GIBBS C.J. The appellants, Lorraine Sandra Onus and Christina Isabel purpose of preventing the respondent, Alcoa of Australia Ltd. ("Alcoa"), from carrying out on land in its occupation works which it is claimed will interfere with aboriginal relics on that land. Such interference would, it is claimed, be a breach of s. 21 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vict.), as amended ("the Relics Act"). Section 2 of that Act contains the following definition:

"'Archaeological relic' or 'relic' includes a relic pertaining to the past occupation by the Aboriginal people of any part of Australia, whether or not the relic existed prior to the occupation of that part of Australia by people of European descent, and without affecting the generality of the foregoing, includes any Aboriginal deposit, carving, drawing, skeletal remains and anything belonging to the total body of material relating to that past Aboriginal occupation of Australia, but does not include a body or the remains of a body interred in a cemetery, burial ground or place of burial after the year 1834, or a handiwork made for the purpose of sale."

"A person who wilfully or negligently defaces or damages or otherwise interferes with a relic or carries out an act likely to endanger a relic shall be guilty of an offence against this Act."

By s. 28(2) of that Act a person who is guilty of an offence against the Act is liable to a penalty not exceeding a thousand dollars or to imprisonment for not more than three months or to both. The question for decision in the present appeal is whether the appellants have standing to maintain the action. (at p31)

2. Alcoa is a company which proposes to construct an aluminium smelter on land which it occupies at Portland in western Victoria. Alcoa is obliged to construct the smelter by an agreement made between that company and the State of Victoria on 2 September 1980. The agreement has been ratified, validated, approved and given the force of law by the Alcoa (Portland Aluminium Smelter) Act 1980 (Vict.) ("the Agreement Act"). However, the agreement is subject to certain conditions precedent, not all of which have yet been fulfilled. The land on which the smelter is to be built contains relics of the former aboriginal occupation of the area - particularly stone artefact scatters, i.e. stone tools and manufacturing debris, usually on the sites of former aboriginal workshops. Many of the scatters are in a very poor state of preservation. There seems no doubt that these scatters are "relics" within the Relics Act. The appellants, by their statement of claim, allege that Alcoa has wilfully interfered with the said relics in breach of the provisions of s. 21 of the Relics Act and that Alcoa threatens and intends further to interfere with the said relics over the whole or a substantial part of the said land by constructing industrial works thereon. They claim a declaration that the said relics are "relics" within the meaning of the Relics Act and an injunction restraining Alcoa, its servants, agents or contractors from carrying out any works upon the said land which would interfere with relics thereon. The appellants applied on summons to the Supreme Court of Victoria for an interlocutory injunction, and Alcoa similarly applied for an order that the action be dismissed or perpetually stayed on the ground that it was an abuse of the process of the Court and that it was frivolous and vexatious. The applications came before Brooking J. who held that the appellants had failed to make out a prima facie case either of a private right or of standing to sue to prevent a contravention of s. 21. He dismissed the appellants' application for an injunction, and on Alcoa's summons ordered that the action be dismissed. An application for leave to appeal against the order dismissing the action, and an appeal from the order refusing the interlocutory injunction, were refused by the Full Court of the Supreme Court. The present appeal is brought, by special leave, from that part of the order of the Full Court whereby the application for leave to appeal was dismissed. (at p31)

3. According to the statement of claim the appellants are descendants from inhabitants of Australia in prehistoric ages and members of the Gournditch-jmara aboriginal people and are custodians of relics of the Gournditch-jmara people according to their laws and customs. It is further alleged that the relics referred to in the statement of claim relate to the occupation of the land in question by the Gournditch-jmara aboriginal people and are relics of which the appellants are custodians according their laws and customs. It appears from the evidence that the Portland area was inhabited in prehistoric times by a group of aboriginal people known as the Gournditch-jmara people and that descendants of those people, who still live in and around Portland, form "a tightly knit ethnic community in the area". One of the appellants, Mrs. Onus, said in evidence that she had had an association with the relics on the land at Portland for about ten years. When asked what she had done in relation to the relics during that period, she replied:

"Well, that particular area where the smelter - not just where the smelter is going to be, but the land that Alcoa has purchased, has been land that my people have frequented. It is near land that has not been or is not frequented by other members of the community so much as the Gournditch Mara (sic) people. We have been free to more or less do what we like there: camp there, teach our children our culture, explain to them what different parts of the land are and how important different sites are on that area; we go fishing there, we go hunting there."

"Are the relics which are to be found at the sites there of significance in terms of the use which you have made of this area of land? . . . They are significant because they are part of our culture. It is an area that we well know because, as I have just stated, it is educational for our children.

. . .

So far as the sites of the relics, do they have any spiritual

significance to you? . . . The land as it stands is of spiritual significance to aboriginal people, that area particularly because we frequent it, and we are very much aware of what went on there with our people.

And is there any significance in the fact that these sites were sites where your ancestors lived in antiquity? . . . Very much so. It is a very deep thing with aboriginal people."

In cross-examination she said that all the descendants of the Gournditch-jmara people have a responsibility to ensure that any relics on the aboriginal sites, sacred or otherwise, are protected, and that all the members of the tribal group were just as much entitled to be custodians of the relics as were the appellants; the only thing that was special about the position of the appellants was that they were spokeswomen for the group. She was not cross-examined in an attempt to elicit information as to the nature of the laws and customs according to which she was one of the custodians of the relics, or to elaborate on the use made of the relics in or on the land. (at p33)

4. The first submission advanced on behalf of the appellants was that the Relics Act was passed for the benefit or protection of the aboriginal people as a class, and that any member of the class could sue to enforce the prohibitions contained in the Act, without the necessity of proving that special damage had been suffered or that a special interest existed. A consideration of the Relics Act shows that this argument cannot be sustained. The object of that Act, as its title shows, is to make provision for the preservation of archaeological and aboriginal relics. It is not clear that there are in Australia relics that can properly be described as archaeological that are not aboriginal, but since the definition of "relic" is not expressed to be exhaustive it may be suggested that the Act refers to relics other than aboriginal relics; it is not necessary to decide this question, but it may be assumed, in favour of the appellants' argument on this point, that the Act refers to aboriginal relics only. By s. 5 of the Act there is established a committee, called the Archaeological Relics Advisory Committee, whose functions are to consider and advise the Minister on all matters it thinks necessary in relation to archaeological relics and the preservation of those relics (s. 7). The Committee consists of twelve members. One, the Director of Conservation or his nominee, is the chairman, and -

"eleven shall be persons appointed by the Governor in Council -

(i) one being the Director of the National Museum of Victoria or his

(ii) one being a member of the National Trust of Australia (Victoria);

(iii) one being a member of the Archaeological and Anthropological Society

(iv) one being the Secretary for Lands or his nominee;

(v) one being a professional archaeologist from a Victorian university;

(vi) one being the Director of National Parks or his nominee;

(vii) one being the Chairman of the Forests Commission or his nominee;

(viii) one being a member of the Institute of Aboriginal Studies; and

(ix) three being Aborigines nominated by the Minister."

Counsel for the appellants attached some significance to the fact that three members of the Committee were required to be aborigines, but it hardly seems necessary to say that the fact that one-quarter of the members of this Advisory Committee are aborigines is no indication that the Act was passed for the benefit of a class comprising only aborigines. The composition of the Committee suggests that it was intended that a wide range of public interests should be reflected in its recommendations. By s. 9 the Governor in Council is empowered to appoint in an honorary capacity inspectors and wardens, who are given powers to enable them to assist in the administration and enforcement of the Act: see ss. 12-14, 31. The Relics Act provides that in certain circumstances land may be declared to be an archaeological area (s. 15(1)) but no such proclamation may be made without the consent, if the land is private land, of the owner and, if the owner is not the occupier, of the occupier (s. 15(2)). The consequences of proclaiming an archaeological area are that no person may be within the area without the permission of an authorized person (s. 17) and that all relics within the area shall be the property of the Crown and under the protection of the Crown (s. 20). The National Museum of Victoria is to be the official place of lodgment of relics which are the property of the Crown (s. 20A(1)). By s. 18(1) it is provided as follows:

"Notwithstanding anything to the contrary in this Act the Minister may compulsorily acquire any land other than land established as an aboriginal reserve and on which aborigines are living when he is informed by the Advisory Committee that there is a unique and irreplaceable relic on, in or under the land which is in danger of loss or damage, has notified the owner of the land in writing that he has been so informed, and has allowed time for an appeal to be lodged . . . . "

The Minister is given various powers for the purpose of preserving relics: ss. 22, 25, 26. A person who discovers a relic shall forthwith report the discovery to the Director or to an inspector or warden unless he has reasonable cause to believe that the relic is recorded in the register kept by the Director; when any relic is discovered in the course of any construction or excavation on any land, it shall be the duty of the person in charge of such construction or excavation to report the discovery to the Director, and the Director, if he considers the relic to be worthy of preservation, shall take whatever action is necessary (s. 23). A person is not guilty of an offence in picking up or collecting a portable relic exposed in or upon the surface of land, but a person who knowingly picks up or collects a portable relic must, inter alia, safeguard it from loss or damage and give notice to the Director (s. 27). It will be seen from these provisions that the enforcement of the Act has been entrusted to the ordinary agencies of government, assisted by inspectors and wardens, and not left to representatives of the aboriginal people. There is nothing in the Act that confers any special rights or duties on the aboriginal people or any class of them in relation to the relics which the Act intends shall be preserved. It is true that s. 18 exempts from compulsory acquisition any land established as an aboriginal reserve and on which aborigines are living, but this does not evince a recognition that aborigines have a special position in relation to relics on lands which are not established as aboriginal reserves, and even land which is an aboriginal reserve may be proclaimed an archaeological area under s. 15. The provisions of the Act as a whole show that the Act was passed for the benefit of the public at large, with a view to the conservation of relics which are regarded as being of interest and value not only to aborigines but also to archaeologists and anthropologists and indeed to Australians generally. It is quite impossible to hold that the Act confers any private rights on aborigines or any class of them. (at p35)

5. The case is therefore one in which two private citizens who cannot show that any right of their own has been infringed bring an action for the purpose of restraining another private citizen (Alcoa) from breaking the criminal law by acting in contravention of s. 21 of the Relics Act. The question is whether they have standing to bring the action. If an attempt were made to frame an ideal law governing the standing of a private person to sue for such a purpose, it would be necessary to give weight to conflicting considerations. On the one hand it may be thought that in a community which professes to live by the rule of law the courts should be open to anyone who genuinely seeks to prevent the law from being ignored or violated. On the other hand, if standing is accorded to any citizen to sue to prevent breaches of the law by another, there exists the possibility, not only that the processes of the law will be abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to very great cost and inconvenience in defending the legality of his actions. Moreover, ideal rules as to standing would not fail to take account of the fact that it is desirable, in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings. The principle which has been settled by the courts does attempt a reconciliation between these considerations. That principle was recently stated in Australian Conservation Foundation Inc. v. The Commonwealth (1980) 146 CLR 493 . 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 (1980) 146 CLR, at pp 530-531, 537, 547-548 . The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation. (at p36)

6. It seems to me that the appellants have an interest in the subject matter of the present action which is greater than that of other members of the public and indeed greater than that of other persons of aboriginal descent who are not members of the Gournditch-jmara people. The appellants, and other members of the Gournditchjmara people, would be more particularly affected than other members of the Australian community by the destruction of the relics. The appellants claim that, in common with other members of the Gournditch-jmara people, they are the custodians of the relics according to the laws and customs of those people. They claim that the relics are of cultural and spiritual importance to them, and that they have used the relics to teach their children the culture of their people. It is true that these allegations were, as Brooking J. described them, vague and general. One might be permitted to view some of them with a little scepticism. But counsel for Alcoa had the opportunity to cross-examine Mrs. Onus with a view to showing that there was no aboriginal law or custom which gave the appellants any rights or duties as custodians, and to establishing to what extent, if at all, the relics had been put to use. This opportunity was not taken. Counsel for Alcoa very properly informed us that he did not rely on the paucity of the appellants' evidence; quite rightly, he did not want the case to be decided on the ground that the evidence was insufficient to make out standing if it appeared that the appellants might have established that they had standing if further evidence had been produced. (at p36)

7. The main reason advanced in the Supreme Court for denying standing to the appellants was that their interest was entirely emotional and intellectual. Starke J. relied upon statements by members of this Court in Australian Conservation Foundation Inc. v. The Commonwealth, including the following passage from my own judgment in that case (1980) 146 CLR, at p 530 :

"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."

Mason J. (1980) 146 CLR, at p 548 agreed with the concluding sentence of this statement, and Stephen J. (1980) 146 CLR, at p 539 expressed a similar view when he said that "an individual does not suffer such damage as gives rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concern." Of course, a special interest is none the less sufficient if it is accompanied by an emotional or intellectual concern. The present is not a case in which a plaintiff sues in an attempt to give effect to his beliefs or opinions on a matter which does not affect him personally except in so far as he holds beliefs or opinions about it. The appellants claim not only that their relics have a cultural and spiritual significance, but that they are custodians of them according to the laws and customs of their people, and that they actually use them. The position of a small community of aboriginal people of a particular group living in a particular area which that group has traditionally occupied, and which claims an interest in relics of their ancestors found in that area, is very different indeed from that of a diverse group of white Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian. Counsel for Alcoa sought to meet the claim that the appellants and the other members of the Gournditch-jmara community put the relics to actual use by submitting that no relief could be given to them which would enable them to continue to use the relics. Alcoa, he said, has the right to occupy, and indeed owns, the land; the appellants have no right to resort to the land and therefore could gain no advantage from success in the present action. There is therefore, he submitted, no sufficient relationship between the facts relied on as giving standing and the relief sought in the action. With all respect this argument, although plausible, is unconvincing. If the relics are preserved, the appellants will at least have a possible opportunity to have access to them. If the relics are portable, no difficulty will arise in that respect. Even if it is right to conclude that it is the relics in and on the ground that have their special value for the appellants, it cannot be assumed that if the relics are not destroyed the appellants will be denied access to them. It is common experience that in places all over the world interested members of the public are afforded an opportunity to obtain access to relics of historical interest, including ancient buildings, notwithstanding that they are situated on private property. There is no evidence, and it cannot be assumed, that such an opportunity would be denied to the Gournditch-jmara people. On the other hand, if the relics are damaged or destroyed, there will be no possibility that the Gournditch-jmara people will be able to make use of them; they will suffer an immediate and permanent disadvantage. In any case, once the appellants show that they have a sufficient interest, they do not lose standing to bring an action because the only remedy which they may obtain may afford less than complete relief. (at p38)

8. It is unfortunate that the question of the appellants' standing was determined as a preliminary issue in the present case, particularly on such scanty material. To say that is of course no criticism of the learned primary judge who had to deal with Alcoa's application. The question whether a plaintiff has standing to bring an action is one that logically arises before the question whether he is entitled to succeed in the action. However, as I pointed out in Robinson v. Western Australian Museum (1977) 138 CLR 283, at p 302 , the court has a discretion whether or not it should determine the question whether the plaintiff has a sufficient interest to bring the proceedings before it proceeds to determine the merits of the case. It is obvious that there are considerable obstacles in the way of the appellants' success in the present case. The question whether the work of construction proposed by Alcoa would amount to a breach of s. 21 is itself one which is likely to raise controverted issues of fact and law. Moreover, once the conditions precedent specified in the agreement scheduled to the Agreement Act have been fulfilled it will be a serious question whether that Act does not pro tanto override the provisions of the Relics Act and permit, and indeed require, Alcoa to proceed with the necessary work even if it would otherwise have amounted to a contravention of s.21 of the Relics Act. These questions, however, cannot be decided at the present stage of the proceedings. We are not called upon to consider whether we should exercise a discretion to allow the appellants to proceed. The question for our decision is whether it was right to hold that they lacked standing to bring the action and for that reason to dismiss the action. For the reasons given, in my opinion it should be held that no case for a dismissal or stay of the action has been made out. (at p39)

9. I would allow the appeal, and order that Alcoa's application for a dismissal or perpetual stay of the action be refused. I would remit the action to the Supreme Court of Victoria for further hearing and determination. (at p39)

STEPHEN J. The facts of this case appear in other judgments. The sole issue for this Court is the standing of the appellants to bring their proceedings. They support standing upon two grounds, the first of which relies upon the terms of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vict.), as amended. (at p39)

2. That Act does not, in express terms, confer upon the appellants any standing. However, it was argued that an examination of its provisions discloses that it was enacted primarily for the benefit of the aboriginal population of Victoria, viewed as a class; that it seeks to preserve for aborigines their ancestral relics. This, it was said, suffices to confer standing upon the appellants, as Victorian aborigines, to seek injunctive relief so as to prevent threatened relics. (at p39)

3. I do not regard the Act in that light. Its long title seems to me aptly and fully to describe its nature: it is "An Act to make Provision for the Preservation of Archaeological and Aboriginal Relics". Thus its concern is with remains of the past generally, not merely with aboriginal remains, and I think that it seeks to preserve them in the interests of the Victorian community generally and not of any sub-group within that community. The terms of the Act show this to be so. It approaches the task of preservation by providing for archaeological areas (s. 15), which persons may not enter without prior permission (s. 17); all relics within such areas are the property of the Crown and under its protection (s. 20). The National Museum of Victoria is made the official place of lodgment of such relics (s. 20A(1)). All portable relics the property of the Crown are to be entrusted to the care of the Director of the Museum and to be lodged in the Museum unless the Minister otherwise determines (s. 20A(2)). By s. 10 the Director of Conservation is empowered to arrange for the construction in archaeological areas of buildings and of roads or trails "to accommodate the public or to facilitate administration" and is required to "develop an educational programme and service for the purpose of making available to the public facts and information" about relics and about archaeological areas (emphasis added). (at p39)

4. The Act of course provides for much else, none of it, however, suggesting that relics are to be preserved in the interests of any particular class. The above provisions, on the other hand, disclose a legislative concern in their preservation for the benefit of the community at large and are largely inconsistent with their preservation especially for the benefit of the aboriginal community. (at p40)

5. There is nothing in the substantive provisions of the Act which would confine relics or archaeological areas to those connected with aboriginal occupation of the country. It was contended that the definition section of the Act, s. 2, had this effect. It defines "archaeological relic" or "relic" as follows:

"'Archaeological relic' or 'relic' includes a relic pertaining to the past occupation by the Aboriginal people of any part of Australia, whether or not the relic existed prior to the occupation of that part of Australia by people of European descent, and without affecting the generality of the foregoing, includes any Aboriginal deposit, carving, drawing, skeletal remains and anything belonging to the total body of material relating to that past Aboriginal occupation of Australia, but does not include a body or the remains of a body interred in a cemetery, burial ground or place of burial after the year 1834, or a handiwork made for the purpose of sale".

Unlike all but two of the other thirteen definitions, in s. 2, those of "Sale" and of "This Act", this definition takes the inclusive, not the exclusive, form. In those other two cases it is clear enough why the inclusive form is used: an enlarged meaning is thereby given to "sale" while its ordinary meaning is left unaffected; likewise with the definition of "This Act", which speaks for itself: it reads "'This Act' includes the regulations". The third occasion for the use of the inclusive form of definition, in the definition of "archaeological relic" or "relic", seems no less deliberate; it ensures that, despite the lack of antiquity of those aboriginal relics which have come into existence since European settlement, they too will qualify as relics. It also removes any doubts that might exist concerning the full reach of "relics" according to popular usage; the defined meaning will extend to aboriginal middens and skeletal remains as well as to artefacts and the like. So understood, this inclusive form of definition in no way confines "relics" to those that are aboriginal. Present knowledge of course suggests that, apart from the few known relics left behind by Indonesian fishermen and by early European explorers, archaeological remains in this country pre-dating white settlement will all be aboriginal. But this is only a reflection of the past isolation of this continent, a circumstance which makes no less real the interest of Australian legislatures in the preservation of such remains for the benefit of the entire present-day Australian community. (at p40)

6. The appellants also placed some reliance upon the terms of s. 18(1) and upon the particular constitution of the Archaeological Relics Advisory Committee which the Act creates. As to each of these submissions I have nothing to add to what is said in the judgments of the Chief Justice and of Wilson J. It follows that I agree with their conclusion that the provisions of the Act cannot be relied upon by the appellants as supporting standing to sue. (at p41)

7. For their second ground of standing the appellants rely upon what was said by Buckley J. in Boyce v. Paddington Borough Council (1903) 1 Ch 109 , as recently expanded and applied by members of this Court and especially by Gibbs J., in Australian Conservation Foundation Inc. v. The Commonwealth (1980) 146 CLR 493 : the appellants claim to have a "special interest in the subject matter of the action" - see per Gibbs J. in the A.C.F. Case (1980) 146 CLR, at p 527 . I regard that ground of standing as having been made out by the evidence in this case, sparse though it is at this stage. That evidence has been reviewed in other judgments and I agree with the conclusion in this regard arrived at by the Chief Justice and by Wilson J. (at p41)

8. In saying this I wish to add three observations. First, whatever may be thought to be the need for development in this area of the law, the present appeal provides no occasion for it. In this case the contentions of the parties call for no reconsideration of the present law: the appellants need invoke no new principle in order to establish their right to sue; the respondent urges no new principle but instead contends that the application of existing law supports its denial of the appellants' standing to sue. Moreover it may be that any general development of the law relating to standing to sue should be left to legislative action, prompted by law reform agencies. Any significant changes will necessarily involve the weighing of important considerations of policy; different solutions may be appropriate in different areas of the law or where the remedies sought by plaintiffs differ; there exists considerable diversity in the recommendations which have emerged to date from agencies in the common law world regarding desirable reforms. All this points towards deliberate legislative action rather than judicial innovation. (at p41)

9. Having said this I should say that I do not regard the existing state of the law to be that the possession of intellectual or emotional concern is any disqualification from standing to sue. On the contrary, it will be but rarely that a person having a special interest in the subject matter of the action which he has instituted does not also possess at least a strong intellectual and perhaps also a strong emotional concern with that subject matter. What is more, the absence of mere material interest in that subject matter, in the sense of property or possessory rights, will not, as the law now stands, be in itself any bar to standing; this the present case attests. (at p42)

10. Thirdly, the distinction between this case and the A.C.F. Case is not to be found in any ready rule of thumb, capable of mechanical application; the criterion of "special interest" supplies no such rule. As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter. The present appellants are members of a small community of aboriginal people very long associated with the Portland area; the endangered relics are relics of their ancestors' occupation of that area and possess for their community great cultural and spiritual significance. While Europeans may have cultural difficulty in fully comprehending that significance, the importance of the relics to the appellants and their intimate relationship to the relics readily finds curial acceptance. It is to be distinguished, I think, and will be perceived by courts as different in degree, both in terms of weight and, in particular, in terms of proximity, from that concern which a body of conservationists, however sincere, feels for the environment and its protection. Courts necessarily reflect community values and beliefs, according greater weight to, and perceiving a closer proximity to a plaintiff in the case of, some subject matters than others. The outcome of doing so, however rationalized, will, when no tangible proprietary or possessory rights are in question, tend to be determinative of whether or not such a special interest exists as will be found standing to sue. (at p42)

11. The recent decision of their Lordships in Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) (1982) AC 173 was given some time after the hearing of argument in this case. Although that decision refers to Boyce v. Paddington (1903) Ch 109 , it seems to me to decide nothing about the meaning and application of the passage from the judgment of Buckley J. which was expanded and applied by this Court in the A.C.F. Case, the passage in which his Lordship spoke of special damage peculiar to the plaintiff. As Lord Diplock pointed out (1982) AC, at p 186 , the meaning and application of that passage will only arise if there has first been created by the statute in question "a legal right to be enjoyed by all of Her Majesty's subjects who wish to avail themselves of it". As his Lordship went on to say, the legislation enforcing the sanctions orders there in question created no legal right but, on the contrary, withdrew a previously existing right. Accordingly his Lordship never came to consider what might be involved in Buckley J.'s concept of special damage peculiar to the plaintiff: this may explain how it is that Lord Diplock in describing that concept (36) did so by reference to two rather different phrases, first that employed by Brett J. in Benjamin v. Storr (1874) LR 9 CP 400 and secondly that used by Buckley J. almost thirty years later. (at p43)

12. I would allow this appeal, refuse the respondent's application for dismissal or stay of the action and remit the action to the Supreme Court of Victoria. (at p43)

MASON J. As other members of the Court have shown, this case is clearly distinguishable from Australian Conservation Foundation Inc. v. The Commonwealth (1980) 146 CLR 493 . The relics here have great cultural and spiritual significance for the Gournditch-jmara community. The members of that community are the guardians of the relics according to their laws and customs and they use the relics. I agree with Gibbs C.J. in thinking that in these circumstances the appellants have a special interest in the preservation of the relics, sufficient to support locus standi. (at p43)

2. I would allow the appeal, and order that Alcoa's application for a dismissal or perpetual stay of the action be refused. I would remit the action to the Supreme Court of Victoria for further hearing and determination. (at p43)

MURPHY J. The appellants, members of the Gournditch-jmara Aboriginal people, sought orders in the Supreme Court of Victoria against the respondent based on s. 21 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vict.). (at p43)

2. The only issue in this appeal is whether the appellants have standing to bring their claim against the respondents. The Law Reform Commission defines "standing" as "the legal entitlement of a person to invoke the jurisdiction of the court in a particular case" (Discussion Paper No. 4, "Access to the Courts - I Standing: Public Interest Suits"). Standing focuses on the parties seeking to get their complaint before the court, not on the issues they wish to have the court consider (Flast v. Cohen [1968] USSC 133; (1968) 392 US 83, at p 99 (20 Law Ed 2d 947, at p 961) ). Denial of standing does not deny merit in a plaintiff's legal claims but denies the plaintiff the right to have those claims adjudicated. (at p44)

3. Standing is a judicial invention. In Baker v. Carr [1962] USSC 48; (1962) 369 US 186, at p 204 (7 Law Ed 2d 663, at p 678) , the court considered that "the gist of the question of standing" is whether the plaintiff has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions". The test is not limited to constitutional cases. In Australian Conservation Foundation Inc. v. The Commonwealth (1980) 146 CLR, at pp 528-529 Gibbs J. stated that "the broad test of special interest" in the subject matter of the action is the proper one to apply in Australia and that this appears to be similar to the test adopted in the United States. (at p44)

4. It is sufficient for standing that a plaintiff have an interest exceeding that of members of the public generally in preventing breach of a public right or in securing the performance of a public duty. The interest need not be peculiar to the plaintiff. It is enough that the plaintiff's interest, even if many others also have it, is not the same as that of members of the public generally. A legal interest is not necessary to establish standing; it need not be proprietary; a cultural or other interest may suffice. (at p44)

5. Standing in the sense of a special interest in the plaintiff over that of members of the public generally does not seem to be necessary for the exercise of judicial power. There are numerous unquestioned examples of exercise of judicial power at the instance of persons with no such interest, for example private criminal prosecutors, strangers in applications for writs of prohibition. (at p44)

6. In practice, questions of standing are often brushed aside if a court considers that the issue of substance should in the public interest be settled, particularly if it seems clear that the plaintiff will lose on the merits. Often, however, where a plaintiff seeks to have litigated an issue which is awkward because it questions dominant social institutions or relationships, standing looms large. (at p44)

7. Restrictive rules of standing deny access to justice. (See The Law Reform Commission, "Standing: Public Interest Suits.") In other cases I have expressed the belief that the court should adopt a liberal view on standing and that several objections to allowing citizens wide access to the courts have no merit (see Robinson v. Western Australian Museum (1977) 138 CLR 283 ; Victoria v. The Commonwealth and Hayden [1975] HCA 52; (1975) 134 CLR 338 (the A.A.P. Case); Australian Conservation Foundation v. The Commonwealth (1980) 146 CLR 493 ; Attorney-General (Vict.); Ex rel. Black v. The Commonwealth [1981] HCA 2; (1981) 146 CLR 559 ("the D.O.G.S. Case")). (at p45)

8. The Archaeological and Aboriginal Relics Preservation Act 1972 is "An Act to make provision for the Preservation of Archaeological and Aboriginal Relics". "Archaeological relic" or "relic" is defined to include "a relic pertaining to the past occupation by the Aboriginal people of any part of Australia . . . " (s. 2). Section 21 of the Act provides:

"A person who wilfully or negligently defaces or damages or otherwise interferes with a relic or carries out an act likely to endanger a relic shall be guilty of an offence against this Act." (at p45)

9. The Gournditch-jmara aboriginal people were the traditional inhabitants of the area which includes the site on which the respondents plan to build an aluminium smelter; the site contains many relics within the meaning of the Act. The relics are those of the appellants' ancestors and thus have special significance for them. Also in their culture they are custodians of the relics. The appellants allege that the respondent has wilfully interfered with relics on the construction site and unless restrained will interfere with other relics on the site. For the purposes of this appeal the assumption should be made that the conduct sought to be restrained is unlawful. The appellants have a special interest in the enforcement of the Act and the preservation of their ancestors' relics. This is a special interest sufficient for standing. (at p45)

10. In the Supreme Court of Victoria both Brooking J. and the Full Court (Starke, Kaye and Jenkinson JJ.) denied the appellants standing. They considered that the relationship of descent which gave to the relics their significance for the appellants was not enough to invest the beliefs and concerns which each appellant has about those material objects with a value which came within the test of "a special interest in the subject matter of the action". Jenkinson J. stated that "some human biological relationships have grave legal consequences of general kinds, because of the fundamental importance of those relationships in Western European Judeo-Christian culture. But the descent of the appellants from those whose relics lie at Portland is not in my opinion such a relationship as a court administering the common law can, without legislative direction or encouragement, regard as conferring that special interest." The respondent relied on those statements in this Court. (at p45)

11. Interests sufficient to found standing are not confined to those which arise out of relationships which are fundamentally important in what was described as "Western European Judeo-Christian culture". Australia is a nation composed of peoples deriving from a variety of cultures, which are not restricted to Western European. Our people also adhere to a variety of religions many of which are not "Judeo-Christian", and many have no religion. "Western European Judeo-Christian culture", if there is such a culture, has no privileged status in our courts. Aboriginal culture is entitled to just as much recognition. If a cultural or religious interest founded on "Judeo-Christian Western-European" traditions is enough to establish standing, then a cultural or religious interest founded on aboriginal tradition is also enough. There is no justification for using "standing" to introduce religious, racial or cultural discrimination to the courts. (at p46)

12. The appellants have standing and the appeal should be allowed. (at p46)

AICKIN J. This is an appeal by special leave from a decision of the Full Court of the Supreme Court of Victoria which upheld the decision of Brooking J. that the appellants' application for an interlocutory in injunction restraining the respondent (Alcoa), its servants and agents from interfering with any "relics" as defined by the Archaeological and Aboriginal Relics Preservation Act 1972 (Vict.), as amended ("the Act") on the respondent's land be dismissed and in which he also ordered that the action be struck out on the ground that the appellants lacked locus standi and any private right in relation to the subject matter of the proceedings. The Act is entitled "An Act to make Provision for the Preservation of Archaeological and Aboriginal Relics". (at p46)

2. On the hearing of the appeal in this Court the only matter dealt with was the standing of the plaintiffs to maintain the proceedings, there being no appeal from the dismissal of the application for an interlocutory injunction. (at p46)

3. Because the application for an interlocutory injunction in the Supreme Court was heard at the same time as the application to strike out the statement of claim and dismiss the action, the question of the locus standi of the appellants was dealt with not simply upon the basis of the statement of claim (to which I refer below) but in the light of such facts as were given in evidence in support of the application for an interlocutory injunction, both on affidavit and orally, which threw some additional light on the factual position. The additional matters are set out in the judgment of Starke J. in the Full Court of the Supreme Court as well as in the judgment of Brooking J. It is however not necessary to set them out in any detail. The plaintiffs alleged that they are descendants of the inhabitants of Australia in prehistoric times and are members of the Gournditch-jmara aboriginal people who had formerly lived in what is now the Portland area in Victoria. They said that they and all other members of that tribe are custodians of the relics of those aboriginal people according to their laws and customs. They alleged that land in the vicinity of Portland occupied by the defendant contains numerous "relics" within the meaning of the Act and that such relics relate to the occupation of the land by the Gournditch-jmara people. They further alleged that contrary to the provisions of s. 21 of the Act the respondent has wilfully interfered with the relics and that it threatens and intends to interfere with the relics by constructing industrial works on the land. It was said in evidence that the relics were of significance to the plaintiffs "because they are part of our culture. It is an area that we well know because, as I have just stated, it is educational for our children." It was not alleged that the relics were sacred in any sense of the term but that they were relics within the meaning of the Act and included debris resulting from the making of stone artefacts as well as stone tools and shell middens. It was also said by the plaintiffs that they and other members of the tribe used the land, or had used the land, for teaching their children "our culture" in the course of camping on the land and fishing and hunting. (at p47)

4. It does not clearly appear at what period of time this use took place and what was the condition or ownership of the land during the time that the individual plaintiffs used it in that manner. It does not appear whether the land was used for agricultural or pastoral purposes, but it was described in evidence as being covered with thick scrub. It appears from the agreement set out in the schedule to the Alcoa (Portland Aluminium Smelter) Act 1980 (Vict.) that some of it was Crown land, including land surrendered or to be surrendered to the Crown by the Portland Harbor Trust Commissioners, and that the State undertook to sell such land to Alcoa. Under that agreement the State undertook to procure the closing of various roads and to sell to Alcoa the land on which such roads were constructed or set out and to facilitate the undertaking of various works by Alcoa. (at p47)

5. The Alcoa (Portland Aluminium Smelter) Act ratified an agreement dated 2 September 1980 made between the State of Victoria and Alcoa. Under that agreement Alcoa agreed to construct an aluminium smelter and to use its best endeavours to commence continuous production at such smelter by a specified date and to ensure that necessary additional housing for employees of the company was made available. The State assumed a large number of miscellaneous obligations under cl. 5 of Div. B of Pt II of the agreement, which included the granting of industrial development leases, selling land to Alcoa and ensuring that various permits and licences under various Acts would be granted for the construction and use of pipelines, conveyor belts, construction and loading facilities. Notwithstanding the date of the agreement and the fact that the Alcoa (Portland Aluminium Smelter) Act has come into operation, cl. 3 of Pt I of the agreement scheduled to that Act provides that the Part of the agreement which sets out the obligations of Alcoa and of the State shall not come into operation until the first day of the month following the date upon which the last of a number of specified events occurs. We were informed in the course of the hearing that as at that day three of the nine conditions precedent had not yet been satisfied, namely, the making of specified agreements with governmental authorities. It appeared from the material before the trial judge that notwithstanding that these events had not yet occurred work on the site had commenced. (at p48)

6. The term "Aborigine" is defined in s. 2 of the Act as meaning "inhabitant of Australia in pre-historic ages or a descendant from any such person". The term "Archaeological relic" or "relic" is defined to include "a relic pertaining to the past occupation by the Aboriginal people of any part of Australia, whether or not the relic existed prior to the occupation of that part of Australia by people of European descent, and without affecting the generality of the foregoing, includes any Aboriginal deposit, carving, drawing, skeletal remains and anything belonging to the total body of material relating to that past Aboriginal occupation of Australia, but does not include a body or the remains of a body interred in a cemetery, burial ground or place of burial after the year 1834, or a handiwork made for the purpose of sale". (at p48)

"A person who wilfully or negligently defaces or damages or otherwise interferes with a relic or carries out an act likely to endanger a relic shall be guilty of an offence against this Act." (at p48)

8. It was argued on behalf of the appellants that they had locus standi to maintain their proceedings against Alcoa on two separate bases. The first submission was that the Act was one for the benefit of Aborigines as a class and that it gave to every member of that class a private right sufficient to enable him or her to maintain an action directed to the preservation of relics, either relics generally or relics connected with his own tribal ancestors. It was not altogether clear which proposition was being put forward. It is however of no present significance because it is in my opinion clear that neither proposition could be maintained. Wilson J. in his reasons for judgment deals with this matter and I cannot usefully add to what he has said or the reasons which he has given for regarding this submission as untenable. (at p49)

9. The second submission was that the appellants had a special interest as members of the Gournditch-jmara people in the relics of their own ancestors and in particular in those which may be on or in the smelter site. It was submitted that this interest was more than a mere intellectual or emotional interest and was thus in a different category from the interest dealt with by the Full Court in Australian Conservation Foundation Inc. v. The Commonwealth (1980) 146 CLR 493 ("the A.C.F. Case"). That case is the most recent decision of this Court dealing with the nature of an interest sufficient to support proceedings which are directed to the enforcement not of private rights but of public rights by persons other than the Attorney-General or those to whom he has granted his fiat to commence proceedings in his name. The history of the development of this branch of the law in Australia, England, Canada and the United States is examined in the judgments in that case and also in the earlier case of Robinson v. Western Australian Museum (1977) 138 CLR 283 . I refer to those cases below. (at p49)

10. The classic formulation of the relevant principle is that of Buckley J. in Boyce v. Paddington Borough Council (1903) 1 Ch 109, at p 114 :

"A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right." (at p49)

11. Buckley J. referred to a number of cases dealing with public nuisance and applied the rule laid down in those cases to the case before him, i.e., one of a threatened breach of a statute. The cases to which he referred show that it had long been settled that, for an individual plaintiff to sue in respect of public nuisance, he must, in the words of Kelly C.B. in Winterbottom v. Lord Derby (1867) LR 2 Ex 316, at p 320 , show "a particular damage suffered by himself over and above that suffered by all the Queen's subjects" or "some damage peculiar to himself, his trade, or calling" (1867) LR 2 Ex, at p 322 . The Court of Appeal (1903) 2 Ch 556 were disposed to regard the Attorney-General as a necessary party and adjourned the hearing to enable the plaintiff to communicate with him. He consented to be joined as an additional plaintiff and the appeal proceeded on that basis. There was an appeal to the House of Lords (1906) AC 1 but, as the Attorney-General was then a party, no question of standing arose. Notwithstanding the doubts of the Court of Appeal the decision of Buckley J. has been treated as stating the correct principles for determining the standing of a plaintiff, at least until very recently. (at p50)

12. I do not consider that the principle stated by Buckley J. conveyed or was intended to convey that the damage suffered by the plaintiff must be unique. The proper distinction is that drawn in one of the public nuisance cases which he cited, i.e., Benjamin v. Storr (1874) LR 9 CP 400, at p 407 , where Brett J. said:

"Winterbottom v. Lord Derby (1867) LR 2 Ex 316 was decided upon the same ground; the plaintiff failed because he was unable to show that he had sustained any injury other and different from that which was common to all the rest of the public."

The same view had been expressed by Pollock C.B. in Chamberlaine v. Chester and Birkenhead Railway Co. (1848) 18 LJ (Ex) 494, at p 496 where he said:

"Where a statute prohibits the doing of a particular act affecting the public no person has a right of action against another merely because he has done the prohibited act. It is incumbent on the party complaining to allege and prove that the doing of the act prohibited has caused him some special damage, - some peculiar injury beyond that which he may be supposed to sustain in common with the rest of the Queen's subjects by an infringement of the law. But where the act prohibited is obviously prohibited for the protection of a particular party, there it is not necessary to allege special damage."

It is entirely consistent with those statements of principle that more than one person may suffer "special damage" from the same public nuisance or the same breach of a statutory provision. This view seems to me to run through all the cases subsequent to Boyce's Case. (at p50)

13. The principle as formulated by Buckley J. was approved by the House of Lords in London Passenger Transport Board v. Moscrop (1942) AC 332 . See per Viscount Maugham (1942) AC, at p 345 where he said:

"What special interest has the respondent to enable him to bring this action? We are not here concerned with anything but his civil right, if any, under the section. I think it plain that there has been no interference with any private right of his, nor has he suffered special damage peculiar to himself from the alleged breach of the general prohibition as to certain acts directed to local or public authorities contained in s. 6: see Boyce v. Paddington Borough Council (1903) 1 Ch, at p 114 , and cases there cited. He, therefore, could not sue without joining the Attorney-General."

In my opinion, his Lordship there used the term "special interest" in the sense of the two bases upon which the respondent might have maintained his action, i.e., interference with a "private right" or "special damage peculiar to himself". With due respect I am unable to agree with the observation of Gibbs J. in the A.C.F. Case (1980) 146 CLR, at p 527 that Viscount Maugham regarded the expression "special damage peculiar to himself" as equivalent to "having a special interest in the subject matter of the action". The sense in which his Lordship used that term appears from the balance of the passage quoted above, which reproduces the two bases stated by Buckley J. In my opinion he used it as embracing those two categories. (at p51)

14. That however does not mean that the law has not developed since 1942 but I cannot regard the developments as having begun in that decision of the House of Lords or at any time prior thereto. (at p51)

15. I turn now to Robinson v. Western Australian Museum. In that case Barwick C.J. said (1977) 138 CLR, at p 292 : "It is sufficient for present purposes that he has claimed to be entitled either to salvage or compensation". (at p51)

"At the outset there arises the question whether the plaintiff has standing to challenge the validity of the legislation. The defendant contends that the plaintiff is in no different position from any other member of the public, and has no sufficient interest in the determination of the questions raised by his pleadings. The plaintiff asserts that he has a special interest of a two-fold kind: the statutes, if valid, deny his right, as finder or salvor, to the possession of the wreck, and destroy his claim to reimbursement of salvage expenses. In my opinion the plaintiff had a special interest of another kind in challenging the validity of the legislation. He had worked on the wreck, and had recovered things of value from it, and was prevented by the operation of the statutes from continuing to do so. In other words the statutes prevented him from carrying on the activity in which he had been engaged and thereby caused him possible pecuniary detriment; they interfered with what was for him his trade or business. This is enough to entitle him to challenge the validity of the legislation in so far as it prevents him from continuing his former activities: Attorney-General (N.S.W.) v. Brewery Employes Union of N.S.W. [1908] HCA 94; (1908) 6 CLR 469, at pp 491, 497-498, 519-520, 549 and British Medical Association v. The Commonwealth [1949] HCA 44; (1949) 79 CLR 201, at pp 257-258 ."

See also per Mason J. at pp. 327-329, esp. at pp. 327-328, where, speaking of claims for a declaration of the invalidity of a statute, he said:

"Reflection on the considerations which underlie the rule do not provide much assistance in defining the nature of the interest which a plaintiff must possess in order to have locus standi. However, it does indicate that the plaintiff must be able to show that he will derive some benefit or advantage over and above that to be derived by the ordinary citizen if the litigation ends in his favour. The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another. Here the plaintiff does not seek performance of a public duty; nor does he assert that he will suffer special damage through interference with a public right - cases which are notorious for their difficulties. Here the legislation, if it is valid, deprives the plaintiff of a right of reimbursement which he would otherwise have or be entitled to claim. It also imposes obligations upon him to which he would not otherwise be subject. This is enought to support locus standi in an action for a declaration of invalidity."

See also per Jacobs J., at p. 340, and per Murphy J., at pp. 344-345, where he took a somewhat different view, but arrived at the same result. (at p52)

17. In the A.C.F. Case Gibbs J. referred to the decision of Buckley J. and said (1980) 146 CLR, at p 527 : "However, the expression 'special damage peculiar to himself' in my opinion should be regarded as equivalent in meaning to 'having a special interest in the subject matter of the action'." I have referred above to this view which, with respect, I cannot regard as expressed in Moscrop's Case, but Gibbs J. also relied on Gouriet v. Union of Post Office Workers [1977] UKHL 5; (1978) AC 435 to which I refer below. In addition he examined the Canadian and United States decisions and I do not need to go over that ground again. I do not think that particular assistance can be obtained from those decisions for present purposes. Gibbs J. rejected the contention that it is sufficient to have an intellectual or emotional concern about the alleged breach of a public duty and said (1980) 146 CLR, at pp 530-531 :

"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."

I respectfully agree with those observations. (at p53)

18. Stephen J., after quoting the passage from the judgment of Buckley J. which I have set out above, said (1980) 146 CLR, at p 538 :

"It is his Lordship's second limb which is of significance in the present case. It deals with those cases in which 'no private right is interfered with'. In such cases, according to his Lordship, a private plaintiff has standing only if he suffers 'special damage peculiar to himself from the interference with the public right'. The private remedy arises because of infringement of the public right but is dependent upon the suffering of special damage peculiar to the plaintiff. The principle stated in Boyce's Case was approved and relied upon by Viscount Maugham in London Passenger Transport Board v. Moscrop (1942) AC, at p 345 and the general rule concerning the enforcement of public rights has very recently been restated by their Lordships in Gouriet v. Union of Post Office Workers. There Lord Wilberforce said (1978) AC, at p 477 , that 'in general no private person has the right of representing the public in the assertion of public rights. If he tries to do so his action can be struck out'. It is to this general rule that Boyce's Case states the exception, dependent upon special damage suffered by an individual. Lord Wilberforce refers to this (1978) AC, at p 483 , as does Viscount Dilhorne (1978) AC, at p 494 , Lord Edmund-Davies (1978) AC, at pp 506, 513 and Lord Fraser of Tullybelton (1978) AC, at p 518 ."

"An individual does not suffer such damage as gives rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concern. That it is a body corporate rather than an individual which seeks to do so cannot of itself alter that position; the fact that that body corporate has as its main object the voicing, and encouragement in the community, of just such a concern no doubt ensures that what it does to give effect to such an object will not be ultra vires; it will not otherwise improve its position. To say this is not merely narrowly to rely upon the precise limits to standing suggested by what was said by Buckley J. in Boyce's Case. Let it be assumed that the damage need be no more than apprehended, that it need not be damage to a property right recognized by the law and that it need not be so peculiar to the would-be plaintiff that no-one else suffers it. Even so, the appellant clearly enough fails to establish standing to sue on the basis of damage suffered by itself. For it to succeed upon this particular ground the law must be that any person with genuinely held convictions upon a topic of public concern thereby acquires standing to enforce a public right to breach of which it takes exception. That is not the current state of the law. To hold otherwise would be radically to alter the existing law as it now stands."

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

Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests (as to which see New South Wales Fish Authority v. Phillips (1970) 1 NSWR 725 ) and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v. Western Australian Museum (1977) 138 CLR, at pp 327-328 : 'The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another.'"

19. In Gouriet's Case Lord Wilberforce said (1978) AC, at pp 483-484 :

"On the other hand, the case in this House of London Passenger Transport Board v. Moscrop (1942) AC 332 is clear and strong authority that where there is no interference with a private right and no personal damage, declaratory relief cannot be sought without joining the Attorney-General as a party (s.c. as relator) - see pp. 344-345 per Viscount Maugham. In my opinion the law is clear, and rightly so, that only the Attorney-General - either ex officio or ex relatione can apply to the civil courts for injunctive relief against threatened breaches of the law. The present proceedings are misconceived and should have been struck out." (at p55)

"An Attorney-General is not subject to restrictions as to the applications he makes, either ex officio or in relator actions, to the courts. In every case it will be for the court to decide whether it has jurisdiction to grant the application and whether in the exercise of its discretion it should do so. It has been and in my opinion should continue to be exceptional for the aid of the civil courts to be invoked in support of the criminal law and no wise Attorney-General will make such an application or agree to one being made in his name unless it appears to him that the case is exceptional."

"The conclusion to which I have come in the light of the many authorities to which we were referred is that it is the law, and long established law, that save and in so far as the Local Government Act 1972, section 222, gives local authorities a limited power so to do, only the Attorney-General can sue on behalf of the public for the purpose of preventing public wrongs and that a private individual cannot do so on behalf of the public though he may be able to do so if he will sustain injury as a result of a public wrong. In my opinion the cases establish that the courts have no jurisdiction to entertain such claims by a private individual who has not suffered and will not suffer damage." (at p55)

21. Lord Diplock (1978) AC, at pp 499-500 in a passage too long to quote makes it clear that "the jurisdiction of a civil court to grant remedies in private law is confined to the grant of remedies to litigants whose rights in private law have been infringed or are threatened with infringement." (at p55)

"The point of cardinal importance that nevertheless remains is: assuming that the Attorney-General was entitled to decide as he did, does that preclude others who take a different view from seeking relief in the courts? For this purpose, we have to suppose that Mr. Gouriet's private legal rights have not been threatened or breached, and that although a public right is involved he has not suffered, and does not apprehend, any special damage over and above that sustained by the public at large." (at p55)

"But the primary question is: Had the court jurisdiction to make them (i.e. the declarations sought)? The answer given by the Attorney-General may be simply stated and has a familiar ring: Whenever public rights are in issue, the general rule is that relief may be sought only by, and granted solely at the request of, the Attorney-General. There are certain exceptions to the general rule, but none of them applies here."

His Lordship sets out certain statutory exceptions and concludes by saying:

"And there are the familiar common law exceptions to the general rule, dealt with by Buckley J. in Boyce v. Paddington Borough Council (1903) 1 Ch, at p 114 , where a private right has also been invaded or special damage suffered." (at p56)

24. Lord Fraser of Tullybelton said (1978) AC, at p 518 :

"The general rule is that a private person is only entitled to sue in respect of interference with a public right if either there is also interference with a private right of his or the interference with the public right will inflict special damage on him - Boyce v. Paddington Borough Council (1903) 1 Ch 109 ." (at p56)

25. I find nothing in the speeches of their Lordships in Gouriet's Case to suggest that they regarded the area in which private citizens might sue in respect of breach of public rights as wider than as stated by Buckley J. or that 'the expression "special damage" should be read as covering a larger and less precise area than the words themselves suggest. (at p56)

26. It does not appear that it is necessary to show present pecuniary damage. The "damage" sought to be prevented in Boyce's Case was the loss of opportunity to obtain after the appropriate period a prescriptive right to light. Such a right would be valuable, as would the prospect of obtaining it, and the damage was clearly "peculiar to himself" in the relevant sense, but it would not have been pecuniary damage. (at p56)

27. In the present case there is no pecuniary damage alleged, nor is there any loss of rights to go on to the relevant land by reason of anything done by the defendant. No claim was made in respect of any right to go on to the relevant land. No particulars were given of the allegation in the statement of claim that the plaintiffs had "suffered or will suffer special damage peculiar to themselves". In such circumstances it could not be asserted that the statement of claim disclosed no locus standi. (at p56)

28. The primary allegation according to the evidence, though it is not pleaded, was that the plaintiffs and all other members of the tribe were "custodians" or "joint custodians" of the relics according to the laws and customs of the tribe. This statement made in oral evidence was not pursued or elucidated in cross-examination or re-examination. This allegation if further investigated may show something which may be capable of amounting to "special damage" of a non-pecuniary nature which may bear out the pleading. It is however impossible to say on the present evidence whether it does or not. On an application to strike out a statement of claim and dismiss an action on the basis of want of locus standi the defendant bears the onus of showing that the facts as alleged or proved in evidence are incapable of sustaining a cause of action. It appears to me that in the proceedings in the Supreme Court the defendant failed to discharge that onus. It does not follow that upon a full examination of the facts at the hearing of the action absence of locus standi may not be established. An interlocutory decision will not prevent the matter being investigated on all the material then available. (at p57)

29. It is not necessary for present purposes to consider whether the fact that the alleged conduct of the defendant is a criminal offence under s. 21 of the Act or the fact that the plaintiffs have concurrently with these proceedings instituted criminal proceedings in respect of such alleged offence will operate to deny the plaintiffs the remedy they seek. Those are matters for the trial. (at p57)

30. Since I prepared the above reasons for judgment the report of the decision of the House of Lords in Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) (1982) AC 173 has come to hand. In that case Lord Diplock, with whose speech all their Lordships agreed, referred to Benjamin v. Storr and Boyce v. Paddington Borough Council (1903) 1 Ch 109 and said of Buckley J.'s second category (1982) AC, at p 186 :

". . . while to come within the second case at all it has first to be shown that the statute, having regard to its scope and language, does fall within that class of statutes which creates a legal right to be enjoyed by all of Her Majesty's subjects who wish to avail themselves of it. A mere prohibition upon members of the public generally from doing what it would otherwise be lawful for them to do, is not enough." (at p57)

31. The present case would appear not to satisfy that test. On the view which I have taken the considerations to which his Lordship adverts would be a matter for consideration on the trial of the action. His Lordship's test appears to be narrower than that adopted by this Court in the A.C.F. Case. (at p58)

32. In the result therefore I am of opinion that the appeal should be allowed and the matter remitted to the Supreme Court of Victoria. (at p58)

WILSON J. The sole point in this appeal by special leave from a unanimous decision of the Full Court of the Supreme Court of Victoria (Starke, Kaye and Jenkinson JJ.), on appeal from Brooking J., is whether the appellants have locus standi to maintain their claim against the respondent. (at p58)

2. The respondent is the owner of land ("the land") in Portland, Victoria. Under an agreement made with the State on 2 September 1980, and subsequently ratified and approved by the Parliament of Victoria in the Alcoa (Portland Aluminium Smelter) Act 1980, it has undertaken on the happening of the events outlined therein to construct and operate an aluminium smelter on the land. The Court was informed that this obligation has not yet crystallized. (at p58)

3. The appellants allege that they are members of the Gournditchjmara community of aboriginal people and descendants of the tribe which, in prehistoric times and subsequently, occupied land in and around the area which is now known as Portland, including the land occupied by the respondent. They say that in, on and under the land there is evidence of the occupation by their ancestors in the form of many things which are relics within the meaning of that term in the Archaeological and Aboriginal Relics Preservation Act 1972 (Vict.) ("the Act"). These things include, but are not limited to, stone tools and debris resulting from the manufacture of stone artefacts. The statement of claim alleges that in breach of the provisions of s. 21 of the Act the respondent has wilfully interfered with these relics and threatens and intends further to interfere with them over the whole or a substantial part of the land by constructing industrial works thereon. They seek relief in the form of a declaration that the relics are "relics" within the meaning of the Act and an injunction restraining the respondent from carrying out any works on the land which will interfere with the relics. (at p58)

4. I will have occasion later in these reasons to refer to certain of the provisions of the Act, but it is convenient at this stage to describe briefly some features that it presents. It is "An Act to make Provision for the Preservation of Archaeological and Aboriginal Relics". Section 2 reads, in part:

"In this Act unless inconsistent with the context or subject-matter -

'Aborigine' means inhabitant of Australia in pre-historic ages or a

. . .

'Archaeological relic' or 'relic' includes a relic pertaining to the past

occupation by the Aboriginal people of any part of Australia, whether or not the relic existed prior to the occupation of that part of Australia by people of European descent, and without affecting the generality of the foregoing, includes any Aboriginal deposit, carving, drawing, skeletal remains and anything belonging to the total body of material relating to that past Aboriginal occupation of Australia, but does not include a body or the remains of a body interred in a cemetery, burial ground or place of burial after the year 1834, or a handiwork made for the purpose of sale.

"A person who wilfully or negligently defaces or damages or otherwise interferes with a relic or carries out an act likely to endanger a relic shall be guilty of an offence against this Act." (at p59)

5. Mr. Dwyer, counsel for the appellants, advances two submissions in support of his clients' standing. The first is that the Act is an Act for the benefit of aborigines as a class, investing every member of the class with a private right sufficient to maintain a suit directed to the preservation of relics connected with his tribal ancestors. (at p59)

6. In my opinion the submission is clearly untenable. The Act does not single out aborigines as its beneficiary. Of course, it recognizes that aboriginal relics are likely to be of primary importance in the preservation and protection of relics which it is the object of the Act to secure. But the Act is clearly directed to the preservation and protection of those relics for the benefit of all Australians: cf. ss. 5, 10, 20, 20A, 26 and 30. There is a generality about its provisions which precludes any implication of private rights in any particular group or class. Mr. Dwyer relied on two sections in particular as evincing the statutory purpose for which he contended: s. 5, dealing with the membership of the Advisory Committee, and s. 18 conferring on the Minister a qualified power compulsorily to acquire land containing a unique and irreplaceable relic which is in danger of loss or damage. He points out that three members of the Advisory Committee are to be aborigines. This is true, but the provision of three members in a total membership of twelve persons falls well short of signifying a controlling responsibility for the work of the Committee. It is a provision which recognizes that a substantial part of the work of the Committee will be to advise the Minister in relation to aboriginal relics. It is to be noted that the definition of "archaeological relic" and "relic", while expressed only in terms of past aboriginal occupation of Australia, is not couched in exhaustive terms. I think the conclusion must be drawn that the Act is not concerned solely with aboriginal relics. (at p60)

7. Section 18 denies to the Minister the power compulsorily to acquire land which is established as an aboriginal reserve and on which aborigines are living. On its face, the section makes an important distinction in favour of the aborigines who are referred to, a distinction which may or may not be affected by the special operation of statutes which are applicable to aboriginal reserves. It is unnecessary to examine the question, because I think it is clear that s. 18 cannot of itself have the far-reaching effect for which Mr. Dwyer contends. The protection of aboriginal interests which may be thought to be achieved by rendering a reserve ineligible for compulsory acquisition is limited. For example, it would seem that such a reserve, with the consent of the appropriate Minister, could be declared an archaeological area, with the result that all relics within that area would become the property of the Crown and be under the protection of the Crown (ss. 15 and 20). The provisions directed to protection and preservation of relics that are contained in ss. 21, 22, 23, 25, 26, 27 and 30 are all applicable without qualification to aboriginal reserves, as they are to other land in the occupation of other Australians. (at p60)

8. I therefore conclude that the Act does not create in aborigines as a class any private rights. (at p60)

9. Mr. Dwyer's alternative submission is that the appellants have a special interest as members of the Gournditch-jmara tribe in the relics of their ancestors. He argues that their interest is more than a mere intellectual or emotional interest, and falls squarely within the second limb of the statement of Buckley J. in Boyce v. Paddington Borough Council (1903) 1 Ch 109 as it was re-stated by Gibbs J. (as he then was) in Australian Conservation Foundation Inc. v. The Commonwealth (1980) 146 CLR 493 . (at p60)

10. In the former of these cases, Buckley J. (1903) 1 Ch, at p 114 stated the effect of the earlier authorities as follows:

"A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with . . . ; and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right."

In the latter case, Gibbs J. (1980) 146 CLR, at p 527 said of this passage:

"Although the general rule is clear, the formulation of the exceptions to it which Buckley J. made in Boyce v. Paddington Borough Council is not altogether satisfactory. Indeed the words which he used are apt to be misleading. His reference to 'special damage' cannot be limited to actual pecuniary loss, and the words 'peculiar to himself' do not mean that the plaintiff, and no one else, must have suffered damage. However, the expression 'special damage peculiar to himself' in my opinion should be regarded as equivalent in meaning to 'having a special interest in the subject matter of the action'."

Later in his reasons his Honour elaborated his understanding of a "special interest" (1980) 146 CLR, pp 530-531 :

"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." (at p61)

11. The significance of the relationship between the subject matter of the suit and the appellants is expressed by them in a number of ways. The relics are of cultural and historical importance to the members of the tribe, they aid the preservation of the tribe's separate identity, and are used in the education of their children in that the handling and visual examination of them assists in imparting an understanding of the heritage of the tribe. (at p61)

12. On the other hand, Mr. Pannam, counsel for the respondent, while conceding for the purpose of the argument that there is evidence of user, argues that there is no right to use, no right to enter on the land to gain access to the relics, with the result that the appellants have no stake in the controversy, and hence no standing. In any event, he argues that the cultural and historical associations which are relied upon by the appellants are no more than intellectual and emotional considerations which have never been regarded as sufficient. (at p61)

13. I hold against the respondent on both these points. I agree that the character of the relief which is sought in a particular case is relevant to the question of standing, and Mr. Pannam has made a telling point in this regard. Nevertheless, when the allegation is that relics of great significance to a particular people are threatened with destruction, the preservation of those relics is of overriding importance whether or not there is any immediate right of access. It may reasonably be a case of first save the relics, and worry later about gaining access in order to use them. (at p62)

14. With regard to the second point, this seems to me to be a very special case. I have felt some concern about the sufficiency of the case asserted in the statement of claim and developed in the evidence with respect to the merits. But we are not concerned with that. The nature of the interest that is asserted is clear enough, and in my opinion it is one which stands in contrast to that which was asserted in the Conservation Foundation Case. In that case, the Foundation was asserting a general concern that environmental considerations should receive adequate consideration in the administration of government, a concern that happened to be focussed through the events that occurred on a particular development in Queensland. It might just as easily have been related to proposed development in Victoria, or Western Australia or anywhere else in Australia. In the present case, the interest of the appellants is necessarily focussed on relics in a particular locality. There is nothing abstract about it. There is nothing voluntary about it, as there would be if it were a cause which if not pursued at Portland today may be pursued in the Kimberleys tomorrow. The Gournditch-jmara people, of which the appellants are representative, are involved with these relics, whether they like it or not. It is to their ancestors, their history, that the relics bear silent but meaningful testimony. Furthermore, the corporate nature of the interest, resident as it is collectively in the tribe, also serves to identify an interest which is deeper and more significant than a mere emotional attachment. In my opinion, the interest of the appellants, described as it is as a cultural and historical interest, is more than the kind of emotional or intellectual interest to which Gibbs J. referred in the Conservation Foundation Case. Whether there are spiritual implications is something which is unclear, perhaps because we have been concerned with stone chips rather than with the land itself. (at p62)

15. The view which, with great respect to their Honours, appeals to my mind may be further explicated by reference to the example taken by Starke J. of interference with the relics in the Australian War Memorial. I entirely agree with his Honour in his treatment of that hypothetical case. But I do not find it to be a true analogy because the class of hypothetical plaintiffs is drawn too widely. The interest which all former servicemen could claim in common in such relics is a spirit of patriotism nurtured and sustained by the memory of the courage and sacrifice displayed by so many of their fellow Australians, and in which to varying degree they may have shared. It is a precious sentiment, with a strong emotional content, yet lacking in that particularised special interest which is required to establish standing in law. The analogy would perhaps be more truly drawn if the hypothetical plaintiffs were related more closely, for example as actual descendants of those the relics of whose service were threatened with interference. On the other hand, if an aborigine from Arnhem Land had brought the present action, asserting an interest in the aboriginal relics on the respondent's land at Portland simply because he was an aborigine, with no greater interest in them than that possessed by every other aborigine, then no doubt his interest would not be sufficient. It is of course a question of fact and degree in every case and, as Mason J. remarked in Robinson v. Western Australian Museum (1977) 138 CLR, at p 327 , the cases are "infinitely various". (at p63)

16. It is also a fact in the present case that the appellants seek to use the civil process in order to enforce the criminal law. It is a jurisdiction which must be jealously guarded, its invocation even by the Attorney-General being confined normally to rather special circumstances: see, for example, Gouriet v. Union of Post Office Workers [1977] UKHL 5; (1978) AC 435, at pp 481, 490-492, 498, 510, 521 . However, in the circumstances of this case it is a consideration which does not of itself displace the special interest which I have found the appellants to possess. It may be very pertinent to the question whether the relief by way of injunction should be granted, although, if relics are irreplaceable, preventive action by way of injunction would obviously be more consistent with the objects of the Act than punishment following their damage or destruction. (at p63)

17. For these reasons, I hold that the appellants have standing to maintain their action. What the outcome of it will be is not for me to say. Mr. Pannam referred to a number of considerations which may well be more decisive to a consideration of the merits of the action than they were relevant to the limited question with which the Court has been concerned. (at p63)

18. I would allow the appeal, and return the matter to the Supreme Court of Victoria to be proceeded with according to law. (at p64)

BRENNAN J. Section 21 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vict.) (which I shall abbreviate to the Relics Preservation Act) provides:

"A person who wilfully or negligently defaces or damages or otherwise interferes with a relic or carries out an act likely to endanger a relic shall be guilty of an offence against this Act."

Contravention of this provision is punishable by fine or imprisonment or both (s. 28(2)). (at p64)

2. Founding their action on this section, the two appellants issued a writ against the respondent, indorsed with their statement of claim alleging that it had wilfully interfered with certain relics on land which it occupies at Portland in Victoria. (at p64)

3. The relics consist for the most part in stone artefacts and the debris of their manufacture scattered in several areas and lying on or near the surface. The scatters of artefacts probably mark the sites of Aboriginal workshops in prehistoric times. The plaintiffs allege that the relics relate to the occupation of the land by the Gournditch-jmara people, and that the plaintiffs are the custodians of the relics according to the laws and customs of those people. They allege that the respondent had threatened "to further interfere with the said relics over the whole or a substantial part of the said land by constructing industrial works thereon" and that it intended to do so. (at p64)

4. The respondent proposes to construct an aluminium smelter on the land. It is bound by an agreement made with the State of Victoria that it will commence and complete construction of the smelter without undue delay, though the part of the agreement containing that obligation is not to come into operation until further agreements are made with respect to, inter alia, water and sewerage rates and charges and electricity tariffs and charges. The agreement was approved and given the force of law by the Alcoa (Portland Aluminium Smelter) Act 1980 (Vict.). Counsel for the respondent informed the Court that the further agreements had not yet been made and that the time for performance by the respondent and by the State of their respective obligations under the agreement had been deferred accordingly. (at p64)

A. A declaration that the said relics are "relics" within the meaning of the said Act (i.e., the Relics Preservation Act).

B. An injunction, including an interlocutory injunction restraining the defendant its servants agents or contractors from carrying out any works upon the said land which will interfere with relics thereon.

C. Such further or other relief as to the Court may seem fit. (at p65)

6. The appellants applied on summons to Brooking J. for an interlocutory injunction restraining the defendant its servants agents or contractors from carrying out any work upon the land referred to in the statement of claim until the hearing and determination of the action. The injunction was refused and the application dismissed. A cross application by the respondent to dismiss the action succeeded. The Full Court upheld the orders made by Brooking J. The view was taken that the plaintiffs could not show either a private right or a special interest in the subject matter of the action, and accordingly that they lacked standing to sue for the declaration and injunction which they claimed. (at p65)

7. The Attorney-General having declined to grant his fiat, special leave to appeal from the judgment and orders of the Full Court was given by this Court. The appeal turns solely on the standing of the appellants to sue for the relief claimed. The appellants submit that they have standing to sue for the declaration and injunction claimed in their pleading either because s. 21 of the Relics Preservation Act confers a private right upon them or because the facts alleged in pars. 1, 2, 4, 5 and 6 of the statement of claim show that they have a special interest in the relics and their preservation. Those paragraphs allege:

"1. The Plaintiffs are descendants from inhabitants of Australia in prehistoric ages and members of Gournditch-jmara Aboriginal people.

2. The Plaintiffs are custodians of the relics of the Gournditchjmara Aboriginal people according to their laws and customs.

3. . . .

4. The Defendant is the occupier of land delineated upon the map annexed

hereto and situate at Portland in the State of Victoria (hereinafter referred to as 'the said land').

5. The whole of the said land contains numerous relics within the meaning of the Archaeological and Aboriginal Relics Preservation Act 1972.

6. The said relics relate to the occupation of the said land by the Gournditch-jmara Aboriginal people and are relics of which the Plaintiffs are custodians according to their laws and customs." (at p65)

8. The action is not brought to compel a public officer to perform a statutory duty; it is an action between private litigants to enforce performance by the defendant of a statutory duty for breach of which a penalty is provided. The appellants' argument in support of their standing to bring the action relies on both limbs of the proposition stated by Buckley J. in Boyce v. Paddington Borough Council (1903) 1 Ch 109, at p 114 :

"A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right." (at p66)

9. As Stephen J. pointed out in Australian Conservation Foundation Inc. v. The Commonwealth (1980) 146 CLR, at pp 537-538 ("the A.C.F. Case"), the first limb of the proposition "involves no more than that a plaintiff may, without joining the Attorney-General, sue for interference to some private right of his own", and it would be "surprising if the law were otherwise". There are, of course, a multitude of instances where the same act or omission at once violates both a private and a public right, or at once breaches a public duty and a duty owed to an individual. A plaintiff who sues to prevent violation of his private right or to enforce performance of a duty owed to him does not lack standing because there is a public right or public duty similar to the right or duty the subject of the action. Thus, an elector who is denied his common law right to vote may sue for an infringement of that right, though it is infringed in breach of a statute assuring free elections (Ashby v. White [1790] EngR 55; (1703) 2 LdRaym 938, at pp 954, 958 [1790] EngR 55; (92 ER 126, AT PP 136, 139) ); or a plaintiff who suffers damage as the inevitable consequence of a positive intentional criminal act has a cause of action in tort and may sue for damages: Beaudesert Shire Council v. Smith [1966] HCA 49; (1966) 120 CLR 145 ; Kitano v. The Commonwealth [1974] HCA 31; (1974) 129 CLR 151 . Any protection of the public interest which results from the prosecution of a plaintiff's action in cases of these kinds is incidental to the vindication of the plaintiff's own right or the enforcement of the performance of a duty owed to him. (at p66)

10. Similarly, when a statute at once creates a duty and confers a private right upon a party who suffers damage by breach of the duty created, the standing of a party to sue to enforce his private right is not in doubt. There may be difficulties in ascertaining whether, upon a true construction of the statute, it is intended that a private right should be conferred upon a particular plaintiff, but once that question is answered affirmatively the standing of the plaintiff to sue is clear. Sometimes a statute which creates a public duty may expressly confer a right of action for damages or other relief in the event of its breach, as in ss. 80 and 82 of the Trade Practices Act 1974 (Cth) (see Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information Centre Pty. Ltd. [1978] HCA 11; (1978) 140 CLR 216, at p 226 ). But usually the question whether a private right is conferred must be answered by reference to an inference which arises "on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation . . . " (per Kitto J. in Sovar v. Henry Lane Pty. Ltd. [1967] HCA 31; (1967) 116 CLR 397, at p 405 ). (at p67)

11. The appellants' argument on the first limb is that the Relics Preservation Act confers on them a private right of action for breach of s. 21. The Act is concerned to protect relics pertaining to the past occupation by the Aboriginal people of any part of Australia (ss. 2 and 21); it provides that three Aborigines must be appointed to the Archaeological Relics Advisory Committee constituted to advise the Minister in relation to archaeological relics and their preservation (ss. 5 and 7); and it exempts Aboriginal reserves on which Aborigines are living from compulsory acquisition when acquisition would otherwise be necessary to preserve a unique and irreplaceable relic from loss or damage (s. 18). It is submitted that a private right of action for breach of s. 21 is to be inferred because the Act benefits or protects Aborigines as a class. On the other hand, there are statutory indications that the preservation of relics is intended to enure for the benefit of the public at large and not only for the benefit of Aborigines; the duty to take action for the preservation of relics imposed upon the Minister and the Director of Conservation (ss. 10, 22(3), 23 and 25), the vesting in the Crown of property in all relics within an archaeological area (s. 20), and the prohibition against any person disturbing or excavating land for the purpose of uncovering or discovering a relic without first receiving the consent of the Minister (s. 22(1)). (at p67)

12. Though a statutory reference to a class to be benefited may assist the drawing of an inference that a right is intended to be conferred upon the members of the class (Cutler v. Wandsworth Stadium Ltd. (1949) AC 398, at pp 412-413 ), the conferral of a right of action does not depend on whether the statutory provision is expressed to be for the benefit of a class (O'Connor v. S. P. Bray Ltd. [1937] HCA 18; (1937) 56 CLR 464, at pp 486-487 ; Whittaker v. Rozelle Wood Products Ltd. (1936) 36 SR (NSW) 204, at p 208 , per Jordan C.J.). Nor does it necessarily follow that a statute which expressly refers to a class as a class to be protected affords its protection by conferring a right of action (Attorney-General v. Pontypridd Waterworks Co. (1908) 1 Ch 388, at pp 399-400 ; and cf. Attorney-General v. North Eastern Railway (1915) 1 Ch 905, at p 917 ). (at p68)

13. What is the class upon whom a right of action for breach of statutory duty might be thought to be conferred? It cannot be supposed that a defendant who breaches s. 21 is liable in damages to every Australian or Victorian Aborigine, or to every Aborigine who has a connection with a relic which has been defaced, damaged or interfered with. Nor does an award of damages to each member of a class appear to be a remedy which the legislature would have intended consequent upon any breach of s. 21. By what yardstick would damages be assessed? In context, neither the terms of s. 21 nor the statutory references to Aborigines, Aboriginal relics and Aboriginal lands reveal an intention to confer a private right of action upon the members of an Aboriginal class entitling them to damages for breach of the statutory duty imposed by s. 21 or some other form of relief. Nor does s. 21 confer on individual Aborigines a proprietary right to relics or a usufructuary right over them. Nor does it confer on all members of an Aboriginal class collectively any right which might be enforced by some members of the class in a representative action (see Bedford (Duke of) v. Ellis (1901) AC1 ; Wyld v. Silver (1963) 1 Ch 243, at p 265 ). (at p68)

14. The plaintiffs are therefore constrained to establish standing by bringing themselves within the exception to the rule that a private citizen cannot bring proceedings to prevent public wrongs. The general rule was stated by Gibbs J. (as the Chief Justice then was) in the A.C.F. Case in these terms (1980) 146 CLR, at p 526 :

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

The rules as to standing are the same whether the plaintiff seeks a declaration or an injunction." (at p69)

15. The exception to this rule formulated by Buckley J. in the second limb of Boyce was reformulated by Gibbs J., the better to express the principle which now governs the standing of a private plaintiff to sue to enforce performance of a public duty (1980) 146 CLR, at p 527 :

"Although the general rule is clear, the formulation of the exceptions to it which Buckley J. made in Boyce v. Paddington Borough Council is not altogether satisfactory. Indeed the words which he used are apt to be misleading. His reference to 'special damage' cannot be limited to actual pecuniary loss, and the words 'peculiar to himself' do not mean that the plaintiff, and no one else, must have suffered damage. However, the expression 'special damage peculiar to himself' in my opinion should be regarded as equivalent in meaning to 'having a special interest in the subject matter of the action'." (at p69)

16. Mason J. expressed the exception in similar terms (1980) 146 CLR, at p 547 :

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

The criterion of special interest better describes the approach to standing which has been taken in recent cases in Australia. A difference may be perceived between the strict view taken by the Court of Appeal in Boyce and more recent Australian cases relating to the standing of a plaintiff to sue his neighbour to enforce to the plaintiff's advantage the provisions of building or planning legislation. (at p69)

17. In Boyce the plaintiff, submitting that a statute required the land contiguous to his own land to be kept as open space, sought to prevent the defendant from erecting a hoarding. He failed before Buckley J. because the statute, on its true construction, did not preclude the defendant from erecting the hoarding (1903) 1 Ch, at p 117 , and ultimately his Lordship's construction of the statute was upheld in the House of Lords (1906) AC 1 . In the Court of Appeal, however, the view was expressed that the Attorney-General should be joined as co-plaintiff in order to determine as between him representing the public and the defendant whether the defendant was in breach of its public duty. It was held that no complaint of breach could be made by a private individual: see per Vaughan Williams L.J., with whom the other members of the Court concurred (1903) 2 Ch 556, at pp 563-564 . The Attorney-General was joined as a plaintiff, and when the case went to the House of Lords the view of the Court of Appeal went unchallenged. (at p70)

18. However, in Vanderwolf v. Warringah Shire Council (1975) 2 NSWLR 272 , Bowen C.J. in Eq. (as he then was) held that plaintiffs had standing to bring proceedings seeking a declaration that a development approval and land use consent granted to the second defendant by the Warringah Shire Council were nullities. The plaintiffs could sue without joining the Attorney-General because, as his Honour said (1975) 2 NSWLR, at p 275 , they "would be directly affected by the proposed development and do have locus standi." Recently this Court held in Day v. Pinglen Pty. Ltd. [1981] HCA 23; (1981) 148 CLR 289 that a plaintiff whose view of Sydney Harbour would be interfered with by an unlawfully erected building, and whose property would thereby be depreciated in value, had standing to sue to restrain the contravention of the building control provisions of the Local Government Act 1919 (N.S.W.). In both cases, the plaintiffs were assisted to show that they had a special interest in protecting the amenities of the neighbourhood by a provision which conferred a personal right on the plaintiff to object to a grant of approval for the construction of the building; but in neither case were the plaintiffs seeking to enforce rights to object or to participate in administrative proceedings for the grant or refusal of approval (cf. S.S. Constructions Pty. Ltd. v. Ventura Motors Pty. Ltd. [1964] VicRp 32; (1964) VR 229 ). And in Howes v. Victorian Railways Commissioners [1972] VicRp 12; (1972) VR 103, at p 124 McInerney J. held that depreciation in value of a plaintiff's land caused by a defendant's contravention of a planning scheme would be "special damage" sufficient to give a plaintiff standing to sue to enforce conformity with the scheme. (at p70)

19. The interests which were held sufficient to give standing in these cases may not have satisfied the Court of Appeal in Boyce but they fall squarely within the concept of "special interest" expressed in the A.C.F. Case. Of course, the breach of duty in each of these cases affected the plaintiff's interests as an owner of land. And perhaps the same foundation supported the standing of the plaintiff in Blanch v. Stroud Shire Council (1947) 48 SR (NSW) 37 where Roper J. held that, as the defendant's proposal to raise a loan carried the risk that the loan moneys would be used to acquire compulsorily the plaintiff's land, the plaintiff had standing to challenge the lawfulness of the proposed raising of the loan. But the criterion of special interest is expressed to be of general application, not limited to cases where breach of a public duty is productive of damage to the plaintiff's proprietary rights. (at p71)

20. Perhaps Buckley J.'s notion of special damage was derived from the notion of particular damage occasioned by a public nuisance and recoverable at common law (Neville Nitschke Caravans (Main North Road) Pty. Ltd. v. McEntee and McEntee (1976) 15 SASR 330, at p 340 , per Bray C.J.). If that be so the reformulated criterion of "special interest in the subject matter of the action" facilitates the separation of the rule as to standing from the definition of the damage occasioned by a public nuisance which is recoverable at law (as to which, see Walsh v. Ervin [1952] VicLawRp 47; (1952) VLR 361 ). The elements of the common law right to recover a pecuniary award for particular damage occasioned by a public nuisance are unlikely to furnish a general criterion of a private litigant's standing to sue for an injunction to restrain the contravention of a penal statute where the statute does not confer a personal right to sue for damages for its breach. It is not necessary for a private litigant to show that he would have an entitlement to damages if the law were breached before he can demonstrate a special interest in obtaining a declaration or an injunction to restrain a threatened breach. The exception to the general rule precluding a private litigant from suing in such cases extends beyond the recognition of a private litigant's right to sue to protect his own proprietary interests or to prevent the tortious infliction of damage upon him. If the exception were so limited, there would be a tendency to expand the categories of tortious liability to ensure that private rights of action corresponded with what are conceived to be appropriate cases for private litigation to enforce performance of public duties (cf. the judgment of Lord Denning M.R. in Ex parte Island Records Ltd. (1978) 1 Ch 122, at pp 136, 137 ). But the exception includes cases where the plaintiff has no private right of action, though he has an interest in the subject matter of the action which is special in comparison with the interest of the public at large (cf. Argyll (Duchess) v. Argyll (Duke) (1967) Ch 302, at pp 344, 345 , per Ungoed-Thomas J.). (at p71)

21. The question whether the present plaintiffs, lacking a private right upon which to sue, can apply for injunctive relief against a threatened breach of s.21, is not determined against them because they would have no entitlement to pecuniary compensation in the event of the breach occuring. The criterion of special interest is sufficiently broad to encompass a case where a breach of the law would not be productive of damage compensable by a pecuniary award. Thus Gibbs J. said in the A.C.F. Case (1980) 146 CLR, at p 530 : "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." (at p72)

22. Injunctive and declaratory relief to enforce performance of public duties depended in earlier times upon the public interest presenting "those features which belong to the wide category of rights recognized in equity as proprietary" (per Dixon A.J., as he then was, in Attorney-General (Vict.); Ex rel. Lumley v. T. S. Gill & Son Pty. Ltd. [1927] VicLawRp 3; (1927) VLR 22, at p 31 ), but it would be "contrary to the trend of authority since 1927 to accept now the limitation adopted in Gill's Case upon the jurisdiction of a Court of Equity to grant injunctions" (Cooney v. Ku-ring-gai Corporation [1963] HCA 47; (1963) 114 CLR 582, at p605 , per Menzies J.). If the grant of declaratory and injunctive relief to enforce performance of public duties is not now dependent upon an affection of public proprietary interests, there is no reason in principle why the special interest in that relief which a plaintiff must show should necessarily consist in an affection of his proprietary or pecuniary interests by the threatened breach of the law. It is another question, presently irrelevant, whether a plaintiff who has standing to apply for such injunctive relief may obtain in some cases damages under Lord Cairn's Act: see Neville Nitschke Caravans (1976) 15 SASR 330 and Attorney-General (N.Z.) v. Birkenhead Borough (1968) NZLR 383 . (at p72)

23. Cases where a plaintiff has a special interest in the performance of a public duty but no private right of action arising from its breach have been relatively few. Yet there is no novelty in a plaintiff having standing to sue for the vindication of an interest in the performance of a public duty where he has no legal or equitable right. A private litigant may, without enforcing any right of his own, enforce performance of a public duty by a public official (cf. Bradley v. The Commonwealth [1973] HCA 34; (1973) 128 CLR 557, at pp 575-576, 581-582, 593 ). There are, of course, significant differences between proceedings against a public official to enforce performance of a public duty and proceedings against a private defendant, as Lord Diplock observed in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. [1981] UKHL 2; (1982) AC 617, at p 639 , but the question whether the private plaintiff has or has not legal or equitable rights to enforce does not furnish an exhaustive test for distinguishing between the two classes. (at p73)

24. A special interest in the subject matter of an action being neither a legal nor equitable right, nor a proprietary or pecuniary interest, will ordinarily be found to arise from modern legislation enacted to protect or enhance non-material interests - interests in the environment, in historical heritage, in culture. Where such a statute imposes a public duty to protect or enhance a non-material interest a breach of the duty is apt to affect a non-material interest, and it would be vain to search for proprietary or pecuniary damage suffered by a plaintiff. A plaintiff in such a case, though he may be able to show a special interest in what the statute seeks to protect or enhance, would be unable to show a private right or to prove that he has suffered proprietary or pecuniary damage. To deny standing would deny to an important category of modern public statutory duties an effective procedure for curial enforcement. (at p73)

25. The development in this country and by this Court of criteria governing standing to sue to enforce public statutory duties suggests caution in seeking assistance from judgments in the United Kingdom. In his speech in Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) (1982) AC 173, at p 185 , Lord Diplock denied standing to a plaintiff who sought to enforce a statute containing a mere prohibition against doing what would otherwise be lawful, and limited the second limb of the proposition in Boyce to cases where (a) "the statute creates a public right (i.e. a right to be enjoyed by all those of Her Majesty's subjects who wish to avail themselves of it)" and (b) a particular member of the public suffers "particular, direct and substantial" damage "other and different from that which was common to all the rest of the public" (quoting Brett J. in Benjamin v. Storr (1874) LR 9 CP 400, at p 407 ). The adherence by his Lordship and the other members of the House of Lords to the test of particular direct and substantial damage marks a divergence from the criterion of special interest adopted in the A.C.F. Case, but his Lordship's distinction between statutes which create public rights and mere statutory prohibitions against doing what would otherwise be lawful is reflected in the distinction between a special interest which gives standing and a mere intellectual or emotional interest which does not. A statute which expresses a mere prohibition is not likely to give rise to more than an intellectual or emotional concern to see the statute obeyed; on the other hand, a statute which creates a right to be enjoyed (whether by all or some of Her Majesty's subjects) may give rise to a sufficient interest to seek an order for the performance of a statutory duty to which the right is correlative if the plaintiff can show the special quality of that interest. (at p74)

26. Not every affection of a plaintiff's interests suffices to confer standing upon him. A plaintiff does not acquire standing to sue for relief merely by proclaiming before he sues that he has an interest in obtaining relief. Stephen J. said in the A.C.F. Case (1980) 146 CLR, at p 539 : "An individual does not suffer such damage as gives rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concern." Nor is a plaintiff regarded as having a special interest in the subject matter of an action "unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest" (the A.C.F. Case (1980) 146 CLR, at p 530 per Gibbs J.). A litigant's interest in obtaining the relief claimed is not by itself the interest which gives standing to sue; standing to sue is not established by suing. Where a plaintiff seeks to enforce compliance with a public duty, standing is to be found in some affection or threatened affection of the plaintiff's interests by the defendant's breach or apprehended breach of the duty. Conversely, a defendant is liable to be sued because by his breach of duty he has affected, or by his apprehended breach of duty he threatens to affect, the plaintiff's interests. (at p74)

27. A plaintiff must show that he has been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. It is not necessary to show that the plaintiff is uniquely affected; there may be some others whose interests may be affected in like manner. This will be the case where a statute protects the interests of a class, stopping short of conferring personal rights upon the members of the class. In Robinson v. Western Australian Museum (1977) 138 CLR 283 , where the plaintiff was seeking a declaration of invalidity of legislation which affected his interests, it was submitted that the plaintiff had no standing to sue because the legislation did not affect his interests differently from the interests of others. In rejecting the submission, Mason J. pointed out that, although the rule as to standing is "generally expressed in the proposition that a person not affected in his private rights may not sue for declaratory relief", sometimes the rule is expressed more liberally. His Honour said (1977) 138 CLR, at pp 327-328 :

"In truth (the rule) reflects a natural reluctance on the part of the courts to exercise jurisdiction otherwise than at the instance of a person who has an interest in the subject matter of the litigation in conformity with the philosophy that it is for the courts to decide actual controversies between parties, not academic or hypothetical questions. Reflection on the considerations which underlie the rule do not provide much assistance in defining the nature of the interest which a plaintiff must possess in order to have locus standi. However, it does indicate that the plaintiff must be able to show that he will derive some benefit or advantage over and above that to be derived by the ordinary citizen if the litigation ends in his favour. The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another." (at p75)

28. Whether a plaintiff has shown a sufficient interest in a particular case must be a question of degree, but not a question of discretion. I would adopt with respect what Lord Wilberforce said recently in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd., in reference to the criterion of standing to apply for judicial review now to be found in English O. 53, namely, "sufficient interest in the matter to which the application relates". His Lordship said (1982) AC, at p 631 : ". . . it does not remove the whole - and vitally important - question of locus standi into the realm of pure discretion. The matter is one for decision, a mixed decision of fact and law, which the court must decide on legal principles." It is material to consider whether the plaintiff's interest in the action is sufficient to assure that "concrete adverseness which sharpens the presentation of issues" falling for determination, to adapt the phrase of Brennan J. in Baker v. Carr [1962] USSC 48; (1962) 369 US 186, at p 204 (7 Law Ed 2d 663, at p 678) referred to by the members of the Court in the A.C.F. Case. It is also material to consider whether the plaintiff has shown so distinctive an interest that his action to enforce the defendant's public duty is likely to avoid a multiplicity of actions (cf. Iveson v. Moore [1792] EngR 1978; (1699) 1 Ld Raym 486 (91 ER 1224) ). At least the plaintiff must be able to show that success in the action would confer on him - albeit as a member of a class - a benefit or advantage greater than the benefit or advantage thereby conferred upon the ordinary member of the community; or alternatively that success in the action would relieve him of a detriment or disadvantage to which he would otherwise have been subject - albeit as a member of a class - to an extent greater than the ordinary member of the community. (at p76)

29. In the present case, if the relief sought by the appellants were granted, it would compel the respondent to desist from pursuing its alleged intention to interfere with the relics referred to in the statement of claim. Would the appellants obtain any distinctive benefit or advantage or would they be relieved of any distinctive detriment or disadvantage if the relief were granted? (at p76)

30. Although the Court has a procedural discretion as to the stage of the action at which it will dispose of an objection to standing (Robinson v. Western Australian Museum (1977) 138 CLR, at pp 302-303 ), in the present case the question was disposed of at the threshold. It was disposed of on the agreed basis that the facts pleaded in the statement of claim would not be augmented if the action went to trial. However, as Starke J. noted in the Full Court, "the facts pleaded were explained and expanded in the material before the learned judge", and it is convenient for this Court to determine the appeal on the same basis. Such a determination is necessarily interlocutory, however, and if the action comes to trial the trial judge may have to consider afresh upon the evidence then before him whether the plaintiffs have a special interest in the subject matter of the action. (at p76)

31. The starting point is the statute, which defines the public duty said to rest upon the defendant, and thus the nature of the interest which the plaintiffs may have in enforcing its performance. Section 21 proscribes the defacing, damaging or interference with relics. Relics are defined to include

"a relic pertaining to the past occupation by the Aboriginal people of any part of Australia, whether or not the relic existed prior to the occupation of that part of Australia by people of European descent, and without affecting the generality of the foregoing, includes any Aboriginal deposit, carving, drawing, skeletal remains and anything belonging to the total body of material relating to that past Aboriginal occupation of Australia . . . "

(s. 2 of the Relics Preservation Act as amended by the Amendment Act of 1980). The relics with which the present proceedings are concerned fall within the quoted part of the definition. Now what interests if any does the statute seek to protect? Clearly neither the Act generally nor s. 21 seeks to protect any proprietary interest in relics. An owner of a relic is bound by s. 21 no less than a person who has no proprietary rights in it. The powers created by the Act to acquire land on which there is a unique and irreplaceable relic (s.18), to proclaim an archaeological area and to prevent unauthorized access to it (s. 17), and to take action to preserve a relic (ss. 23, 25 and 31), make it clear that the purpose of the Act, accurately described by its title, is the preservation of relics. That purpose is assisted by imposing duties of safekeeping upon those who discover relics (ss. 23(2), 27(2)) and by prohibiting unauthorized excavation for relics (s. 22(1)) and their unauthorized sale (ss. 26(3), 27(3)). Proprietary rights are recognized by the Act (see ss. 15(2)(d), 17(2)(d), 18, 25(2), (3), and 26), but they are not the object of the Act's protection. The Act seeks to protect an interest in all archaeological relics some of which are, of course, relics of Aboriginal occupation before European settlement. An interest of this kind in archaeoloigal relics is neither proprietary nor pecuniary; it is cultural and for some it may be spiritual. It is at all events a non-material interest which may enrich a civilization and its citizens though it does not add to their material wealth or possessions. (at p77)

32. By pars. 2 and 6 of the statement of claim, the plaintiffs allege that the relics in question relate to the occupation of the land which contains them by the Gournditch-jmara Aboriginal people, and that the plaintiffs are, according to the laws and customs of those people, the custodians of those relics. It was explained in evidence that the members of the tribe or clan shared in that traditional responsibility. If relief is granted, the traditional responsibility will be to that extent discharged, the evidence of the relics to the historical links of the Gournditch-jmara people with the land occupied by their ancestors will be preserved, and items of cultural significance to the Gournditch-jmara people will be kept intact. It is the plaintiffs' alleged interest in the objects on the land and their significance in the history of the Gournditch-jmara people which gives those objects the character of relics within the meaning of the statute. If it were not for the known interest of the Gournditchjmra people in these objects, the relics would be so many pieces of stone or debris, of interest to pre-historians, but lacking the significance of ancestral connection. (at p77)

33. In the circumstances alleged in the statement of claim, s. 21 takes effect to preserve objects which are of cultural significance to the Gournditch-jmara people. Though their preservation may enure for the cultural enrichment of a much wider group of the community, the enforcement of the duty allegedly owed by the defendant would serve to relieve those people of a distinctive detriment, namely, the destruction or obliteration of the relics of their tribe or clan. (at p78)

34. On the facts alleged in the statement of claim, the members of the Gournditch-jmara people, of whom the appellants are two, have the special interest needed to pursue the relief claimed. Whether an injunction should be granted or a declaration made, even if a threatened contravention of s. 21 is established, is not a question for present determination. (at p78)

35. The appeal should be allowed with costs here and in the Supreme Court, and the action remitted to the Supreme Court of Victoria. It should be said that this order and the reasons for it are silent as to the effect of the Alcoa (Portland Aluminium Smelter) Act 1980 upon the interests of the Gournditch-jmara people in the preservation of the relics, or on the issues to be litigated if the action should proceed to trial after the time when the defendant is obliged to commence construction of the smelter. (at p78)

Paragraphs 1 and 4 of the order of the Supreme Court of Victoria set aside and in lieu thereof order as follows:

"1. (a) That the application for leave to appeal from the order of the Honourable Mr. Justice Brooking made on the 24th day of November 1980 dismissing the action be granted and the appeal allowed with the costs of the appeal to be taxed.

(b) That paragraph 2 of the said order of the Honourable Mr. Justice Brooking be set aside, and that in lieu thereof it be ordered that the respondent's summons dated the 19th day of November 1980 seeking to have the applicants' action dismissed or forever stayed be dismissed with costs to be taxed.

4. That the respondent's costs of the application before the Honourable Mr. Justice Brooking for an interlocutory injunction to the extent to which they were not incurred in relation to the issue of standing be taxed and when taxed be paid by the applicants."