9. At the time the application was made section 276(1) enabled such applications to be made only by a person who had objected under section 237 or was able to demonstrate reasonable grounds for the Administrative Appeals Tribunal to believe that he or she was unable to object within the prescribed period. In addition, the words of subsection 276(1), as enacted, provided that the person making the application must be a person whose "rights are substantially and adversely affected". During the proceedings before me, Mr Einfeld QC, who appeared for the appellants, argued that the legislature had intended to use the term "interests" rather than "rights" and that I should construe the section accordingly. He pointed out that the explanatory memorandum used the term "interests" and when the Act was consolidated as at 24 June 1997 the word "interests" was employed in place of "rights". However, the Tribunal dealt with the matter on the footing that the test for standing was dependent upon the terms of the section as enacted.

The Tribunal then proceeded to determine the issue of standing as a preliminary point, ultimately holding that neither appellant had been entitled to maintain an objection under section 237 and neither had standing to apply for a review of the decision under section 276. The requirement that the applicant be a person who objected under section 237 was held to mean that the applicant was a person who had made a valid objection under that section, that is, that he or she had not only objected but had been entitled to object. The Tribunal found that the appellants had not had such an entitlement because neither fell within the description of a "person who may be affected by the approval". The Tribunal also found that the amendment to section 276, by virtue of the Land (Planning and Environment (Amendment) Act (No 2) 1997 which had come into effect after the hearing had been concluded but prior to the Tribunal's decision, did not have retrospective effect and that the relevant test was whether the "rights" of the appellants had been substantially and adversely affected by the decision to approve the lease variation. The appellants again failed to satisfy the Tribunal that they met this requirement. Accordingly, the applications were dismissed.

"11." The appellants appealed from this decision pursuant to section 46 of the Administrative Appeals Tribunal Act 1989 . They also applied for prerogative relief in relation to the Commissioner's decision to approve the lease variation. In addition, they applied for an order under section 5 of the Administrative Decisions (Judicial Review) Act 1989 reviewing that decision.""

"The appeal from the Administrative Appeals Tribunal"

""12. The Tribunal's decision was attacked on a number of bases.

First, it was contended that the Tribunal had fallen into error in deciding the question of standing as a preliminary point rather than leaving it to be determined in the light of all of the evidence which the appellants thought to adduce in support of their application to the Tribunal under section 276 of the Land (Planning and Environment) Act .

Section 30 of the Administrative Appeals Tribunal Act provides that:

"Where it is necessary for the purposes of this Act to decide whether the interests of person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive."

This section seems to exclude any right of appeal in relation to standing if that decision is in favour of the objector or applicant as the case may be but to leave untouched any entitlement to appeal on the ground that standing has been wrongly denied. That construction is confirmed by the terms of section 46. However the section is silent as to whether the issue of standing should be determined as a preliminary point.

The Tribunal took the view that whether it was appropriate to determine standing prior to any hearing of the substantive application depended upon the facts of the particular case. If the standing of an applicant could only be determined after hearing much of the evidence that would be relevant to the hearing of the substantive application, it would usually be convenient to defer a decision on the question of standing until after all of the evidence had been heard. On the other hand, if the material relevant to the question of standing could be conveniently isolated from that relevant to the substantive application, then the issue might be determined as a preliminary point in order to avoid the costs of a full hearing. In the present case the Tribunal found that it was convenient to determine the issues relating to standing without proceeding to a full hearing of the substantive application. Whilst the decision to proceed in this manner was challenged in the Notice of Appeal Mr Einfeld did not seek to demonstrate that it was not open to the Tribunal or that in adopting it the Tribunal fell into some demonstrable error. Nor was there any attempt to demonstrate that the appellant suffered some potential prejudice as a result of this approach.

Mr Einfeld did, however, contend that each of the appellants was a "person who may be affected" by the decision to approve the lease variation. As Higgins J pointed out in Jewel Food Stores v Minister (1994) 122 FLR 269 at 279, the section does not contain any other words of limitation on the class of people who may be affected by the approval and does not contain any express limitation on the manner in which such people must be affected. His Honour thought it unlikely that the legislature had intended to narrowly confine the class of objectors to those whose enjoyment of property rights may be affected by the relevant "controlled activity" or that the class would be narrower than that referred to in section 12 of the Administrative Decisions (Judicial Review) Act . In US Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79 at 86 a Full Court of the Federal Court made the following observations:

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

The concept of being "aggrieved" has also been construed broadly. In particular, it is being held that it should not be confined to persons who can establish that they have a legal interest at stake in the making of the decision. In Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64 Ellicott J said, at 79, that the test at least covers a person who can show "a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public". His Honour cited as an example a decision which might affect the person in the conduct of a business. See also Ricegrowers Co-operative Mills Ltd v Bannerman [1981] FCA 211; (1981) 38 ALR 535 at 540; Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 ; Ogle v Strickland (1987) 71 ALR 41 and Broadbridge v Stanners (1987) 76 ALR 339. In Jewels Food Stores Pty Ltd v Minister, Higgins J drew upon these statements of principle in seeking to interpret the requirements of section 237(1). His Honour noted that despite such liberal construction it remained necessary for a prospective objector to show that if the objection were to be upheld it would confer on the objector a benefit or advantage of discernable consequence or significance and cited as an example the decision in Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377. In that case Pincus J at 379 had conceded that "a sufficient economic effect, caused by the decision attacked, is a satisfactory basis for an application under the Administrative Decisions (Judicial Review) Act ". Nonetheless, Higgins J took the view that neither the applicants before him nor any of their customers had any legitimate expectation that competition would be restricted so as to protect their economic interests. His Honour held that it was not sufficient for applicants to demonstrate that their economic prospects have become less favourable.

The Tribunal also observed that in determining the range of interests that might qualify a person to be an objector it is relevant to observe that the Land (Planning and Environment) Act manifests a legislative intention to facilitate community participation in decisions concerning development applications. Accordingly, the Tribunal ventured the opinion that a person who had demonstrated a "disinterested involvement in planning issues in his or her neighbourhood" may well qualify as an objector since that person had a special interest over and above the general members of the public. In support of the latter proposition the Tribunal referred to cases such as Australian Conservation Foundation v Environment Protection Board [1983] VicRp 34; (1983) 1 VR 385 which emphasised the wide view taken by the courts in relation to planning issues. Whilst the Tribunal relied upon this decision only as an example, it should be noted that the statutory provision at issue in that case authorised objection by "any person who feels aggrieved thereby". These words may well justify a more expansive approach than those contained in section 237(1) of the Land (Planning and Environment) Act 1991 .

Nonetheless, the Tribunal held that the effect of mere economic competition is not enough to entitle a person to be an objector. In my view there is ample authority to support this proposition. See, for example , Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675; Jewel Food Stores v Minister ; Re Calardu Pty Ltd (No 1) (1990) 109 FLR 343 and Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd [1994] FCA 996; (1994) 49 FCR 250. On the other hand, as the Tribunal also observed, economic considerations going beyond mere competition may provide a sufficient basis for standing : Kentucky Fried Chicken Pty Ltd v Gantidis per Stephen J at 687. See also Murragong Nominees v Melbourne and Metropolitan Board of Works (1985) 60 LGRA 210.

Mr Einfeld did not challenge these principles but rather contended that the appellant had not been reliant upon the mere threat of further competition. He submitted that there were two important distinguishing factors.

First, licensed clubs donate monies to community and charitable purposes and their interests are therefore co-incident with the public interest. The capacity of existing clubs to continue to make donations of that kind would, he contended, be impaired if the profits which they derived from poker machines were reduced as a result of increased competition.

The evidence before the Tribunal on this issue was somewhat sparse. However, there was evidence of actual donations which had been made by the first appellant and Mr Einfeld submitted that this reflected a general practice of clubs within the Territory. The latter assertion was not accepted by the Tribunal which commented that it was well known that a number of clubs do little more than break even on their own trading activities and have little or no funds available to disperse for the benefit of the community. For my part, I can only say that I have no knowledge of the relative generosity of clubs within this Territory and am unable to accept either proposition on the basis of judicial notice or as "common knowledge", to use the term employed in section 144(1) of the Evidence Act 1995 (Cth ). The rules of the first appellant were in evidence before the Tribunal. Rule 5 provides that the income and property of the club shall be applied solely with the promotions of its objects. The objects as stated in the rules do not include the making of donations to charitable or community purposes. The rules do permit the provision of benefits to the club or to specified trade unions but the Tribunal took the view that any threat to the provision of these benefits could arise only as a result of increased competition. The Tribunal also pointed out that there is no legal requirement for clubs to make donations of that kind.

In all the circumstances, the Tribunal concluded that any adverse effect on a club's takings from poker machines which might be experienced as a result of the establishment of a club on the relevant premises did not have any public policy implications and the appellant's contentions raised "a matter of mere competition and nothing more".

The Tribunal also made the observation that the desire by some person or body to donate some portion of business profits to good causes does not of itself raise planning issues though it acknowledged that there may be circumstances in which a contribution to the public interest would involve such issues and cited as an example a proposed development that would hinder access to premises used for fund raising.

The Tribunal concluded that the mere fact that the establishment of a club on the land in question might have adverse financial consequences for an existing club was not sufficient to give that club standing for the purposes of section 237 of the Act.

It is clear, in my view, that the mere risk of an adverse impact upon commercial interests is not, of itself, to found standing. As Lindgren J pointed out in Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85 at 92, the "ripples of affection" in financial or commercial terms arising from administrative decisions extend far and wide. It is unthinkable that the legislature intended to accord standing to every person who has a financial or commercial interest which may be adversely affected by a decision, no matter how remote that interest may be from the subject of the relevant application and no matter how minor the affection. In my view the Tribunal was correct in concluding that it was not sufficient for the appellants to merely advert to the risk that the lease variation might ultimately lead to the operation of poker machines on the site by a club and that might in due course have some adverse impact on the profits derived from poker machines by existing clubs.

There is nothing in the Land (Planning and Environment) Act to suggest that a practice of making charitable donations may entitle a person to standing as an objector. It is no doubt in the public interest that individuals and organisations make charitable donations and, as a matter of public policy, it may be desirable to encourage such philanthropic behaviour. However, there is no indication that the legislature has chosen to provide such encouragement by giving those people or organisations standing to object to planning decisions. I do not accept that a wealthy corporation which makes charitable contributions, whether motivated by the desire to improve its corporate image or purely altruistic considerations, thereby acquires standing which would be denied a member of the community unable to afford similar generosity.

Nor do I accept Mr Einfeld's contention that standing was afforded by the fact that clubs "meet a community purpose in everything they do". The test imposed by section 237(1) is whether the potential objector may be affected by the approval of an application; not whether the public interest may be so affected. Of course, the two issues may be related. For example, it may be open to a planning authority to take the view that the public interest in maintaining restrictions on the size and shape of buildings in a particular neighbourhood would be outweighed by the public interest in having a neighbourhood support facility conducted by the Salvation Army or the St Vincent de Paul Society which required more space than would be permitted if those requirements were not waived. Conversely, it may be open to such an authority to take into account the likelihood that approval of a planning application would pose a potential threat to a charitable institution's ability to carry on such activities as caring for homeless children or destitute people, by, for example facilitating noisy activities next to a dormitory. In that event the institution could no doubt maintain that it had been "affected" for the purposes of section 237. Furthermore, once standing had been established an objector would presumably be entitled to raise relevant public interest issues in support of his objection, even if they did not involve any impact on his or her interests. However, that does not mean that a person whose real complaint is the threat of increased competition may bring himself or herself within section 237(1) by purporting to take up the cause of public interest. A potential objector must demonstrate that his or her interests are "affected" in the manner previously discussed. If they have not been so affected, the mere fact that his or her interests may co-incident to the public interest will not be sufficient to found standing.

Accordingly, I am unable to accept Mr Einfeld's submission that the Tribunal fell into error by failing to find that the evidence of charitable donations coupled with the potential for increased competition meant that the first appellant was a person who may be affected by the approval of the lease variation and hence had standing to maintain an objection under section 237(1).

The second appellant is a body incorporated under the Associations Incorporation Act 1991 . Its membership is confined to licensed clubs, clubs having approval to erect club premises and awaiting liquor licensing approval and "other organisations as may from time to time be approved by the Executive Committee". Even then, there is no entitlement to membership. The Association's constitution appears to contemplate that membership may be offered to bodies falling within this description at the Association's discretion. The objects of the Association make it clear that its primary function is to promote, protect and further the development and interests of member clubs and to represent and communicate their views. The Tribunal took the view that although the Association is a legal person separate from its members and its interests are not necessarily identical with its members "the interests of its members would seem to define the high water mark of the Association's interests". Accordingly, the Tribunal distinguished the present case from cases such as Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70 and North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; (1994) 127 ALR 617 in which the objects and activities of the organisation were held to give them a special interest in maintaining the public interest in the proper administration of laws relating to their special interests.

It seems to me that there may be many circumstances in which the interests of an association may rise above or otherwise differ from the interests of the individual members. For example professional associations may have objects which may extend to fostering high ethical ideals, maintaining programs of continuing education, creating public awareness of important issues and otherwise serving the public interest. However, as the Tribunal pointed out, the second appellant's objectives do not appear to rise above the promotion of the interests of its members. In any event, I am unable to discern any separate economic interest of the Association which might lead to the conclusion that it was "affected" by the variation of the lease purpose clause in a manner sufficient to found standing. It was not contended that the second appellant had itself made charitable donations but rather that it represented the interests of clubs which as a matter of practice made such donations and served the public interest by the provision of services to their members. As previously mentioned, the evidence concerning these matters was somewhat limited. Furthermore, it seems to me that if the member clubs are affected only by the threat of increased competition the second appellant can have no greater claim for standing under section 237. Indeed, if it were to be viewed as a discrete entity rather than representative of those members, it might be unable to demonstrate any potential effect on its interests.

Secondly, Mr Einfeld submitted that the second appellant had a special interest in maintaining the present public policy of authorising licensed clubs to operate poker machines but prohibiting the use of such machines in the Casino.

As the Tribunal observed, the lease variation involves no infringement of any such public policy. The terms approved merely enable the operation of a club in part of the premises presently occupied by the Casino. The Casino itself could not lawfully operate poker machines without amendments to both the Casino Control Act and the Gaming Machine Act . Furthermore, if those Acts were to be amended in order to permit the Casino to operate poker machines the lease variation permitting the land to be used for the purposes of a club would be irrelevant to that issue. If any part of the premises on the land in question are to be used for the purposes of a club, it will obviously be necessary for the relevant area to be subleased to a new or existing organisation which matches that description. The possibility that such a club might establish the right to operate poker machines in that portion of the premises would at the most support an argument based upon the potential impact of increased competition.

Mr Einfield nonetheless maintained that the lease variation would facilitate an illegal purpose since poker machines could not lawfully be operated within the area designated for the Casino. In answer to this contention, Mr Rayment QC, who appeared for the second respondent, made it clear that his clients anticipated that an application would be made to change the area designated for the Casino so that a club might lawfully operate poker machines in some area of the building not so designated. In any event, the lease variation does not purport to authorise the use of poker machines on the premises in question. It does nothing more than remove any impediment that might otherwise have arisen from the terms of the lease to the operation of a "club". There is no principle of law which requires a club to operate poker machines and unless the designation is changed and the necessary licences are obtained no club would become entitled to do so.

Whilst it is no doubt relevant for a planning body to consider whether a lease variation has been sought in order to facilitate an illegal activity that does not mean that an application for such a variation cannot be approved if it is within the contemplation of the applicant that an activity might ultimately be conducted on the relevant property and that course is not presently permissible. Where the contemplated activity is illegal only because of statutory restrictions on its conduct in particular places or other provisions of a planning nature, it is open to the Commissioner to take into account the possibility that the government might accede to representations that those restrictions be removed. In the present case, the lease variation effectively removed one such impediment and there is no reason to suppose that any applications or representations which the applicant might make in relation to other legal impediments would be doomed to failure. As Mr Rayment submitted, a person facing a number of legal impediments to a proposed course of action must start somewhere.

There is no reason to suppose that poker machines will be used illegally on the demised land. If the Minister is not willing to change the designation under the Casino Control Act or if the relevant licences are refused then no club will be able to operate poker machines in any part of the existing building. On the other hand, there is no reason to suppose that the Minister may not be amenable to some proposal to change the designation. Nor is there any reason to suppose that any club which seeks to utilise the premises would not be a reputable body able to demonstrate adequate grounds for the issue of the relevant licences. Indeed, it is conceivable that the relevant portion of the premises might be leased to one of the clubs which are members of the second appellant. If those impediments were overcome then poker machines might lawfully be used upon the premises.

In any event, the second appellant cannot qualify as an objector under section 237 merely by averting to the possibility that the approval might enable some future tenant, who leases part of the premises on the relevant land for a purpose permitted by the lease, to breach various statutory restrictions or otherwise behave illegally. The section requires a potential objector to show that it may be affected by the approval of the application. An organisation which has no special interest in maintaining due observance of the relevant laws cannot fulfil this requirement by donning the mantle of legal crusader and embarking upon its own campaign to have existing restrictions retained. I do not accept that the legislature intended to confer any special rights on members of the second respondent let alone create a "monopoly" which it might be said to have a special interest in maintaining. Nor do I accept that the second appellant has any special interest in the maintenance of existing laws relating to the operation of poker machines. If, contrary to this view, it does have such an interest, then it remains unaffected in any relevant sense by the approval of the lease variation.

Furthermore, even if the appellants could show that they were persons who had been entitled to object under section 237 it would still be necessary for them to demonstrate that they fulfilled the other requirements of subsection 276(1). At the time of the application paragraph (b) of that subsection added a requirement which had been expressed in the words "the rights of the person are substantially and adversely affected by the decision". Mr Einfeld submitted that the legislature had intended to enact the word "interests" rather than "rights". He did not suggest that the section as in fact enacted did not contain the word "rights" but contended that the legislature had, in effect, enacted a provision containing a typographical error. This error is clear, he maintained, from the terms of the explanatory memorandum that accompanied the Bill and is confirmed by the fact that when the consolidated Act was reprinted as at 24 June 1997 the word "interests" was used in lieu of the word "rights". The Tribunal erred, he submitted, by failing to approach the matter on the basis that the appellants were only required to demonstrate that their "interests" were substantially and adversely affected.

This submission is obviously dependent upon a very expansive view of the use which may be made of extrinsic material in the interpretation of statutory provisions. Section 11B of the Interpretation Act 1967 provides that extrinsic material may be considered if "capable of assisting in the ascertainment of the meaning of the provision . . ." However, consideration may only be given to that material for the purposes referred to in subsection (1); namely, to confirm that the meaning of the provision is the ordinary meaning conveyed by the text or to determine the meaning if the provision is ambiguous or obscure or the ordinary meaning would lead to a manifestly absurd or unreasonable result. In my view, paragraph (b) of subsection 276(1) of the Land (Planning and Environment) Act is neither ambiguous nor obscure and the ordinary meaning conveyed by its terms does not lead to an absurd or unreasonable result.

I do not accept that section 11B authorises a court to scrutinise extrinsic material in order to determine whether in enacting provisions, which on their face are unexceptionable, the legislature acted in error. Nor do I accept that it would be appropriate for a court to purport to rectify that perceived error by reading the statute as if it contained a different term or terms. The fact that a consolidated reprint of the statute incorporates the word "interests" rather than "rights" does not in my view enlarge the operation of section 11B of the Interpretation Act or otherwise authorise the court to embark upon such an exercise. Even if recourse to extrinsic material were not constrained by the terms of section 11B I would be reluctant to assume that any perceived disparity between the terms used in the Bill and that used in the explanatory memorandum necessarily means that the former was in error and did not reflect the will of the legislature. It is the Bill which is enacted by the legislature and becomes law.

An explanatory memorandum or some other document of the kind referred to in section 11B may assist in the interpretation of a provision so enacted if there is some doubt about its meaning. However, such extrinsic material cannot assume primacy over the terms of the legislation itself. If there is some disparity between the Bill and the explanatory memorandum that may reflect an error in that latter. Furthermore, even if the Bill contained some error of drafting, it has nonetheless been enacted in the form in which it was submitted. Subject to any issues of construction, it must be applied according to its terms. As Mason CJ, Wilson and Dawson JJ said in Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 517-518:

". . . given that s19 is ambiguous, consideration may be given in ascertaining the meaning of the provision to the second reading speech of the Minister when introducing the Bill for the Act into the House of Representatives in 1963: Acts Interpretation Act 1901 (Cth), as amended, s 15AB. That speech quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law."

See also Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112 at 118-120.

Accordingly, I reject the submission that the Tribunal erred in applying the test of rights rather than interests.

Mr Einfeld conceded that words in a statute should prima facie, be construed in accordance with their ordinary meaning : Broken Hill South Limited (Public officer) v Commissioner of Taxation (N.S.W.) [1937] HCA 4; (1937) 56 CLR 337 at 371. He submitted, however, that there was an anomaly in the use of the word "rights" in subsection (1) of section 276 but the word "interests" in sub-paragraph (4). Hence, even if the word "rights" could not be read as if it were "interests", it should nonetheless be construed as having substantially the same meaning. In any event, he submitted, the word "rights" should be read as extending beyond legal rights.

In my view, the terms of subsection (4) tend to confirm that the word "interests" was used in contradistinction to the word "rights" in subsection (1). As a matter of normal statutory construction the fact that the legislature has chosen to use different words tends to suggest that some difference in meaning was intended. Prima facie, the word "rights" should be taken to mean legal rights. However, the word must be construed according to its context and in some statutes it may have a wider meaning. In the present case there is an obvious difficulty in finding any alternative formulation that would maintain a sensible distinction between "rights" and "interests" and I think that the word should be construed in the ordinary sense of legally recognised rights.

The rights which Mr Einfeld contended were asserted by the appellants were rights to maintain statutory entitlements to use poker machines to the exclusion of the second respondent and any others who might ultimately benefit from the decision. However, as previously mentioned, I do not accept that the statutory restrictions on the operation of poker machines give rise to any monopoly or entitlement on the part of either appellant. Accordingly, I do not accept that either has a "right", whether in the sense of a legal right or otherwise, to maintain such exclusive usage. Furthermore, even if such a right did exist it was not challenged by the approval of the lease variation.

Indeed, even if I had come to the view that the relevant test under section 276 had been whether the interests of the appellants had been affected I would not have been satisfied that either had established standing. For the reasons previously given I am not satisfied that their interests were affected in any relevant sense.

Mr Einfeld also submitted that the Tribunal had fallen into error by failing to recognise that the amendment to section 276 effected by the Land (Planning and Environment) (Amendment) Act (No 2) 1997 applied to the issue of the standing of the appellants. Section 6 of the amending Act was in the following terms:

Section 276 of the Principal Act is amended - (a) by omitting from paragraph (1)(b) "rights" and substituting "interests"; and (b) by adding at the end the following subsections: "(8) In this section - 'person' includes an unincorporated association. (9) For the purposes of this section, an organisation or association of persons, whether incorporated or not, shall be taken to have interests that are substantially and adversely affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association."

I accept Mr Einfeld's submission that subsection (9) is in very broad terms. Indeed, at face value it would appear to permit people to apply to the Tribunal for the review of planning decisions which did not affect them in any way at all, provided they had formed an association with such an object or purpose and that association had been the objector. However, as previously mentioned, the amendment did not come into effect until the hearing before the Tribunal had been completed and judgment had been reserved. In these circumstances there was a real issue as to whether it had any application to the proceedings.

Mr Einfeld maintained that the Tribunal had erred in considering that the amendment lacked retrospective effect. The true position was that where on a hearing de novo the question for determination is whether an applicant should be granted a right it is appropriate to apply the law as it then exists. Hence, it was the law at the time of the decision that was relevant. In support of this contention he relied upon the judgment of Brennan J in Esber v The Commonwealth of Australia [1992] HCA 20; (1992) 174 CLR 430 at 448. The passage was part of a dissenting judgment by His Honour but Mr Einfeld maintained that the majority had not taken any different view on this issue.

On the other hand, Mr Rayment submitted that the majority had taken a significantly different approach. He pointed out that Mason CJ, Deane, Toohey and Gaudron JJ had held, at 440-441, that the applicant had a right to have the decision of the delegate, who had refused his claim for redemption of his compensation rights, reconsidered and determined by the Tribunal notwithstanding the repeal of the statute under which the entitlement to the redemption had arisen. Their Honours had concluded that once the appellant had lodged an application to the Tribunal to review the delegate's decision he had a right to have the decision reconsidered and determined by the Tribunal. That right was a substantive right which was protected by section 8 of the Acts Interpretation Act 1901 (Cth) . Hence, he was entitled to have the Tribunal review the earlier decision on the basis of the law as it stood prior to the repeal of the relevant statute.

Mr Rayment submitted that the same principle applied to the present situation and that the relevant law was that which existed at the time the appellants sought to invoke any right to apply to the Tribunal under section 276. It was true that the position of the second respondent was the converse of that enjoyed by the applicant in Esber v The Commonwealth of Australia in that it was seeking to maintain the initial approval rather than attempting to have it reviewed. However, the second respondent was in essence asserting an accrued right. It had obtained approval for the lease variation and had a right to maintain that approval subject only to any existing rights of objection. The first respondent's rights could no more be cut down by a statutory amendment expanding the scope for objections than Mr Esber's rights could be obliterated by the repeal of a statute.

Mr Einfeld argued that the second respondent acquired no accrued or vested right because the proceedings before the Tribunal were de novo. A valid and subsisting approval would normally give rise to a vested right notwithstanding the existence of a statutory provision for an appeal or review de novo. However an approval under section 230 does not become effective until any application under s276 has been resolved. The real difficulty with Mr Einfeld's submission is that it ignores the fact that, as I have found, neither appellant had any right to apply to the Tribunal prior to the amendment. Even if a right could be regarded as having not vested because some other person had an entitlement to apply to have the relevant decision reviewed de novo, no person had such an entitlement.

On the other hand, whilst I am inclined to agree with Mr Rayment's submissions on this issue it does not seem to me that it really arises for determination. In the present case, the issue is not what law the Tribunal was obliged to apply upon the hearing of the application but whether the appellants had standing to make that application. The issue of standing is, of course, governed by the terms of 276 which provided at the relevant time that a person might apply to the Tribunal if that person met the requirements then stipulated. At the time the appellants made their application to the Tribunal in purported reliance upon this section the amendment had no operation. Accordingly, their entitlement to apply was dependent upon the law as it then stood. In my view, that law did not give them standing to make the applications. Accordingly, the jurisdiction of the Tribunal was not properly invoked by the applications which they purported to make. There is nothing in the amending Act to suggest that it was intended to ratify applications which had previously been made without statutory authority or any other basis in law. I agree with the Tribunal's conclusion that the statute had no retrospective effect. Consequently, it could not be treated as having had any operation in relation to the time at which the applications were made and could not be regarded as, in effect, validating those applications ab initio. For these reasons I am unable to accept that the amendment had any effect upon the standing of the appellants.

Mr Walker also submitted that the applications purportedly made under section 276 of the Land (Planning and Environment) Act 1991 , were not authorised by the section because the right that would otherwise have arisen had been removed by regulation.

Section 282 permits regulations to be made exempting the "conduct of a specified controlled activity" from the operation from the provisions of Part VI of the Act. The Land (Planning and Environment) (Casino) Regulations of 1992 came into effect at the same time as section 282 and exempted controlled activities "of the kind referred to in item 2 or 3 of Schedule 4 of the Act" from the operation of section 276 if the controlled activity was carried out "only in relation to land in respect of which a designation is in effect under paragraph 4(1)(a) or (b) of the Casino Control Act 1988 ". Item 2 in Schedule 4 referred to "the execution of a variation of a lease of Territory Land". It is common ground that there has been a designation under paragraphs 4(1)(a) of the Casino Control Act 1988 in relation to the lease at all relevant times. Consequently, Mr Walker maintained, the lease variation was exempt from any application to the Tribunal under section 276.

Mr Einfeld submitted that these regulations simply have no continuing operation in the new legislative scheme introduced by the Land (Planning and Environment) Amendment Act, 1996 which regulates "developments" rather than "controlled activities". Mr Walker conceded that the Act had been amended in 1996 by the Land (Planning & Environment) (Amendment) Act (No 3) 1996 to remove Schedule 4 and narrow the definition of "controlled activity" in section 4 but pointed out that the applications had been lodged before the commencement of the relevant provisions and submitted that the transitional provisions preserved the operation of the regulations in relation to them.

For present purposes I am prepared to assume that the regulations applied to the development application in April 1997. However, I am not persuaded that the relevant controlled activity is one that is to be carried out "only in relation to land in respect of which a designation is in effect". It is conceivable that this description was intended to encompass all of the land covered by the lease even though only part of that land was so designated. However, in my view it should be construed as relating only to the designated area. The variation of the purpose clause applies to the whole of the land covered by the lease whilst the designation relates only to that area on which the present building is constructed. Whilst it is intended to house any club in that building, that cannot be done lawfully unless the designation is changed to confine the Casino to one portion of the building so that the club may occupy the remainder. In short, it is clear that the activity is not to be carried on within the designated area.

Mr Walker also submitted that the lease variation was exempt from review under section 276 by virtue of regulation 24 of the Land (Planning and Environment) Regulations . That regulation applies to developments listed in Schedule 7. Item 8 of that schedule refers to developments on "land within an Entertainment, Accommodation and Leisure Area". The land in question is within such an area and Mr Walker maintained that it otherwise meets the criteria stipulated in the schedule.

Regulation 24 came into operation on 24 June 1997 and the decision to approve the lease variation was made on 21 July 1997.

Mr Einfeld argued that the first respondent should not be permitted to raise this contention. He pointed out that neither respondent sought to rely upon regulation 24 in the proceedings before the Tribunal and that it was raised in the proceedings before me only after the evidence had closed. Any relevant facts were, he maintained, exclusively within the knowledge of the second respondent. Hence the respondents must be taken to have knowingly abstained from exercising the right to rely upon regulation 24 and thus have waived that right, vide The Commonwealth v Verwayen (1990) 170 CLR 394 at 427 and 451.

However, the only factual finding necessary to support Mr Walker's submission is that the land in question is less than 50 metres from any residential area at its nearest point. A minute from the Area Manager, Civic dated 29 April 1997 indicates that "the subject land is marginally within 150 metres" of residential land. In any event I would have been prepared to regard the location of the Casino and its relative remoteness from residential areas as being within common knowledge.

Furthermore, regulation 24 did not confer any rights upon the respondents. It merely provided that section 276 of the Act would not apply to decisions of a class which in my view included the decision to approve the lease variation in question. Consequently, the appellants never had any lawful right to apply to the Tribunal. In these circumstances the mere fact that the regulation was not raised during argument before the Tribunal should not be regarded as requiring the Court to now ignore its effect. In any event, if I were to accede to Mr Einfeld's submissions and remit the question of standing to the Tribunal for re-hearing, the effect of the regulation would inevitably be raised in those proceedings.

Accordingly, I conclude that it is appropriate for me to have regard to regulation 24 and I find that this regulation did effectively exempt the Commissioner's decision to approve the lease variation from review by the Tribunal pursuant to section 276.

For these reasons I am not satisfied that the Tribunal fell into error in deciding the issue of standing as a preliminary issue or in the finding which it made on that issue.

If the appellants lacked standing to make the applications to the Tribunal then they similarly lack standing to prosecute the appeals and it is unnecessary to embark upon any consideration of the merits of the arguments advanced in relation to the substantive issues raised.

Whether a plaintiff has standing to seek prerogative relief may be dependent upon the ground relied on. It has been said that "a stranger" may seek prerogative relief to prevent an inferior court or tribunal from exceeding its jurisdiction. See, for example, Master Retailers' Association of New South Wales v Shop Assistants Union of New South Wales [1904] HCA 39; (1904) 2 CLR 94 at 98 ; Re Ludeke; ex parte Customs Officers Association of Australia, (1985) 59 ALR 417 at 421 and 424; and John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 468-469 and John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales & Anor (1991) 26 NSWLR 131 at 167-168. In other circumstances a plaintiff must bring himself or herself within the rule established in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493. That rule was stated by Gibbs CJ in Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 35-36 in the following terms:

"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."

This rule was affirmed by Brennan, Dawson, Toohey, Gaudron and McHugh JJ in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia (1995) 183 CLR 552 at 558. Their Honours observed that the rule is flexible and that the nature and subject matter of the litigation will dictate what amounts to a special interest.

In the present case, I am not satisfied that the present appellants have demonstrated any "special interest" of the kind that would entitle them to standing to seek prerogative relief other than on the ground of excess of jurisdiction. The interests of the appellants are not directly affected in any way by the decision in question. Nor, in my view, to they fall within the class of people upon whom the legislature has chosen to confer rights of objection in relation to decisions of this kind. It is possible that the change in purpose clause may ultimately facilitate the conduct of a business on the land in question which might give rise to competition with the first appellant or members of the second appellant. However I do not accept that a mere desire for protection against potential competition is sufficient to give rise to a "special interest".

The circumstances in which a Writ of Mandamus will be justified were considered by the High Court of Australia in The King v The War Pensions Entitlement Appeals Tribunal & Anor; Ex Parte Bott [1933] HCA 30; (1933) 50 CLR 228 at where Rich, Dixon and McTiernan JJ said:

"A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him. In the case of a tribunal, whether of a judicial or of an administrative nature charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the enquiry and announced a conclusion, the prosecutor who seeks the writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the Tribunal. It may be shown that the members of the Tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies."

This formulation was adopted by Lathan CJ in The King v Blakeley ex Parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54.

The grounds upon which certiorari may properly issue were summarised by the High Court of Australia in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 per Brennan, Deane, Toohey, Gaudron and McHugh JJ at 175-176:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'. Where the writ is sought on the grounds of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to any applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."

Their Honours qualified their summary with the observation that it glossed over a number of difficulties about the content of the grounds and identified two such difficulties, one relating to the nature of "jurisdictional error" and the other relating to the issue of what constitutes "the record" for the purpose of determining whether there is "error on the face of the record".

The former is of some significance in the present case. Their Honours observed that it is necessary to distinguish between inferior courts which are amenable to certiorari and other tribunals exercising governmental powers which are also amenable to the writ. An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or misapprehends or disregards the nature or limits of its functions or powers. A decision based upon such errors may be quashed by certiorari. However since a court of law has authority to decide questions of law as well as fact, any failure to identify the relative issues and determine the relevance of evidence may be challenged on appeal but will not normally constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some essential matter will not normally involve jurisdictional error. In contrast, unless there is some clear expression of legislative intention to contrary, administrative tribunals are presumed not to have the power to decide questions of law. Hence, the principles expressed in the following passage from Lord Reid's speech in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, at 171, will normally apply to such tribunals:

"there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that it's decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some other matter which, under the provision setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly."

Mr Einfeld submitted that the Commissioner fell into jurisdictional error in a number of respects.

First, he contended that the Commissioner had no power to approve the application in the absence of a preliminary assessment. That was said to follow from the terms of section 231 of the Land (Planning and Environment) Act 1991 which provides that before approving or refusing to approve an application the relevant authority shall consider various matters including "a preliminary assessment under Division 2 of Part IV, or a report under section 128". Mr Einfeld argued that since no assessment or report answering this description existed at the time of the relevant decision to approve the application, the Commissioner had been unable to comply with the requirements of section 231. Those requirements were mandatory and compliance with them was essential to the valid exercise of power under section 230.

I am unable to accept this contention. It is true that the terms of section 114 make it mandatory for the minister to require a preliminary assessment of the environmental impact of a proposal where the defined decision is of a class prescribed by the Plan, but the power provided by section 113 to require assessments of that nature is otherwise discretionary. Accordingly, the legislation contemplates that decisions will be made under section 230 in circumstances where no preliminary assessment exists. Consequently, it seems to me that the terms of paragraph (a)(iii) of subsection 231(1) must be read as requiring the relevant authority to consider any assessment or report of the relevant kind that might be available. The construction for which Mr Einfeld contends would involve the somewhat bizarre consequence that if the minister declined to exercise his power under section 113, even in circumstances where he was plainly entitled to so decline, that decision would inevitably condemn the application to forever remain unresolved since it could be neither approved nor refused. I do not accept that section 231 should be so construed.

In any event, as Mr Walker pointed out, subsection 229A (5) requires the Commissioner to determine all applications referred to him or her under subsection (3) or (4) and the present application fell into that category. There is nothing in the statute to indicate that that obligation should be regarded as having been suspended in the event that the relevant minister decides, whether rightly or wrongly, that he is not bound to require the preparation of a preliminary assessment.

Secondly, Mr Einfeld argued that since the application was of the class described in section 114 it had been mandatory for the relevant minister to issue a notice requiring the provision of such a preliminary assessment and his failure to do so had inevitably tainted any decision under section 230.

Section 114 applies only where a defined decision is of a class prescribed by the Plan. It was common ground that the decision fell within the class prescribed by Schedule II.1 of the Plan unless it could be said to fall within one of the following exceptions:

"(a) the proposal is an alteration or addition to an existing situation which does not cause significant change in the scale, size or purpose of the existing situation; (b) the proposal represents part or a whole of a proposal which has previously been the subject, directly or indirectly, of a previous assessment or has been the subject of another form of investigation which would satisfy the requirements of a preliminary assessment under the Land Act; or (c) it is intended, by agreement with the Commonwealth, a State or other Territory, that the proposal will be assessed by such an authority."

The Minister's delegate determined that a preliminary assessment was not required because "the proposal does not constitute significant change in scale, size or purpose of the existing situation, and as social impacts of the existing situation have already been addressed at length . . ."

Neither this determination nor any perceived failure to comply with the requirements of section 114 can be challenged in the present proceedings for prerogative relief. The power created by section 113 vests in the "relevant minister" and any obligation under section 114 is imposed upon that minister. Yet the minister has not been joined as a party and the relevant decision or failure of compliance is not directly challenged in the pleadings.

However, if the issue had fallen for determination in these proceedings I would not have been satisfied that the first respondent had erred in concluding that the proposal was not one to which section 114 applied, at least insofar as he concluded that the proposal involved an alteration which did not cause "significant change in the scale, size or purpose of the existing situation". The proposal involved, in substance, some division of the existing premises so that the Casino would be confined to a smaller area than that presently designated and the remainder of the premises could be used for the purposes of a club. There would be no change in the size of the building. The appellant's complaints of the change in purpose relate primarily if not solely to the likelihood that that portion of the premises to be occupied by the club might ultimately be equipped with poker machines. The use of poker machines would add one further form of gambling, albeit in a separate portion of the building, but this would be offset by the diminution in the space available for the gambling activities otherwise performed within the Casino. In my view, it was open to the first respondent to come to the view that overall, this did not involve a significant change in the purpose of the existing situation. Hence it was open to the first respondent to conclude that the application fell within an exception recognised by the Territory Plan.

Thirdly, Mr Einfeld submitted that it had been incumbent upon the second respondent to refuse the application because approval of the proposed change in the purpose clause would have facilitated an illegal purpose in that it would ultimately facilitate the use of poker machines contrary to the Casino Control Act and the Gaming Machines Act . For reasons previously discussed I do not accept that the decision gave rise to any such illegality.

Fourthly, Mr Einfeld submitted that the Commissioner had erred in failing to consider the social and economic effects of the proposed development and other public interest factors disclosed by relevant statements of government policy. However, as Mr Walker pointed out, the Commissioner is not a delegate of the Minister but an independent statutory officer appointed under section 274A of the Land (Planning and Environment) Act . In these circumstances, it is difficult to accept that he is bound to adopt statements of policy, whether made by the relevant minister or some other government official. In any event, it is clear from the statement of reasons that the public interest was duly considered.

Fifthly, the decision was attacked on the basis that he had failed to take into account the likely impact of competition with other established licensed clubs. The Commissioner has described this as a "market place issue" and one which was not a legitimate planning consideration in the context. Mr Einfeld again relied upon the contention that the public interest and the interest of clubs coincide because clubs give a significant amount of money to charity each year and provide other services which are generally in the public interest. As previously mentioned, I accept that there may be circumstances in which it would be appropriate for the relevant authority to take into account the fact that approval of the relevant application would be inimical to certain charitable purposes. However, there is. nothing in the Land (Planning and Environment) Act to suggest that philanthropists are to have entitlements not conferred upon their less generous fellows or that their protection from competition should be considered part of the public interest for planning purposes.

Furthermore, even if the Commissioner had taken the view that clubs were entitled to some pre-eminent position it is difficult to see how he could have regarded their interests as having been eroded in any relevant sense by a change in purpose clause to permit the use by a club of premises which had previously been unavailable to them. Such a change may facilitate further competition but as Higgins J pointed out in Jewels Food Stores v the Minister 269 at 280, owners of commercial premises normally have no legitimate expectation that competition will be restricted so as to protect their economic interests. Indeed, such an expectation might well be considered to be contrary to the public interest. Whilst clubs may be in a somewhat different position to normal commercial enterprises, I do not accept that it is incumbent upon the Commissioner to give priority to their interests. The statement of reasons indicate that the grounds of objection were considered though they were ultimately rejected.

I do not accept that the prospect of the change of purpose clause ultimately leading to some potential for added competition gives rise to a public interest consideration such that a failure to take it into account in considering an application of this nature will render the decision liable to be quashed by certiorari. In any event, to the extent to which this issue was raised in the objections, I am satisfied that it was in fact, taken into account by the Commissioner.

Having considered all of the matters advanced by Mr Einfeld, I am not satisfied that any error of jurisdiction has been demonstrated.

It is also clear that prerogative relief is discretionary. See, for example : The Queen v Cook; Ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15 and R v Medical Board of the Australian Capital Territory; Ex parte Davis (1995) 125 FLR 401. In the present case there are a number of considerations which would incline me to refuse to grant any prerogative relief in the exercise of that discretion.

First, much of the appellant's complaints concerned the fact that the decision was made without any preliminary assessment of the environmental impact of the decision. Yet, as previously observed, the Commissioner would have no power to require such an assessment and if I were to quash the existing approval any reconsideration of the application would presumably still occur without the assistance, if any, that may have been derived from such a report.

Secondly, I have the firm impression that all relevant matters were duly considered.

Thirdly, if notwithstanding that impression if I were to conclude that there had been some error of jurisdiction I would nonetheless remain of the view that there was no reason to suppose that any of the other factors referred to by Mr Einfeld during the course of argument would be likely to induce the Commissioner to take a different view of the application.

Fourthly, the application for prerogative relief was made some nine months after the relevant decision and during the intervening period the appellants had the benefit of legal advice and had pursued much the same arguments in proceedings before the Administrative Appeals Tribunal. Whilst a delay of that magnitude may be of little significance in other circumstances it seems to me that a party seeking to limit the use of commercial premises must act promptly. It is true that the second respondent did not seek to adduce any evidence of financial loss or other actual prejudice suffered as a result of the delay. However, as Mr Rayment made clear, the lease variation is only the first step that must be taken if a club is ultimately to be permitted to operate poker machines on the site. Consequently, it may be impossible to demonstrate the nature and extent of any prejudice that might eventually be suffered. Yet the potential for real prejudice to be caused to the second respondent is undeniable. In the present case, the potential prejudice caused by such a delay has not been ameliorated by any offer of an undertaking as to damages.

"The application under the Administrative Decisions (Judicial Review) Act 1989"

""96. Further issues arise in relation to the standing of the appellants to apply for a review of the Commissioner's decision under section 5 of the Administrative Decisions (Judicial Review) Act .

The relevant test is whether either appellant is a "person who is aggrieved" by the decision. Subsection 3(4) provides that a reference to this term includes a reference to a "person whose interests are adversely affected" by the decision. As previously mentioned, the requirement that a person be aggrieved has been broadly construed but involves at least a grievance suffered beyond that experienced as a ordinary member of the community. These terms have also been construed in the context of the corresponding Commonwealth statute. They have been held to require the existence of a special interest which is imperiled in some way by the decision : Tooheys Ltd v Minister for Business and Consumer Affairs at 79 ; US Tobacco Co v Minister for Consumer Affairs at 87; and Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46 FCR 38 at 43. In Rayjon Properties Pty Ltd v Department of Housing, Local Government and Planning (Qld) (1994) 85 LGERA 251, at 253, Thomas J referred to these decisions in construing the same terms in similar Queensland legislation and held, not surprisingly, that it was not sufficient for a commercial competitor to complain that he had lost the advantage of seeing his rival hindered, frustrated or delayed.

Each application for review also included the claim that the relevant appellant was aggrieved because "it considers the decision to be contrary to law". Subsection 3(4) recognises that a person may be so aggrieved in the case of decisions made under certain statutes including the Land (Planning and Environment) Act. Despite the absence of any words of limitation, I do not interpret this provision as deeming any potential objector to be a person aggrieved simply because he or she may hold a view that the decision was incorrect in law. As Gibbs J pointed out in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 530, albeit in a quite different context, if a belief that the law should be enforced in a particular manner were to be sufficient to give standing then anyone who felt strongly enough to bring an action could maintain it. It seems unlikely that the legislature intended to confer on mere busybodies or meddlers a right to apply to the Supreme Court for an order of review. In my view it remains necessary for a potential applicant to have a grievance suffered beyond that experienced as an ordinary member of the community though the section appears to recognise that a person who has such a special interest may be aggrieved even though that interest has not been adversely affected by the decision if he or she considers that decision to be wrong in law. Mr Einfeld did not make any submission to the contrary though he did contend, in my view correctly, that the test was a broad one.

It is true, of course that different terminology has been employed in the description of the test for standing under The Administrative Decisions (Judicial Review) Act. However, the issues raised by the appellants in relation to that test are essentially the same as those raised in relation to rights of objection under section 237 of the Land (Planning and Environment) Act .

For the reasons previously given in relation to those issues, I am not satisfied that either appellant has any special interest of a kind that would enable it to be regarded as a "person aggrieved", even if it genuinely considers the decision of the Commissioner to be contrary to law. Accordingly, I find that the appellants lack standing to apply for an order of review.

Furthermore, even if the appellants had been able to establish standing, their applications would have faced formidable difficulties.

The first such difficulty would have arisen from the fact that the applications were filed outside the application period and the appellants needed to establish adequate grounds for an extension of time.

Despite the absence of any supporting affidavit Mr Einfeld submitted that the facts were clear from the record of proceedings and not in dispute. The grounds for extending time were both straightforward and compelling. The appellants had quite properly proceeded to exhaust their rights of review under section 276 of the Land (Planning and Environment) Act before seeking alternative relief. The applications to the Tribunal had been dismissed only because of rulings concerning the standing of the appellants. The appellants had not anticipated those rulings. The substantive issues relating to the decision to approve the lease variation had still not been reviewed. Any prejudice to the position of the second respondent had not been caused by the appellant's failure to pursue their rights in a timely manner.

In other circumstances, I would have readily acceded to this submission but in the present case other discretionary considerations arise. It would plainly be inappropriate to grant an extension of time to permit an applicant to commence proceedings which it had no standing to bring. However, even if the appellants had been able to establish standing the second respondent would have been entitled to raise other considerations of some cogency.

The lease variation had potentially important consequences for the commercial interest of the second respondent. As previously mentioned, it seems to me that a delay of several months might be significant and significant loss or prejudice might ultimately be caused. On the other hand, the position of the first appellant was jeopardised, if at all, only by the possibility that the change in purpose clause might enable a club to be operated in the relevant premises, that other legal impediments to the operation of poker machines in those premises might be removed and, in that event, there might be some further competition for the revenue generated by the operation of such machines. The second appellant will apparently suffer no detriment save insofar as its interests may be said to be affected by the potential for increased competition for its members.

Nonetheless, the appellants have sought to raise a number of issues of public policy and whilst I have held that these are insufficient to establish standing they would clearly be relevant to any review of the Commissioner's decision which might be undertaken pursuant to section 5 of the Administrative Decisions (Judicial Review) Act . It seems to me that the validity and weight of the appellants' contentions may also be of relevance. Accordingly, the appellants' applications for extension of time should be considered in the light of the substantive issues which they seek to raise on the hearing of their applications for review.

The only grounds upon which a decision may be reviewed are those stipulated in section 5. That section is in the following terms:

(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Supreme Court for an order of review in respect of the decision on any 1 or more of the following grounds:

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was not authorised by the enactment under which it was purported to be made;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g) that the decision was induced or affected by fraud;

(h) that there was no evidence or other material to justify the making of the decision;

(j) that the decision was otherwise contrary to law.

(2) The reference in paragraph (1)(e) to an improper exercise of a power includes a reference to -

(a) taking an irrelevant consideration into account in the exercise of a power;

(b) failing to take a relevant consideration into account in the exercise of a power;

(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d) an exercise of a discretionary power in bad faith;

(e) an exercise of a personal discretionary power at the direction or behest of another person;

(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j) any other exercise of a power in a way that constitutes abuse of the power.

(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless -

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

In each case the grounds of application are as follows:

1 Although the first respondent was advised, and the second respondent accepted, that the decision was a defined decision of a class prescribed by the Territory Plan in effect under the Land Act ("the Plan") for the purposes of s114 of the Land Act, he nevertheless made his decision:

(a) in the absence of a mandatory preliminary assessment required by ss 113, 114 115 and 231 of the Land Act; and

(b) without having considered or evaluated any such mandatory preliminary assessment .

2 Although the first respondent found that his decision was subject to the provision of the Plan, he nevertheless failed to consider or take into account:

(a) the significant social and economic effects of the development for which the second respondent had applied,

(d) the unlawful use of the demised premises that the Variation would permit,

all of which are referred to in Appendix I.2 of the Plan.

(a) the procedures that were required by the Land Act and the Plan to be observed in connection with the making of the decision were not observed;

(b) the decision was not authorised by the Land Act;

(c) the making of the decision was an improper exercise of the power conferred on the first respondent by the Land Act, in that the first respondent failed to take relevant considerations into account in the exercise of the power;

In supporting these grounds, Mr Einfeld again relied upon submissions attacking the decision not to require a preliminary assessment which, he claimed, was mandatory.

In my view this decision can no more be impugned in the proceedings under the Administrative Decisions (Judicial Review) Act than it could in the proceedings for prerogative relief. Again, the "relevant minister" has not been joined as a party and neither the decision that a preliminary assessment was not required nor any perceived failure to comply with section 114 has been directly challenged. Nor do I accept that the jurisdiction legitimately invoked by the application for review of the approval of the lease variation extends to authorise any review of such a decision or failure of compliance. In the Tradesmens Union Club & Ors the Minister for the Environment Land and Planning & Anor (unreported SCACT, 18 December 1997) I expressed the view that section 276 did not authorise an application to the Administrative Appeals Tribunal to review a decision under section 113 or any alleged failure to comply with the terms of section 114 of the Act. The definition of the term "approval" in section 222 of the Act has since been amended but only in a manner which reflects the repeal of sections 240 and 241. For the reasons expressed in that judgment I remain of the view that it is not open to the Tribunal to review such a decision or perceived breach of duty either directly or by treating it as falling within the powers and discretions conferred on the relevant decision maker for the purpose of section 44(1) of the Administrative Appeals Tribunal Act . In the present case, there is a further impediment to any contention that any such decision may be reviewed as a result of the jurisdiction conferred by section 44(1) in that any perceived failure to comply with section 114 of the Land (Planning and Environment) Act would have been a failure by the relevant minister as a result of an allegedly erroneous decision by his or her delegate, whilst the decision to approve the change in purpose clause was made by the Commissioner. Consequently, there is no conceivable basis for any contention that the power and/or duty conferred by one or both of those sections fell within the description of "powers and discretion that are conferred by any relevant enactment on the person who made the decision". Section 17 of the Administrative Decisions (Judicial Review) Act is in less expansive terms and similarly fails to authorise any ancillary inquiry into the merits of such a decision.

That does not mean that the relevant minister's failure to comply with section 114 could not be challenged under the Administrative (Decisions Judicial) Review Act if it could be regarded as an administrative decision. The Minister's delegate had undoubtedly made an administrative decision to the effect that section 114 did not make notice requiring a preliminary assessment mandatory because the proposal fell within one or more of the exceptions in Schedule II.1 of the Plan. However Mr Rayment argued that section 114 does not require the Minister to make a decision. It merely requires him or her to issue a notice requiring a preliminary assessment in certain circumstances. He maintained that the section is "objective" and does not confer any discretion on a person such as the delegate who decides whether the proposal falls within any of the exceptions.

Section 3 of the Administrative Decisions (Judicial Review) Act provides that the Act applies to decisions of an administrative character "made, proposed to be made or required to be made . . . under an enactment . . .". Whilst I am inclined to agree with Mr Rayment's submission that the decision made by the Minister's delegate does not answer this description, I am not required to make any final determination of this issue in these proceedings because the applications do not purport to challenge any such decision and neither the Minister nor the delegate have been joined as parties.

Since the review sought could not extend to any such decision the present proceedings must be resolved upon the assumption that the decision of the minister may not be impugned.

Alternatively, Mr Einfeld submitted that the first respondent had fallen into error by failing to take into account the relevant minister's failure to comply with the requirements of section 114 and/or the absence of any preliminary assessment that would have been obtained but for that failure.

In my view these submissions are also unsustainable. For reasons previously given, I do not accept that the first respondent was deprived of jurisdiction to determine the application for approval of the lease variation because of any decision not to require such an assessment, even if that decision could be said to have involved contravention of section 114. Furthermore, even if the Commissioner had thought that there had been some breach of section 114, and there is no evidence to suggest that he did, he would not thereupon have become obliged or even entitled to refuse to exercise his duty to make a decision under section 230. Nor, in my view, would he have been entitled to take the view that any perceived contravention of section 114 required him to refuse approval under that section. Of course, the absence of a preliminary assessment necessarily meant that the first respondent was deprived of any additional information that might have been thereby provided and, if he had not been satisfied that the material available to him was sufficient to enable him to make a decision in accordance with his statutory responsibilities, it would have been open to him to have refused the application. In particular, it would have been open to him to have taken the view that in the absence of a preliminary assessment he could not be satisfied that the proposal was not inimical to the public interest. However, that was a judgment for the first respondent to make in the context of all of the information then available to him. The Act does not authorise the court to review that exercise of judgment.

The other grounds upon which the appellants sought review related to contentions that the first respondent had failed to consider or take into account the various matters referred to in ground 2 of the applications. In my view, these contentions must also be rejected. The statement of reasons suggests that the first respondent took into account the matters which had been raised in the appellants' objections.

If, having taken those considerations into account, the first respondent made a decision which he was authorised to make, that decision cannot be challenged under section 5 of the Act by the mere contention that the relevant considerations should have induced him to decide the matter differently. Furthermore, for the reasons previously expressed I do not accept the validity of the contention that the lease variation would permit "the unlawful use of the demised premises". It was not incumbent upon the first respondent to take into account that consideration because the proposition was, in my view, manifestly incorrect.

In all of the circumstances, I am not satisfied that the issues which the appellants raised in support of their applications for review justified granting an extension of time and having regard to the other discretionary factors to which I have referred I have concluded that their applications should be refused. Nor am I satisfied that any grounds for review under the Administrative Decisions (Judicial Review) Act have in fact been established.

In deference to the submissions which have been made I should, perhaps, mention section 9(2) of the Act which provides, inter alia, that the court may, in its discretion, refuse to grant an application for review if -

(i) the applicant has sought a review by a court including the Supreme Court of the matter otherwise than under this Act;

(ii) adequate provision is made by a law other than this Act under which the applicant is entitled to seek a review of that matter; or

(iii) the matter to which the application relates arises under the Buildings (Design and Siting) Act 1964 , the Land (Planning and Environment) Act 1991 or the Heritage Objects Act 1991 and is a matter being reviewed, or for which application has been made for review, under a law other than this Act, whether on the application of the person who has made application to the Supreme Court for review of the matter under this Act or any other person.

However, having regard to the view which I have taken of the appeals from the decision of the Tribunal, I would not have refused the present applications on any of these bases.

"The significance of registration under the Land Titles Act"

""121. A further impediment to the relief which the appellants seek arises from the fact that the lease variation has now been registered. Hence it has effectively varied the lease and any arguments about the validity of the approval which authorised that variation may be of merely academic interest.

122. Mr Einfeld sought to meet this consideration by adverting to section 161 of the Land Titles Act 1925 which is in the following terms:

161 (1) In any proceedings in which the correctness or otherwise of the Register is in issue, the Court may require the Registrar-General to correct the Register or direct the Registrar-General not to do so.

(2) In any proceedings in the Court in relation to -

(b) any transaction, contract or application relating to land; or

(c) any instrument, memorial or other entry affecting land;

the Court may, by order, direct the Registrar-General

(d) to correct, record, substitute, issue or cancel any certificate or memorial, or to correct, record, substitute, make or cancel any entry in the Register, notwithstanding that the relevant duplicate certificate has not been produced to the Registrar-General; or

(e) otherwise to do any acts and make any entries that are necessary to give effect to any judgment or order of the Court given or made in those proceedings;

and the Registrar-General shall give effect to such a direction.

(3) An order made under subsection (2) is not effective to vest a registrable interest in any person before the appropriate entry is made in the Register.

123. He submitted that subsection (2) confers upon the court a discretion which is unlimited in its terms and wide enough to apply in the present circumstances. The indefeasibility of title generally conferred by the Land Titles Act is, he contended, limited at least in relation to the period before a bona fide purchaser or mortgagee acquires an indefeasible title. Indeed, he maintained that the need to preserve the effectiveness of objections and applications to the Tribunal provides a compelling reason for the court to exercise the discretion. As he put it in his submission, if the horse has bolted then the subsection enables the court to catch it and put it back where it should be.

124. In answer to this contention Mr Walker submitted that the section was merely facultative in that it conferred a power on the court to grant incidental relief when fraud or some other relevant cause of action had been established. It is plain that such relief could not be granted as an incident of the present proceedings. The relief sought in the present proceedings is limited to orders quashing the relevant approval and remitting the matter to the Commissioner or the Administrative Appeals Tribunal for further consideration.

125. Any construction of the power conferred by section 161 must plainly occur in the context of the statutory scheme of which it is a part. Section 57(1) provides that the relevant estate or interest in land vests upon registration. Section 58 is in the following terms:

Notwithstanding the existence in any other person of any interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, a person becoming registered as proprietor of land or of any interest in land under this Act shall, except in case of fraud, hold the land or interest, subject to such interests as are notified on the folium of the Register constituted by the grant or certificate of title of the land, but absolutely free from all other interests whatsoever except as to -

(a) the interest of a proprietor claiming the same land under a prior certificate of title or under a prior grant registered under this Act;

(b) any right of way or other easement created in or existing upon the same land which is not described, or is misdescribed in the relative certificate of title;

(c) any portion of land that may be wrong description of parcels or of boundaries be included in the grant, certificate of title, lease or other document or instrument evidencing the title of the registered proprietor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value;

(d) any prior tenancy for a term not exceeding 3 years;

(e) any eases, licences or other authorities granted by the Territory and in respect of which no provision for registration is made; and

(f) any unpaid rates, taxes or other moneys which are expressly declared by any Act or law to be a charge upon land:

Provided that the land which is included in any certificate of title or registered instrument shall be deemed to be subject to the reservations, exceptions, conditions and powers (if any) contained in the grant thereof.

126. Section 154 provides, inter alia, that a person deprived of any land or interest in land by the registration of an adverse interest may bring an action for damages whilst sections 143 and 144 enable recovery from the Australian Capital Territory in certain circumstances.

127. In this context I am unable to accept that in enacting section 161 the legislature intended to create a broad discretion to destroy or vary estates or interests in real property. It is true that an obvious distinction may be drawn between estates or interests in land and lease variations such as the one in question, but no such distinction is reflected in the terms of the section. Those terms either give rise to a broad discretion in relation to all entries on the register sufficient to enable substantive rights to be impugned or they merely authorise the court to correct the register in order to reflect the findings and orders of the court consequent upon the establishment of a sufficient cause of action. In my view the latter construction is the correct one and, as Mr Walker has submitted, the section is facultative.

128. No action has been brought which purports to invoke the terms of section 161 and, whilst Mr Einfeld foreshadowed further proceedings if his clients were ultimately successful in persuading the Commissioner to refuse the application, it is difficult to see what cause of action could be pleaded which would give the appellants a viable claim for relief of that kind. The appellants do not assert that they have any interest in the land in question and would not have been entitled to lodge a caveat under section 30 to prevent the registration of the lease variation. Furthermore, there can be no suggestion of fraud and the issues raised by the appellants do not fall within any of the exceptions provided by section 58. There is certainly nothing in the Land Titles Act or the Land (Planning and Environment) Act to suggest that such a power could be invoked at the instance of a third party claiming no interest in the relevant land but merely pointing to perceived errors in the approach taken by government officials who had given some antecedent approval. It seems to me that to accept that the normal indefeasibility of title could be impugned in this manner would seriously erode public confidence in the whole system of land tenure in the Australian Capital Territory.

129. Mr Einfeld submitted that the answer to this concern was to be found in the principle that a bona fide purchaser for value without notice of the invalidity of the antecedent approval would be entitled to maintain the indefeasibility of his or her title, but he maintained that the title was defeasible under section 161 whilst it remained in the hands of the original lessee. Such a distinction might make sense when title to land has been obtained fraudulently. In those circumstances, it is obviously appropriate that the court be empowered to take from the initial transferee the fruits of his or her own fraudulent or illegal behaviour whilst maintaining indefeasibility in respect of any bona fide purchaser for value who has taken the interest in land without notice of the fraud. In cases such as the present, however, the distinction is meaningless. It is not suggested that the second respondent was guilty of fraud or of any illegal conduct. At the time the lease variation became effective the second respondent was aware that the Commissioner had approved the variation notwithstanding the objections made by the appellants and also aware that the Tribunal had ruled that they had lacked the standing to be objectors or to maintain proceedings to review the approval. Furthermore, as previously mentioned, the second respondent had paid a substantial sum for betterment tax. Consequently, apart from the fact that it was the party originally entitled to the benefit of the lease variation, it was in no different situation than that of any other bona fide purchaser for value without notice of illegality.

130. Even if some cause of action could be devised which would provide some legal basis for invoking the discretion which Mr Einfeld maintains is conferred by section 161(2) there would be sound reasons for declining to exercise any such discretion. There has been no suggestion that the lessee has been guilty of any impropriety. The relief sought in the present proceedings is dependent entirely upon allegations that the Commissioner made certain errors in the discharge of his statutory responsibility. It is not suggested that the second respondent caused or contributed to those errors. The approval apparently became effective, by virtue of section 249 of the Land Act , on the day on which it was given or, at any rate, no later than the day on which the Tribunal ruled that the appellants had not had standing to object under section 237 or apply for review under section 276. In reliance upon the effectiveness of that approval the lessor issued the variation of lease and the lessee paid the sum of $30,000 betterment tax. The Executive then proceeded to have the variation of lease registered in accordance with its statutory obligation under section
131. The appellants, who were represented throughout the proceedings conducted before the Administrative Appeals Tribunal by senior counsel, must be taken to have been aware of these statutory provisions. In any event, the statement of reasons for the approval, which was a document tendered during those proceedings, made it plain that the approval was subject to the condition that the lessee do all that was necessary to ensure that the instrument was registered within 14 days of being notified that it was available for registration. Despite this, the appellants took no steps to restrain the lessor from registering the relevant instrument pending any appeal from the Administrative Appeals Tribunal or any other proceeding. They did not even foreshadow the likelihood of such proceedings and request that registration be deferred.

131. For these reasons, I am of the view that any application under section 161 of the Land Titles Act would inevitably fail. Consequently, even if the validity of the approval for the lease variation could now be impugned that would not enable the appellants to have the lease further varied so that the purpose clause reverted to its former terms. Accordingly, I am of the view that there would be no utility in granting any of the relief sought in these proceedings and I would in any event have dismissed them on that ground.

132. Mr Walker also argued that none of the proceedings before me could properly be regarded as proceedings of the kind referred to in subsection 161(2). In support of this contention he relied by way of analogy on Comptroller-General of Customs & Anor v Kawasaki Motors Pty Ltd (No 2) [1991] FCA 518; (1991) 32 FCR 243 in which the Full Court of the Federal Court of Australia held that proceedings for judicial review of administrative decisions concerning customs duty and seeking a refund of the monies paid as a consequence were not proceedings for the recovery of money. I am inclined to think that this decision is distinguishable because the description of relevant proceedings in section 161 is significantly wider than that with which the Full Court was concerned. In particular, it extends to "any proceedings . . . in relation to, . . . any . . . application relating to land". That formulation would seem to be apposite to describe the present proceedings. However, this issue does not arise for determination. Mr Einfeld has not sought relief under section 161 in these proceedings but merely foreshadowed the possibility of further proceedings to obtain such relief in the event that the appellants were to succeed in having the Commissioner's decision reviewed and the lease variation ultimately overturned.

133. The appeal and the applications made in these proceedings must be dismissed.