Administrative Law - Judicial review - Standing to institute proceedings - Generally - To be determined as at time of institution of proceedings - Incorporated association representing irrigators and riparian owners.

Judicial Review Act 2000 (Tas), s7(1).

Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 54 FLR 421; Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124, referred to.

Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46 FCR 38, followed.

Judgment Number: [2007] TASSC 95

CLYDE GROUP INCORPORATED v MINISTER FOR PRIMARY

1 The applicant has instituted proceedings under the Judicial Review Act 2000 seeking the review of a Ministerial decision under the Water Management Act 1999, s28, adopting the Lakes Sorell and Crescent Water Management Plan and the River Clyde Water Management Plan. The respondents have applied for the originating application to be dismissed. They contend that the applicant has never had the standing necessary for it to be entitled to bring proceedings under the Judicial Review Act in respect of the decision in question.

2 The right to apply for the review of a decision under the Judicial Review Act is conferred by s17(1) of that Act, which reads as follows:

"17 (1) A person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to the decision."

3 The meaning of "a person who is aggrieved" is dealt with in s7(1), which reads as follows:

"7 (1) In this Act, a reference to a person aggrieved by a decision is taken to be a reference to -

(a) a person whose interests are adversely affected by the decision; or

(b) in the case of a decision by way of the making of a report or recommendation, a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation."

4 The applicant is an incorporated association. It was incorporated under the Associations Incorporation Act 1964 on 14 March 2007. The decision in question was made on 17 October 2005, before the applicant came into existence. The respondents contend that it follows that the applicant's interests were not adversely affected by the decision; that it is therefore not a "person who is aggrieved" by the decision; that it had no right to institute proceedings for the review of the decision; and that its originating application must be dismissed. On that basis, they rely on the Judicial Review Act, s38(1)(a), (b) and (c). Under those provisions, this Court may dismiss an application made under s17 if it considers that it would be inappropriate for proceedings relating to the application to be continued, or that no reasonable basis for the application is disclosed, or that the application is "frivolous or vexatious".

5 The applicant contends that the timing of its incorporation does not preclude it from being a person who is aggrieved by the decision, and that it has interests that are adversely affected by the decision, within the meaning of s7(1)(a). In the interpretation of s7(1)(a), it is necessary to prefer an interpretation that promotes the purpose or object of the Judicial Review Act to one that does not: Acts Interpretation Act 1931, s8A(1).

6 The Judicial Review Act is modelled on the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). There is similar legislation in a number of other States. The purpose of such judicial review legislation is to supersede the complex prerogative writ procedures that were previously available, and to provide comparatively simple procedures for the review of a very broad range of administrative decisions. It follows that an interpretation that would facilitate the review of an administrative decision should be preferred to one that would compel a litigant to seek some other form of relief, perhaps in the form of a declaration or an injunction.

7 The meaning of the expression "a person who is aggrieved" in the ADJR Act, s5, was considered by Ellicott J in Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 54 FLR 421. At 437 his Honour said:

"The words 'a person who is aggrieved' should not in my view be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied however that it 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."

8 In Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124, Gummow J reviewed the authorities as to the meaning of "a person who is aggrieved", and said the following at 132 - 133:

"It also has to be borne in mind that the ADJR Act is ambulatory in its operation and draws within its scope a diverse and extensive collection of decision-making processes, truly an unclosed class. Too rigid a criterion of locus standi will threaten to stultify the utility of the procedures the ADJR Act offers.

Hence the force of the observations (frequently adopted in this Court) by Ellicott J in Toohey's [sic] case [1981] FCA 121; (1981) 54 FLR 421 at 437 - 438 to the effect that the meaning of 'a person aggrieved' is not encased in any technical rules and that much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public."

9 Counsel were unable to refer me to any cases as to whether a corporation can be a person aggrieved by a decision made before its incorporation nor, for that matter, any cases as to whether an individual can be a person aggrieved by a decision made before his or her birth. The respondents' contentions are based on the premise that the Judicial Review Act permits applications to be made only by persons whose interests are adversely affected by a decision at the time of its making. However it has been held in a case concerning the ADJR Act that the question of standing or "aggrievement" is to be determined by reference to the facts existing at the time of the institution of the proceedings: Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46 FCR 38 at 46. I think there are good reasons to interpret the Tasmanian legislation in that way.

10 There are no doubt many situations in which impeachable administrative decisions can have impacts in respect of interests arising after the making of the decisions. For example, a person might inherit or purchase a property that is adversely affected by an amendment to a planning scheme that was not made in accordance with the law. It would be absurd if relief under the Judicial Review Act was available only to a person who owned the property at the time of the impeachable decision, and a new owner was compelled to seek a declaration or an injunction in accordance with case law that that Act was intended to render obsolete.

11 In my view it would promote the purposes and objects of the legislation to adopt an interpretation whereby the question whether a person or corporation is a "person who is aggrieved" should ordinarily be determined by reference to the facts existing when the proceedings are instituted. Despite the applicant not having been created when the decision in question was made, in my view it must be a "person who is aggrieved" if it had a sufficient interest in the subject matter of its originating application when it was filed.

12 It claims to have such an interest on the basis that it is a body that was formed to represent the interests of its members, whose interests were adversely affected by the decision in question. I accept the affidavit evidence as to the role of the corporation adduced on behalf of the applicant. It was formed to represent the interests of farmers and landholders in the Bothwell district who held irrigation rights under the Irrigation Clauses Act 1973, who drew water from Lake Crescent and the River Clyde, and who depended on the supply of water from those sources.

13 An unincorporated association named the Clyde Valley Irrigators Group was established in or about 2003. Its function was to represent the interest of irrigators in the Clyde Valley. It held meetings on an ad hoc basis. It incurred expenses and collected money to meet those expenses, initially on an ad hoc basis. It made a representation to the Resource Planning and Development Commission, apparently in accordance with the Water Management Act, s25, about the draft management plans prior to their adoption by the Minister. One of its convenors wrote on its behalf to an officer of the Department of Primary Industries, Water and Environment about the draft plans on 30 January 2005. The two management plans adopted in October 2005 by the decision in question did not operate during the irrigation season of 2005. They first operated in 2006. A number of representatives of the Clyde Valley Irrigators Group wrote to the Minister on 27 November 2006. By mid-December 2006 it became apparent that the town of Bothwell was in danger of running out of water.

14 On 2 January 2007 there was a meeting between a number of irrigators, the Minister, and officers of the second respondent and the Central Highlands Council. Two days later, a meeting of irrigators was held in order to receive a report as to the meeting of 2 January and to discuss potential actions. It was then resolved to incorporate the association using the name "Clyde Group".

15 It seems clear that members of the applicant corporation have proprietary and financial interests that are affected by the decision in question, since they depend on water from Lake Crescent and the Clyde to operate their farms, and for domestic supplies. However the fact that the members of a representative body have standing does not, without more, mean that the representative body has standing: North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492 at 512; Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50 at 67; Manuka Business Association Inc v Australian Capital Territory Executive (1998) 146 FLR 464 at 468.

16 It has never been held that the principles governing the award of declarations and injunctions under the general law have been superseded by different criteria under judicial review legislation: North Coast Environment Council Inc v Minister for Resources (supra) at 511 - 512. In that case, Sackville J held that various principles established in Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 were applicable to proceedings under judicial review legislation. In Australian Conservation Foundation v Commonwealth at 530 - 531, Gibbs J (as he then was) stated the applicable principles as follows:

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

17 In order for an incorporated body to fall within the guidelines adopted by Gibbs J, there must be a relationship between that body and the decision in question such as would make the grievance suffered by the body something beyond that of ordinary members of the public: North Coast Environment Council Inc v Minister for Resources (supra) at 512 - 513; Tasmanian Conservation Trust Inc v Minister for Resources [1995] FCA 1035; (1995) 55 FCR 516 at 552 - 553; Manuka Business Association Inc v Australian Capital Territory Executive (supra) at 468 - 469. The Full Court of the Federal Court of Australia summarised the position in Transurban City Link v Allan [1999] FCA 1723; (1999) 95 FCR 553 at 565, as follows:

"In summary, the question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant. There will be a question of degree involved in many cases."

18 As at 16 October 2007, the applicant corporation had 15 members. Its only role is to act as a representative body for the purpose of making representations to the authorities in relation to the bodies of water affected by the decision in question. There is no suggestion that any other representative body with similar interests exists, nor that this body lacks support amongst the class of persons whose interests it was formed to represent. It and its unincorporated predecessor have undertaken the role of making representations. To a small degree, that role has been acknowledged by the exchange of correspondence.

19 Courts have powers to dismiss civil proceedings that have no hope of success both under rules of court and as part of their inherent jurisdiction. The principles governing the exercise of such powers were set out by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128 - 130. Since the Judicial Review Act, s38, confers similar discretionary powers, I think the same principles ought to be applied when a respondent seeks the dismissal of an application pursuant to that section. In General Steel (supra) at 128 - 129, Barwick CJ said:

"The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion."

20 In my view this is not a clear case. On the basis of the evidence as to the role, activities and recognition of the applicant corporation, I think judicial minds could well differ as to whether it should be regarded as having a sufficient interest for it to be regarded as a "person who is aggrieved" by the decision that it is seeking to impugn. I therefore think the appropriate course is not for me to reach a conclusion as to that question. I think it is a question that should be decided upon the hearing of the originating application. It follows that the interlocutory application must be dismissed.