Supreme Court of Tasmania|2008-06-03|Before: Crawford CJ, Tennent JJ, Slicer J

Llewellyn v Clyde Group Inc [2008] TASSC 25 (3 June 2008)

CITATION: Llewellyn v Clyde Group Inc [2008] TASSC 25

TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

JUDGMENT OF: Crawford CJ, Slicer and Tennent JJ

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 - Not incorporated until after decision being reviewed.

Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46 FCR 38; Sharples v O'Shea [1999] QSC 190; Allan v Transurban City Link Ltd (2001) 208 CLR 167; Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 168 ALR 687, considered.

Judgment Number: [2008] TASSC 25

THE HONOURABLE DAVID LLEWELLYN AND THE RIVERS AND WATER SUPPLY COMMISSION v CLYDE GROUP INCORPORATED

1 The question for determination is whether, for the purposes of the Judicial Review Act 2000 ("the Act"), an applicant for review of a decision must have been aggrieved by the decision at the time of its making or whether instead, it is sufficient if the applicant was aggrieved by the decision at the time of the filing of the application to review the decision.

2 For the purposes of the appeal, the facts are simple. On 17 October 2005, the first appellant, who was the Minister for Primary Industries and Water, made a decision under the Water Management Act 1999, s28, by which he adopted the Lakes Sorell and Crescent Water Management Plan and the River Clyde Water Management Plan. Approximately 17 months later, on 14 March 2007, the respondent was incorporated under the Associations Incorporation Act 1964. It was formed to represent the interests of its members, who were farmers and landholders in the Bothwell district who held irrigation rights under the Irrigation Clauses Act 1973 and who drew water from Lake Crescent and the River Clyde. The members have proprietary and financial interests that are affected by the decision in question, since they depend on water from Lake Crescent and the River Clyde to operate their farms, and for domestic supplies. As individuals, they may qualify as persons aggrieved by the decision.

3 It is the appellant's case that for a person to be aggrieved by a decision under the Act, that person must have been so aggrieved at the time of the making of the decision (and possibly also at the time of the making of the application for review), and as the respondent was not formed until after the decision in question was made it had no standing to make an application under the Act in respect of the decision. It is the respondent's case that it is sufficient if an applicant is aggrieved by the decision at the time of making the application under the Act for a review of the decision.

4 The originating application for a review of the decision was filed by the respondent on 12 September 2007. In response, the appellants filed an interlocutory application on 26 September 2007, in which they sought an order that the originating application be dismissed on the sole ground that the respondent, having been incorporated on 14 March 2007, was not a "person aggrieved" by the decision at the time of its making. The interlocutory application was founded on the Act, s38(1)(a), (b) and (c), which provide that the court may dismiss an application for review if it considers that it would be inappropriate for the proceedings to be continued, that no reasonable basis for the application is disclosed, or that the application is frivolous or vexatious. The interlocutory application was heard by a judge on 22 October 2007 and it was dismissed on 23 November 2007. The learned judge held that the respondent "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". In other words, it was held that the fact that the respondent did not exist at the time of the making of the decision and therefore, it was not a person who was aggrieved by the decision at that time, did not prevent it from making the application for review if it was a person who was aggrieved by the decision at the time when the application was filed.

5 The learned judge did not determine whether in fact the respondent had a sufficient interest in the decision at the time of the filing of the originating application so as to qualify as a person who was aggrieved by the decision, concluding that it was not a clear case, that judicial minds could well differ about the matter and that it was more appropriate for it to be decided upon the hearing of the originating application. Why the learned judge considered that matter at all is not apparent from the papers before this Court, which do not include a transcript of the hearing. It was not raised by the terms of the interlocutory application. In any event, the appeal does not concern that aspect of the learned judge's reasons. It concerns only the determination that for a person to be relevantly aggrieved it is sufficient if the person is so aggrieved at the time of the filing of the originating application and unnecessary that the person was aggrieved at the time of the making of the decision. It is the appellant's case that the learned judge should have held that the person had to have been aggrieved at the earlier time and for that reason, should have allowed the interlocutory application and dismissed the respondent's originating application.

6 By s17(1) it is provided that "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." The subsection is couched in the present tense and seems to mean, on its face, that the person must be aggrieved at the time of the making of the application for review.

7 There are some authorities relevant to the issue. In Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46 FCR 38, Spender J considered the Administrative Decisions (Judicial Review) Act 1977 (Cth), s5, which provided, in similar terms to the Act, s17(1), that "a person who is aggrieved by a decision to which this Act applies ... may apply to the Court for an order of review in respect of the decision...". At 46, his Honour thought, with some diffidence, that the question of standing or aggrievement was initially to be addressed at the time of the institution of the proceedings. The question whether an applicant for review needed to have standing at the time of the decision or conduct under review, as well as at the time of the institution of the proceedings, was not mentioned by the learned judge. The issue in that case relevant to the issues in this case, was whether the applicant's standing or aggrievement needed to continue to exist at the time of the hearing of the application to review.

8 In Judicial Review Of Administrative Action 3rd ed by Aronson, Dyer and Groves at 644, it is stated that "people can acquire standing after the making of the decision whose validity they want to litigate" and Sharples v O'Shea [1999] QSC 190 at par23 is cited as authority for the proposition. It concerned an application to judicially review a decision of the Electoral Commission of Queensland to register a political party, the applicant for review claiming to have become a member of the party after its registration. When dealing with the question whether the applicant had standing, Atkinson J said that it was to be decided as at the time when the proceedings were commenced and not at the time of the registration of the party. No authority for the proposition was cited. The legislation there considered, the Electoral Act 1992 (Qld), s180, provided that an application to review a decision to register a party could be made by "any person affected by the decision".

9 In Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 168 ALR 687, the Full Court of the Federal Court considered the Administrative Appeals Tribunal Act 1975 (Cth), s27, which provided that an application for review "may be made by or on behalf of any person or persons ... whose interests are affected by the decision". At par59, the five members of the court expressed the view that the use of the present tense in the section required "that a person making an application to the Tribunal for review of an administrative decision must at the time of application be a person whose interests were at that time still affected". The court then went on to consider what should happen if the applicant had ceased to have a sufficient interest at the time of the hearing of the application, a point that does not arise here. The court did not discuss whether the applicant must have a sufficient interest at the time of the making of the administrative decision under review. The use of the word "still" in the passage I cited suggests that may have been the view of the court, but I am not confident that the court intended to communicate it.

10 On appeal in Allan v Transurban City Link Ltd (2001) 208 CLR 167, the majority of judges, Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, did not address the question. However, at 187, Kirby J said that s27 required that the person's interests be affected at the time of the making of the application. Similarly, it was his Honour's view that the provision in the Development Allowance Authority Act 1992 (Cth), s119(1), that "a person who is affected by a reviewable decision may ... request the DAA to reconsider the decision" required the person to be so affected at the time when the request was made.

11 The interpretations of Kirby J, and those of Spender J in Queensland Newsagents Federation Ltd v Trade Practices Commission and Atkinson J in Sharples v O'Shea favour an interpretation of the Act, s17(1), as requiring only that the person be aggrieved by the decision at the time when the application to review is made. However, it was emphasised in Allan v Transurban City Link Ltd, by the majority at 174, that the answer to such questions must be determined by reference to the subject, scope and purpose of the statute. A similar view was expressed by Kirby J at 184 - 185, where his Honour said that the true starting point for analysis is a close examination of the legislation in question, rather than the general observations of judges concerning identical or analogous legislative provisions or principles of the common law.

12 When looking for the answer, a court should look at other provisions in the Act that may be material, including those that govern the consequences that might result from one or other interpretation. Further, an interpretation that required an applicant to be aggrieved at the time of the making of the decision would provide closure for the determination of the class of potential applicants. On the other hand, if any person, at any time following the making of the decision, could become a person aggrieved by it by coming into existence or acquiring a material interest that was affected by the decision, in some cases, perhaps a great many, the class of potential applicants might never close. Consideration needs to be given to the possibility that if a liberal interpretation is to be preferred, applications for review could legitimately be made a great number of years after the making of the decision, during which time the decision may have been accepted and acted upon by many, including those who were affected by it at the time it was made.

13 By section 7(1), a reference in the Act 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. For a case envisaged by par(b), it is provided by s6 that if provision is made in an enactment for the making of a report or recommendation before a decision is made, the making of the report or recommendation is itself taken for the purposes of the Act, to be the making of a decision.

14 Under the Act, s23, there is a basic 28-day time limit for the making of an application for review, but time is not expressed to commence at the time the decision is made. In the main, its commencement depends on whether or not the terms of the decision and a written statement of the reasons for it, have been given to the applicant. If the applicant was not given a document setting out the terms of the decision, the 28-day time limit does not apply, but the court may refuse to consider the application if of the opinion that it was not made within a reasonable time after the decision was made. See s23(2). Under subs(3), in forming an opinion about such a matter, the court must have regard to the time when the applicant became aware of the decision, the period provided by s23 for the making by any other person of an application for an order of review relating to the decision, and such other matters as it considers relevant.

15 If the applicant has been given a document setting out the terms of the decision, the basic 28-day time limit applies, but it does not necessarily operate from the date on which that document was so given. The position is:

• if at the time the document setting out the terms of the decision is given to the applicant, the document includes, or is accompanied by, a statement giving the reasons for the decision, the 28 days commences at that time (see s23(1)(4)(a));

• if a statement giving the reasons of the decision is given to the applicant (other than pursuant to a request under s29) not later than 28 days after the day on which the document setting out the terms of the decision was given to the applicant, the 28 days commences when the statement giving the reasons is given to the applicant (see s23(1)(4)(b));

• if the applicant makes a request, under s29, of the person who made the decision, to give a statement containing the reasons for the decision, the 28 days commences when the statement of reasons is given; or when the applicant is notified by the decision-maker under s30(2) that the applicant was not entitled to make the request; or when the applicant is notified by the decision-maker under s30(5) that the statement will not be given because the request was not made within 28 days after a document setting out the terms of the decision was given to the applicant, or in any other case, because the request was not made within a reasonable time after the decision was made; or when the applicant is notified by the decision-maker under s34 that the statement will not be given because information in it is of a confidential nature or should not be disclosed in the public interest; or when the Court makes an order s36 declaring that the applicant was not entitled to make the request (see s23(1)(4)(c)); or

• in any other case, the 28 days commences on the day on which a document setting out the terms of the decision is given to the applicant (see s23(1)(4)(d)).

1">16 If an applicant makes an application for review a long time after the making of the decision that is sought to be reviewed, the application might be refused by the court because it was made outside one of the 28 day time limits. If the applicant has not been given a document setting out the terms of the decision, the court has a discretion whether to refuse to consider the application. If the applicant applies to the decision-maker under s29 for a statement of reasons for the decision, the decision-maker may refuse to provide the statement if the request was not made within a reasonable time. The court may or may not overrule that refusal. Further, under s38(1)(a)(i), the court has a discretion whether to dismiss an application if it considers that it would be inappropriate to grant it. Considerations of delay, and the effects of the passage of time, might be relevant to the exercise of the discretion. Because of all those matters, it can be seen that a number of safeguards are in place to ensure that justice can be done in the case of a person who makes an application for review a relatively substantial time after the making of the relevant decision.

17 It is to be observed that within the meaning of "a person aggrieved" in s7, a person could be aggrieved by a decision at the time of its making, for example, because that person's interests were adversely affected by the decision, and yet that person might not be given a document setting out the terms of the decision, or a statement of the reasons for them, and might not even be aware of the decision itself, until a considerable time after its making. The basic 28-day time limit will apply to that person. In general, the prescription of the basic time limit in s27 is expressed in terms that relate to when the applicant is first given a document or statement, and not to when the decision was made.

18 The learned judge was of the opinion that the purposes and objects of the legislation would be promoted by adopting an interpretation whereby the question whether a person is a "person who is aggrieved" should ordinarily be determined by reference to the facts existing when the proceedings are instituted. His Honour's view was that such an interpretation would facilitate the review of administrative decisions under the Act and was a result that was preferable to one in which a litigant might feel compelled to seek some other form of relief, perhaps in the form of a declaration or an injunction. His Honour has not been shown to be in error in holding that view.

19 For all of the above reasons, the appellant has not established that the learned judge erred by failing to allow the interlocutory application. The appeal should be dismissed.

THE HONOURABLE DAVID LLEWELLYN AND THE RIVERS AND WATER SUPPLY COMMISSION v CLYDE GROUP INCORPORATED

20 On 17 October 2005, the Minister for Primary Industries and Water adopted the Lakes Sorell and Crescent Water Management Plan and the River Clyde Water Management Plan, pursuant to power granted by the Water Management Act 1999, s28. On 14 March 2007, the respondent was incorporated under the Associations Incorporation Act 1964. It had 15 members and its only role was to act as a representative body for landowners in relation to the bodies of water affected by the Minister's decision. The Association requested the Minister to provide reasons for the 2005 decision, a request complied with by the Minister in August 2007. On 12 September 2007, the respondent, by originating application, sought to quash the decision pursuant to the Judicial Review Act 2000, on the grounds that:

"(i) THAT pursuant to s17(2)(e) JR Act the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made, the Water Management Act 1999, on the grounds set out in ss20(a), (b), (g) and (h) JR Act;

(ii) THAT pursuant to s17(2)(f) JR Act, the making of the Plans involved an error of law for failing to address the statutory requirements of ss15 and 16 of the Water Management Act 1999;

(iii) THAT pursuant to s17(2)(i) JR Act, the decision was otherwise contrary to law as being an exercise of power by the Minister contrary to the Lakes Sorell & Crescent Conservation Act 1901."

21 On 25 September the appellant, by interlocutory application, sought the dismissal of the originating application in these terms:

"1 That the Originating Application be dismissed, pursuant to s38(1)(a)(i) and/or s38(1)(b) and/or s38(1)(c) of the Judicial Review Act 2000, on account of the Applicant, Clyde Group Incorporated, having been incorporated on 14 March 2007, thereby not being a 'person aggrieved' by the decision which is the subject of the proceedings (namely that made on 17 October 2005 to adopt the amended Draft Plans which thereby became the Lakes Sorell and Crescent Water Management Plan and the River Clyde Water Management Plan).

2 That the Clyde Group Incorporated pay the costs of the Respondents of the Originating Application and this Application."

22 The application was heard on 22 October and 23 November. The learned primary judge dismissed the application. On 30 November, his Honour heard further submissions in relation to interlocutory applications made on 17 October and 2 November 2007, permitted amendment to the originating application and the joinder of Dennistoun Pty Ltd and Anthony Archer as applicants to that originating application, and reserved questions of costs arising from the further interlocutory applications to "the judge who determines the originating application". His Honour adverted to the joinder in his oral reasons for judgment, delivered on 30 November 2003, stating at pars16 - 18:

"So far as the discretion to add additional applicants is concerned, adding them in my view will not place the respondent in any worse position than he has been in as a result of the commencement of the proceedings on 12 September. If the proposed additional applicants had foreseen the argument that might be raised as to the standing of the original applicant, I think it is likely that they would have joined in from the outset as applicants.

Therefore, prima facie I think it is in the interests of justice that they should be joined as applicants, provided there is no undue prejudice to anyone. The Minister has been on notice, at least since the requesting of reasons, of the possibility that someone with appropriate standing would challenge the decision as to the adoption of the two management plans. The proposed additional applicants, of course, are exposing themselves to the possibility of orders for costs if the proceedings are unsuccessful. In that respect, their joinder might operate to the advantage of the respondent.

It may be that arguments will be raised at the hearing of the originating application as to the discretionary refusal of relief under the Act. The Court no doubt has a discretion to refuse relief on the basis of delay, laches, acquiescence or similar discretionary factors. If I make an order for joinder of additional applicants, that will not preclude the respondent from arguing that the decision under review should be set aside on discretionary grounds. I anticipate that that sort of argument might be raised given the delay of over 18 months between the gazettal and the request for reasons."

23 On 29 November, the appellant filed a notice of appeal, seeking orders that:

"1.1 That the orders of the Honourable Justice Blow made and entered the 23rd November 2007 in proceeding 596 of 2007 by which His Honour dismissed the interlocutory application filed by the Appellants on the 25th September 2007, and that the Appellants pay the Respondent's costs of the interlocutory application, be set aside.

1.2 That in lieu thereof the Originating Application of the Respondent in proceeding 596 of 2007 be dismissed with costs.

1.3 That the costs of this Appeal by paid by the Respondent."

"1 His Honour erred in law in construing the phrase 'a person who is aggrieved by a decision' in s17(1) of the Judicial Review Act in such a way as to encompass a person not in existence at the time the decision was made, when the proper construction of the phrase does not encompass such a person.

2 His Honour erred in law in rejecting the contention that s17 of the Judicial Review Act 2001 only permits applications to be made by persons whose interests are already affected by a decision at the time it was made."

24 The basis of the appeal is misconceived. The learned primary judge did not dismiss the interlocutory application on the basis that it was without merit. He declined to rule on the matter as an interlocutory one, reserving the issue for the hearing judge. In his reasons for judgment delivered on 23 November 2007 (Clyde Group Incorporated v Minister for Primary Industries and Water [2007] TASSC 95), Blow J stated, at pars19 - 20:

"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.'

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."

25 He was entitled to do so. The appeal, as argued, was that the matter was patently clear cut in that a corporate body or person not in existence at the time of a decision could never be "a person aggrieved" within the meaning of the Judicial Review Act, s17. The appellant advanced cogent reasons why this should be the case, equating the position as equivalent to standing, citing cases such as Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46 FCR 38; Allan v Transurban City Link Ltd (2001) 208 CLR 167; Sharples v O'Shea [1999] QSC 190, as either authority or ones which ought be extinguished. It might be that ultimately the argument will be successful. But his Honour was entitled, consistent with General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, to consider that it was more appropriate for the issue to be determined by the hearing judge as a substantive matter. In recent cases, the High Court has warned against the practice of determining substantive matters through interlocutory proceedings. In their joint judgment in Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, Mason CJ, Dawson, Gaudron and McHugh JJ, restated, in relation to a limitation case, the undesirability of determining substantive issues through interlocutory proceedings, observing at 533:

"We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question."

26 Here, standing might depend on the facts or might impact on the joinder of other parties. In any event, dismissal of the originating application would not preclude Archer or Dennistoun Pty Ltd from filing a fresh application.

27 Here, the appellant seeks the dismissal of the originating application. Two parties, who or which, were in existence at the time of the decision, have been added to the application for judicial review. Doubtless the appellant will contend that dismissal of the respondent as a party will render void the originating application and deprive the remaining applicants of standing, a matter not argued before this Court.

28 There remains a possibility that the respondent can retain standing as the successor to the preceding unincorporated association, a matter not argued before the learned primary judge. That issue might be a matter of fact coming within the approach taken by Spender J in Queensland Newsagents Federation Ltd v Trade Practices Commission (supra). Those issues are not insignificant and, in my opinion, his Honour was entitled to reserve the matters to the hearing.

THE HONOURABLE DAVID LLEWELLYN AND THE RIVERS AND WATER SUPPLY COMMISSION v CLYDE GROUP INCORPORATED

30 On 12 September 2007 by an originating application, the respondent in this appeal, Clyde Group Incorporated ("the respondent"), sought a review, pursuant to the Judicial Review Act 2000 ("the Act"), s17, of a decision of the then Minister for Primary Industries and Water ("the Minister") made 17 October 2005, to adopt the Lakes Sorell and Crescent Water Management Plan and the River Clyde Water Management Plan ("the decision"). On 26 September 2007, the appellants in this appeal, the Minister and the Rivers and Water Supply Commission ("the appellants"), filed an interlocutory application by which they sought that the originating application be dismissed. The orders sought were as follows:

"1 That the Originating Application be dismissed, pursuant to s38(1)(a)(i) and/or s38(1)(b) and/or s38(1)(c) of the Judicial Review Act 2000, on account of the Applicant, Clyde Group Incorporated, having been incorporated on 14 March 2007, thereby not being a 'person aggrieved' by the decision which is the subject of the proceedings (namely that made on 17 October 2005 to adopt the amended Draft Plans which thereby became the Lakes Sorell and Crescent Water Management Plan and the River Clyde Water Management Plan).

2 That the Clyde Group Incorporated pay the costs of the Respondents of the Originating Application and this application."

31 The Act, s38(1)(a)(i), (b) and (c) provides as follows:

"(1) The Court may stay or dismiss an application under section 17, 18 or 19 or a claim for relief in such an application if the Court considers that -

(a) it would be inappropriate -

(i) for proceedings relating to the application or claim to be continued; or

(b) no reasonable basis for the application or claim is disclosed; or

(c) the application or claim is frivolous or vexatious; or ...".

32 In the circumstances, were the interlocutory application to be successful, the substantive proceedings would be at an end. The application was duly argued and, on 23 November 2007, the learned primary judge published his reasons and then dismissed the interlocutory application.

"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."

He then went on to deal with the question of the nature of the interest claimed and whether that interest was a "sufficient" one.

34 At pars19 and 20, his Honour determined how the application should ultimately be dealt with. He said:

"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.'

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."

35 On 29 November 2007, a notice of appeal was filed in respect of his Honour's decision on behalf of the appellants. The orders sought were as follows:

1.2 That in lieu thereof the Originating Application of the Respondent in proceeding 596 of 2007 be dismissed with costs.

1.3 That the costs of this Appeal be paid by the Respondent."

1 His Honour erred in law in construing the phrase 'a person who is aggrieved by a decision' in s17(1) of the Judicial Review Act in such a way as to encompass a person not in existence at the time the decision was made, when the proper construction of the phrase does not encompass such a person.

36 The only respondent named in the notice of appeal was the respondent. At the commencement of the hearing, counsel sought to have two further parties added as respondents to the appeal and for them to be heard. These were Dennistoun Pty Ltd and Anthony Archer. Those parties were added as applicants to the substantive proceedings by an interlocutory order made on 30 November 2007 and were not parties to the proceedings when the interlocutory application the subject of this appeal was heard and determined.. Counsel did not however pursue his application and no order was made joining these further parties to the appeal.

37 The only basis for the interlocutory application was that the respondent was not a person aggrieved because it was not incorporated at the time of the decision. The learned primary judge found against the appellants on that particular issue. That finding, in itself, could have resulted in the dismissal of the interlocutory application. However, the learned primary judge did not leave the matter there. Having made that finding and, as a consequence, left open to the respondent the possibility of its being a person aggrieved, he went on to consider whether it could be said to have a sufficient interest to be a person aggrieved. He then declined to make a finding as to that, determining that matter should best be left to the trial judge. It was as a consequence of that, that he dismissed the application. It was not made apparent on the hearing of this appeal why he went on to deal with the second issue at all.

38 It is the appellants' position that the learned primary judge's findings at par11 were erroneous, and that, had he found in their favour, he would have made the orders sought and dismissed the originating application.

"17 ¾ (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 that decision."

There is no dispute that the decision was a "decision to which this Act" applied. The Act, s7(1)(a), defines a "person aggrieved" as "a person whose interests are adversely affected by the decision". The Act, s29(1), further provides:

"If a person makes a decision to which this Part applies, a person who is entitled to make an application to the Court under section 17 relating to the decision may request the person to provide a written statement relating to the decision."

The Act, s30, deals with the response to such a request. It provides, inter alia, that the decision-maker may challenge the right of a person requesting a statement of reasons to have them. On a date in August 2007, the Minister supplied a statement of reasons to the respondent pursuant to the Act, s30(1). At no time did the Minister seek to challenge the entitlement of the respondent to have those reasons. He could have done so by giving notice that, in his view, the respondent was not entitled to such reasons, or by applying to the Court pursuant to the Act, s36, for a determination to that effect.

40 The Act, s23, sets out the time within which an application pursuant to s17 is to be made. That time is principally limited by reference to the date upon which a decision, or a statement of reasons given pursuant to a request under s29, is given to an applicant. Where a request is made, invariably the statement of reasons will come into being at a date well after the date of the decision to which it relates. There is no requirement in the Act for a statement of reasons to be sought within any particular time after a decision has been made. In effect, therefore, provided an application pursuant to s17 is made within the time limited after the statement of reasons is given, it is quite possible that application might be made a significant time after a decision is made.

41 There is nothing in the words of the Act, ss7(1) or 17(1), which specifically limits the right of a person to seek a review to that person being a person affected by a decision as at the date the decision was made (my emphasis).

42 The learned primary judge set out in pars5 - 11, his reasons for the impugned findings. He said:

"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).

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.

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.'

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.'

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.

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.

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."

43 Counsel for the appellants submitted that the learned primary judge did not properly construe the relevant portions of the Act and that he took from a particular case a proposition for which it was not authority. As to the first submission, with respect, I disagree. Counsel cited passages from Allan v Transurban City Link Ltd (2001) 208 CLR 167 and quoted passages from both Halsbury's Laws of Australia and Judicial Review of Administrative Action, 3rd ed. He then said:

"The point of the foregoing is to illustrate that whilst the Judicial Review Act is of general, ambulatory application, there is still a confinement of access to the Court. Standing is not open. A person must be 'aggrieved' and in turn that means that his or her 'interests' must be 'adversely affected' by the decision sought to be impugned."

He then submitted that there needed to be a degree of adverse affection of interests at the time of the relevant decision, as well as the institution of proceedings. However none of the material to which he referred unambiguously supported the proposition that the degree of affection must exist at both points in time. The terms of the Act, s23, as I have outlined, quite clearly envisage an application being made in relation to a decision, which is not restricted in time by the date of the decision itself. A decision itself may very well have immediate effect. However there is nothing in the Act which suggests that the adverse effects of it must necessarily be apparent to a defined class of persons as soon as it is made. The learned primary judge did not confine the term "person whose interest are adversely affected by the decision" in the manner suggested by counsel for the appellants. He simply did not interpret it as being restricted to a person whose interests were only affected as at the date of the decision.

44 As to the second matter raised by reference to Queensland Newsagents Federation Ltd v Trade Practices Commission (supra), counsel submitted that the learned primary judge, in effect, misinterpreted what this case was authority for. His Honour said at par9:

"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 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."

In that case, the court was dealing with the question, not of whether a person needed to be aggrieved at the date of a decision or the institution of proceedings, but whether an applicant's standing needed to continue to exist throughout the proceedings. In that context, the court did indeed determine as an aspect of its deliberations that the question needed to be determined at the date proceedings were initiated.

45 In the present case, what the learned primary judge did in the absence of direct authority, was interpret the provisions of the Act in a manner which would ensure that the purposes and objects of the Act would be promoted. He had regard in so doing to various decisions and the Act itself. To give effect to this, he determined that the question of whether a person was a "person aggrieved" would usually be determined by reference to the facts as they existed at the date proceedings were commenced. Nothing in what has been put by the appellants has persuaded me that view is wrong.

46 I would, in the circumstances, dismiss the appeal.

Llewellyn v Clyde Group Inc [2008] TASSC 25

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Judgment (100 paragraphs)

Llewellyn v Clyde Group Inc [2008] TASSC 25 (3 June 2008)

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Legislation Cited (2)

Cases Cited (7)