearly indicates he regards the criterion of special interest to be one of general application and not curtailed by the statutory class. Page 73 his Honour says:

A special interest in the subject matter of an action being neither a legal nor equitable right, nor a proprietary or pecuniary interest, will ordinarily be found to arise from modern legislation enacted to protect or enhance non-material interests - interest in the environment -

So he says, "will ordinarily be found to arise". He is not expressing his tests in an exclusive way:

A plaintiff in such a case, though he may be able to show a special interest in what the statute seeks to protect or enhance, would be unable to show a private right or to prove that he has suffered proprietary or pecuniary damage. To deny standing would deny to an important category of modern public statutory duties an effective procedure for curial enforcement.

In my respectful submission, Justice Brennan is adhering to the fundamental tenement that standing is all about vindication of the rule of law. That would suggest that Justice Brennan's view is that there ought to be a wide view of standing, rather than a restricted view of standing. What he is saying is that one can look to the statute as one of the sources of material from which one can discern whether or not a party has a special interest. The fact that that exercise, your Honour, is not, as I have indicated several times now, is not an exercise engaged in to exclude, it is an exercise engaged in to include. At page 74 his Honour, down the bottom about point 8:

A plaintiff must show that he has been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. It is not necessary to show that the plaintiff is uniquely affected -

Again, an expansive view:

there may be some others whose interests may be affected in like manner. This will be the case where a statute protects the interests of a class, stopping short of conferring personal rights upon the members of the class.

So, his Honour, of course, goes on to look at the question of how standing arose in this particular case by using the legislation as the starting point, but, your Honour, in my respectful submission, it would be to read into Justice Brennan's decision a much more constricted approach than is necessary to suggest that he used that mechanism for excluding people from standing.

The Oatmont decision was put in merely to, in a sense, adopt a fall back position, if your Honours were going to come to the view that commercial interests should be seen in some way different from any other special interest - a submission that, I, of course, do not endorse. If your Honour was to come to that view, we say that cases such as Oatmont and Yates - I put in the Oatmont decision because it is the clearest example, and it quotes a lot of the dicta from Yates, shows that the courts, if they do draw a distinction in economic cases or commercial cases, they draw a distinction from those interests which are existing interests, and those which are losses of opportunity. In other words, a special interest will exist where there is an existing commercial enterprise to be damaged, but a special interest may not exist where the party is seeking to obtain a commercial opportunity. Both Oatmont and Yates were commercial opportunity cases. That was the submission that was made to the Court of Appeal and I think it figures in the last couple of paragraphs of Justice Handley's decision.

The Shop Distributive Case, your Honour - that was in to show the consistent trend of authority. Page 558 - your Honour has been taken to that. Our submission, your Honour, is, in response to our learned friend's submission, that the Court found that the members of the union had a special interest because the statute was enacted for their protection, or they were in a class of persons for whom it was enacted, does not flow from the decision. Your Honour, at page 558 the Court says:

The special interest which shop assistants employed in the Central Shopping District have in the trading hours of the shops in which they are employed is because any alteration in those hours necessarily affects the terms and conditions of their employment.

So, your Honour, their special interest was the hours that shops were allowed to remain open. Their special interest was not because they were in the class of persons for whom the statute was enacted to protect. It just so happened that the Minister, by the proclamation that he was employing, was making a proclamation under the Act which caused shops, or admitted shops to remain open longer - meant that that particular Act under that particular piece of legislation impinged upon them. But their real interest was in ensuring that any alteration to shopping hours was done through negotiation with the union. Thus, in our respectful submission, contrary to my learned friend's submission, the Shop Distributive & Allied Employees Association Case is not in support of the proposition that there is behind this decision a restrictive approach.

Indeed, at the top of 558, by the joint decision of Justices Brennan, Dawson, Toohey, Gaudron and McHugh, there is stated the passage from Chief Justice Gibbs in Onus and a fresh enunciation of the principle:

The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to the special interest.

So, what that would suggest, as Justice Gummow was saying, it is the outcome of a litigation which, perhaps, is determinative, not the legislative structure in which the litigation is conducted which is determinative of standing. In our respectful submission, the Court of Appeal's approach adopting this principle is the correct approach.

KIRBY J: The only weakness of the Court of Appeal's approach here is, it seems to me, that I think both Justice Sheller and Justice Handley say, well, it is just obvious. So, that is the sort of - what will I say - intuitive approach to standing. Maybe we cannot do any better, but that is the bottom line in both of their opinions. It has got to be a special interest, "High Court, look at this case, it is obvious." It is obvious, intuition. Is that the best that can be done?

MR WHEELHOUSE: No, in my respectful submission, that is not a fair analysis of the decision. The decision emphasises the fact that the respondents were not affected as members of the public generally. They were affected in an unique and special way. They were affected in a way which was catastrophic to them, namely, at risk of being annihilated. So their Honours carefully go through the factual basis to identify why it is that they come to the opinion that the respondents did have a special interest and that, in my respectful submission, gives great content to the words "special interest" and, contrary to Justice McLelland's description of it as being an amorphous concept, in my respectful submission, it is a concept that is quite easy of enunciation once the factual basis upon which the special interest is derived is set out.

It may well be that their Honours came to a view that it was a clear case because it was on the facts, in our respectful submission, an overwhelming case. It is difficult to imagine an example where a very long list of public wrongs would have a more Draconian effect on a particular individual, in this case a corporation, of course, but nevertheless. Your Honour, I put in the decision of Boots, Justice Lehane, because it is clearly one in favour of the respondents and his Honour says, again, that there is no rational reason why one should distinguish between commercial interests and other interests and for that reason it is in and it is also in because his Honour enunciates the basis upon which, in our respectful submission, it is reasonable to distinguish the ADJR Act-type cases and, your Honour, I will not read portions of that decision out.

Your Honour, I have put in the Big Country Developments Pty Limited Case, a decision of Justice Lindgren, and the Alphapharm Case so that I could make a submission that each of the cases were distinguishable for the reasons I have indicated, namely, that those decisions have to be looked at in the context of the legislative framework in which the right to judicial review of the administrative decision arose and we say that the Court here is not dealing with the general question of review of an administrative decision. The Court is here dealing with something discrete from that, namely, a right to obtain an injunction to prevent a public wrong, which particularly impacts upon the individuals in a way different from any other member of the public.

So, your Honours, they are the authorities that I draw to the Court's attention. Your Honours, the last little point I would seek to make is this - this is point eight. The trend is, in our respectful submission, towards a more relaxed rule of standing and that probably the trend is towards a more uniform approach and our submission is based on the Australian authorities that I have taken you to, especially the authorities of this Court. The other matter, your Honours, is that we would refer your Honours to the amendments to the United Kingdom Supreme Court Act of 1982, section 31, which deals with the general question of standing for judicial review of administrative decisions and that is - - -

KIRBY J: But is that not against you? That was one of Mr Hale's points, that we should leave this to the Parliament in the safe knowledge that (a) in specific legislation, Trade Practices Act and environmental legislation in New South Wales, it has been done; (b) it has been investigated by law reform bodies and there are proposals for a form which are before both Federal and State Parliaments; and (c) it is not really a matter for judges.

MR WHEELHOUSE: Your Honours, in my respectful submission, it is in my favour because it adopts the test of this Court. It is of a sufficient interest test.

KIRBY J: What is that to do with it, the fact that an isolated foreign Act of Parliament adopts - - -?

MR WHEELHOUSE: Perhaps they needed an Act of Parliament to catch up to where we are through the normal judicial process here, your Honour, but nevertheless we say that - - -

GUMMOW J: What is remitted to us clearly and unequivocally beyond the reach of Parliament is section 75(v) of the Constitution which is beyond the contemplation of legislatures of judges.... to expound section 75(v). No doubt there is a flow-on effect in that in the common law in the States. What you seem to be saying is that in 75(v) injunctions, prohibitions and mandamus can all be lumped together as to standing and it does not matter whether it is a constitutional case or another sort of federal case because a lot of the authorities you have taken us to are decisions in this Court in the original jurisdiction under section 75(v) of the Constitution. It is implicit in what you are saying that what is carried through from those decisions flows into the law administered in New South Wales in this - - -

MR WHEELHOUSE: Your Honour, I do not have to go that far for the purpose of my submissions. Your Honour, just looking at future trends, and we may not obtain much assistance from this but the Australian Law Reform Commission No 78 - - -

McHUGH J: Future trends. I am glad Justice Kitto is not here.

MR WHEELHOUSE: Your Honour, I had not put this on my list of authorities because I had difficulty. I should not make a remark about the learned author report No 27. I might be in trouble if I do that. May I just perhaps - and I am sorry I have not got this on my authorities, your Honour - page 23, it is the "beyond the doorkeeper". It is a quote from part of a passage from Franz Kafka. Standing to sue for public remedies. Paragraph 2.38. The Commission considers that the rules for standing intervention and friends of the Court - - -

GUMMOW J: Were they talking about section 75(v) of the Constitution?

MR WHEELHOUSE: No, your Honour.

GUMMOW J: Do they talk about that at any stage?

MR WHEELHOUSE: I think they do, your Honour.

GUMMOW J: That is where you start in Australia. You start with the Australian Constitution and expect the common law to conform to it.

GAUDRON J: And add to that the general principle that if jurisdiction is attracted, prima facie, the courts are obliged to exercise it, so the question really at bottom is what is sufficient to attract jurisdiction of a court?

MR WHEELHOUSE: Well I am happy to adopt that which Justice Gibbs said in Onus in that regard. If you have got a special interest beyond that, beyond any other member of the public - - -

GUMMOW J: We will get further with that than we will with felt needs and future feelings or whatever.

MR WHEELHOUSE: There it is. Report No 78 at 4.4, "single test enunciated". I refer to my written submissions to the article in 71 ALJ, that is a useful article, and Chapter 12 of Aronson for the same purpose to indicate that - - -

GUMMOW J: Well Professor Aronson's book does deal with these matters. It does deal with it on a principle basis, it seems to me.

MR WHEELHOUSE: Your Honour, it also deals with that question that Justice McHugh raised earlier.

GUMMOW J: Yes.

MR WHEELHOUSE: Page 702, your Honour, Chapter 12.

GUMMOW J: It also deals with the United States authorities.

MR WHEELHOUSE: Yes.

GUMMOW J: At page - - -?

MR WHEELHOUSE: It is the same section, Chapter 12, your Honour. I have referred to that in my written submissions.

GUMMOW J: Yes, very well. It deals with the United States authorities at page 667 to 669.

MR WHEELHOUSE: I have given your Honours a reference to Chapter 12 for that reason, because it collected together a large number of authorities beyond Australia and in a very learned fashion. Unless I can be of further assistance to the Court those are the submissions of the respondents.

GAUDRON J: Yes, thank you, Mr Wheelhouse. Anything in reply?

MR HALE: I do not wish to reply, your Honour.

GAUDRON J: Yes, thank you, Mr Hale. The Court will consider its decision in this matter.

AT 3.40 PM THE MATTER WAS ADJOURNED