Solicitors for respondent: Legal Aid Commission of Tasmania

Appeal dismissed.

Appeal FCA76/1992

Appeal dismissed.

GREEN CJ By a complaint made by a police officer, Inspector David John Fleming, the appellant was charged with trespass the particulars being that "without reasonable or lawful excuse, (he) did enter upon the land of (the respondent) .... without the consent of (the respondent) being the occupier thereof and the person lawfully in charge of the said property" contrary to the Police Offences Act 1935, s14B(1). After a hearing before a magistrate the complaint was dismissed. By a notice to review entitled "Inspector David John Fleming (applicant) and Terrence Patrick McCarthy (respondent)" filed pursuant to the Justices Act 1959, s107 notice was given that the Supreme Court would be moved "by counsel for Mr Boua Fue Xiong, a person aggrieved, to review" the order of dismissal. The notice was given by:

"Director of Legal Aid

Legal Aid Commission of Tasmania

123 Collins Street

Hobart 7000

Per: Roland Browne

Solicitor for the Applicant"

2. When the notice to review came on for hearing it appeared that the Director of Legal Aid had not been authorised by Inspector Fleming to file the notice and had not purported to do so on his behalf but had filed the notice on behalf of the respondent. The learned primary judge overruled a submission that as a result the notice to review was a nullity incapable of being remedied by amendment and ordered that the title of the proceedings be amended by substituting the respondent as the applicant. His Honour then overruled a further submission that the notice to review was not competent on the ground that the respondent had no standing to give it and proceeded to determine the notice to review on its merits. Appeals FC75/1992 and FC76/1992 are respectively appeals against those two determinations.

3. In my opinion there is no substance in appeal FC75/1992. The source of the power to file a notice to review and the only provisions governing its form are contained in the Justices Act 1959, s107 the material parts of which read:

"(1) A person who is aggrieved by an order of justices may,

upon notice in accordance with this section, move the

Supreme Court to review that order.

(2) A notice of motion under this section -

(a) shall be known as a notice to review, and

(b) shall set forth in specific terms the ground on which

review is sought.

(4) The grounds set forth in a notice to review shall allege -

(a) an error or mistake on the part of the justices on a

matter or question of fact alone, or of law alone, or of

both fact and law; or

(b) that the justices had no jurisdiction to make the

relevant order."

4. The only explicit requirements for the form of a notice to review which are prescribed by those provisions are that it shall set forth grounds which answer the description in s107(4). However by necessary implication the section must also be taken to require that the order the subject of the notice and the name of the person claiming to be aggrieved should be identified. All those requirements were satisfied in this notice to review. No heading or title to the proceedings is prescribed and the reference to Inspector Fleming in the title was superfluous. The only substantive assertion in the notice was that the respondent was the person aggrieved and plainly that assertion was not negated by what was contained in a mere heading which was not required by the Act and which did not purport to be an assertion of any facts. The process not being a nullity it is plain that the learned primary judge had the power to amend the title so that it reflected the substantive parts of the process. I would dismiss appeal FC75/1992.

5. The only ground of appeal in FC76/1992 is that the learned primary judge "erred in law by finding that the respondent was a person aggrieved for the purposes of s107 of the Justices Act 1959."

6. The respondent carried the onus of showing that he was entitled to avail himself of that section and that means that he carried the onus of showing that he was a "person who is aggrieved" by the order which was the subject of the notice to review. That expression is not defined in the Act and this Court must therefore define its scope.

7. In my view, rules requiring that statutory provisions conferring a right of appeal should be strictly construed because of the presumption in favour of the finality of judicial proceedings or the presumption that a person who has been acquitted of an offence should not be liable to have that acquittal challenged on appeal, have no application to the construction of the expression "person who is aggrieved". In my opinion, whilst the rationale behind those presumptions makes them applicable to the determination of the question of whether a judicial determination should be reviewable, they have no application to the determination of the question of who has the right to appeal. In my view the expression "person who is aggrieved" should be construed without regard to any presumptions as to its scope.

8. Section 107 provides for the review of "order(s) of justices". In the main such orders are only made in ordinary inter parte proceedings between a complainant and a defendant who is a person alleged to have committed an offence or a breach of duty. The fact that Parliament has conferred the right to file a notice to review upon any person who answers the description "person who is aggrieved" rather than simply conferring it upon the complainant or defendant indicates that Parliament did not intend to confine that right to the parties to the proceedings. Generally speaking, legal proceedings of any description cannot adversely affect the rights, liabilities or interests of any person other than the parties to those proceedings. It thus follows that Parliament intended that in order to qualify as "a person who is aggrieved" it is not necessary for a person to show that the rights or interests which he or she claims to have been adversely affected by the order are confined to strictly legal rights or interests. In my view therefore statements in earlier cases which had the effect of restricting the scope of the expression to persons who had suffered a strictly legal grievance are not applicable to s107 and the following passage from the judgment of the Privy Council in Attorney-General of The Gambia v N'Jie (1961) AC 617 at 634 should be applied to the construction of the expression "person who is aggrieved" appearing in that section:

"In support of this preliminary point Mr Gratiaen referred

to the judgment of James LJ in Ex parte Sidebotham (1880) 14

Ch D 458, 465, CA where he said 'A "person aggrieved"

'must be a man who has suffered a "legal grievance", a man

against whom a decision has been pronounced which has

wrongfully deprived him of something, or wrongfully refused

him something, or wrongfully affected his title to

something'. If this definition were to be regarded as

exhaustive, it would mean that the only person who could be

aggrieved would be a person who as a party to a lis, a

controversy inter partes, and had had a decision given

against him. The Attorney-General does not come within this

definition, because, as their Lordships have already pointed

out, in these disciplinary proceedings there is no suit

between parties, but only action taken by the judge, ex mero

motu or at the instance of the Attorney-General or someone

else, against a delinquent practitioner.

But the definition of James LJ is not to be regarded as

exhaustive. Lord Esher MR pointed that out in Ex parte

Official Receiver, In re Reed, Bowen and Co (1887) 19 QBD

174, 178; 3 TLR 640, CA. The words 'person aggrieved' are

of wide import and should not be subjected to a restrictive

interpretation. They do not include, of course, a mere

busybody who is interfering in things which do not concern

him: but they do include a person who has a genuine

grievance because an order has been made which prejudicially

affects his interests."

9. The interests which have been prejudicially affected by an order not being confined to strictly legal interests, it then becomes necessary to determine the principle by reference to which they are to be identified. The mere citation of a list of the cases in which it has been held that the particular factual circumstances did or did not qualify a person as a person aggrieved would not be helpful. However I think that the following propositions provide some guidance as to how the issue should be determined:

1 The determination of whether a person is a person

aggrieved "depends on the facts of the case, and whether he

is able to show that he is really and directly interested in

the proceedings" per the Full Court in Day v Hunter (1964)

VR 845 at 848 citing Dentry v Stott (1947) VR 462.

2 Similar principles apply to the determination of whether a

person is a "person aggrieved" as apply to the determination

of whether a person has an "interest" or a "special

interest" in proceedings. "Expressions commonly used in

statutes to determine standing to sue are 'person

aggrieved', 'person interested' and 'person with affected

interest'. The particular expression with which this case

is concerned is a 'person who is aggrieved'. It has long

been recognised that these formulae for determining standing

to sue should not be given a rigid or inflexible meaning.

They are flexible words which derive their meaning and take

their colour from the context in which they appear and the

nature of the particular statute concerned." Per Lockhart J

in Ogle v Strickland (1987) 71 ALR 41 at 44.

3 Whether a party has a sufficient interest to give him

standing to sue involves a curial assessment of "the

importance of the concern" which that party has with or the

"closeness" of his relationship with or his "proximity to"

the subject matter of the litigation: per Stephen J in Onus

v Alcoa of Australia Limited [1981] HCA 50; (1981) 149 CLR 27 at 42.

4 In order to qualify as a "person who is aggrieved" a

person must show that his grievance is greater than or

different from that which any member of the general public

could claim to have as a result of the decision or order.

Any other conclusion would have the consequence of not

giving the words "who is aggrieved" any practical effect

because it would mean giving s107(1) no more effect than it

would have had had it read simply that "any person" may give

notice of motion. See also the judgments of Fisher and

Lockhart JJ in Ogle and Anor v Strickland and Ors (supra).

5 It follows from the foregoing that whether a person who

has suffered particular harm as the result of the commission

of an offence is a person aggrieved will depend upon the

relationship between the interests of that person on the one

hand and the general nature of the offence, the purposes for

which it was created and the circumstances of the particular

breach on the other.

10. I apply the foregoing principles to this case. The Police Offences Act 1935, s14B is a penal provision. In addition to declaring what conduct is condemned by the State, the general purpose of penal provisions is to protect society from the harm which it is thought is done to society generally by that conduct. The purpose of many penal provisions can also be said to include the protection of those individuals who suffer harm to an extent greater than the community at large as the result of the commission of a particular offence. In my view s14B of the Police Offences Act 1935 is such a provision. Section 14B was inserted by the Police Offences Act (No 2) 1973 which repealed and substantially re-enacted the Trespass to Lands Act 1862, s1. The preamble to the Trespass to Lands Act 1862 declares it to be "an Act to make better provision for the protection of lands from trespassers" and in my opinion that can also be said to be the purpose of the Police Offences Act 1935, s14B(1). In my opinion having regard to the purposes of s14B(1), owners and occupiers of land would be included in the class of persons whom one could conclude are regarded by the legislature as being especially within the purview of the protection afforded by s14B(1). The respondent was the owner or occupier of the land the subject of the charge against the appellant and I have reached the conclusion that he had an interest in the way in which these particular proceedings were determined which was different from and was greater than that of members of the public generally and that his "proximity" or "closeness" to those proceedings were such that he was a person who was "aggrieved" by the determination within the meaning which the word has in s107. I hold that the respondent had standing to give the notice to review pursuant to the Justices Act 1959, s107(1).

UNDERWOOD J The issues for determination in Full Court Appeals numbered 75/1992 and 76/1992 are respectively:

1 Was there a valid notice to review in LCA 55/1992?

2 Was the respondent a "person aggrieved" within the

meaning of the Justices Act 1959, s107(1).

2. These issues arise out of the following circumstances. In the early hours of the morning of 22 August 1991, Detective 1/C Constable McCarthy (the appellant) entered premises at 105 Creek Road, New Town. The house was occupied by the respondent, his wife and their eight children. The respondent leased the house from the Department of Community Services. The appellant entered through the laundry window without the permission of the respondent in circumstances which were unusual to say the least. Immediately following the appellant's entry, he was confronted by the respondent and his family. Police were summoned by telephone. Following inquiries by officers of the police internal investigation unit, the appellant was charged with a breach of the Police Offences Act 1935, s14B(1). The complaint was made by Inspector David John Fleming.

3. At the hearing in the Court of Petty Sessions, the appellant gave evidence to the general effect that he was driving down Creek Road when he thought he saw some persons lurking within the curtilage of 105 Creek Road. He believed they were what he described as "street kids". He stopped the car and approached the house. He believed that the persons he had seen were living in the house without lawful permission. He saw the laundry window open a few inches, pulled it up and got in. The learned magistrate dismissed the complaint. He did so on the basis that he could not dismiss the appellant's account as untrue and therefore he was not satisfied of guilt beyond reasonable doubt. From the order of dismissal a notice of motion was filed in this Court. It was as follows:

"IN THE SUPREME COURT OF TASMANIA

On Appeal from a Court of Petty Sessions

Held at Hobart

LCA No 55 of 1992

BETWEEN: INSPECTOR DAVID JOHN FLEMING (Applicant)

-and-

TERRENCE PATRICK McCARTHY (Respondent)

NOTICE OF MOTION

TAKE NOTICE that on the 31st day of August 1992 at 10.00

am in the forenoon or so soon thereafter as Counsel may be

heard this Honourable Court sitting at Salamanca Place,

Hobart, will be moved by Counsel for Mr Boua Fue Xiong, a

person aggrieved, to Review the Order of M Hill Esq,

Magistrate, made on the 20th day of July, 1992 whereby the

Learned Magistrate dismissed Complaint 64822/91 against

the Respondent alleging one count of trespass contrary to

Section 14B(1) of the Police Offences Act 1935.

UPON THE GROUNDS THAT

1 The Learned Magistrate erred in law in that he failed

to require the Respondent to satisfy him on the balance of

probabilities of the defence to the charge.

Director of Legal Aid

Legal Aid Commission of Tasmania

123 Collins Street

Hobart 7000

Per: Roland Browne

Solicitor for the Applicant"

4. When the motion came on for hearing it appeared that the Director of Legal Aid had no instructions from Inspector David John Fleming to act on his behalf. The Director was instructed by the respondent to move the Court and accordingly, the learned judge ordered that the notice to review be amended by deleting the words "Inspector David John Fleming" and substituting the words "Bouea Fue Xiong". It was submitted in the court below and on Full Court Appeal 75/1992 that there was no power to amend and that the notice of motion was a nullity. Having overruled those submissions the learned judge embarked upon a hearing of the motion.

5. Upon that hearing an affidavit made by the respondent was read. It set out his outline of the relevant events, deposed to his belief that the appellant was a trespasser in his house and that he was "aggrieved by the order of the Magistrate that the complaint against Terrence Patrick McCarthy be dismissed." The appellant took a preliminary point before the learned judge that the respondent was not a person aggrieved within the meaning of s107(1) and therefore had no standing to bring the motion. His Honour reserved his decision. For reasons later delivered in writing (64/1992) he held that the respondent had status as a person aggrieved. Full Court Appeal 76/1992 is against that determination.

6. His Honour then considered the substantive point in the lower court appeal and found that the learned magistrate had misdirected himself as a matter of law with respect to the onus of proof concerning reasonable excuse within the meaning of s14B. The complaint was returned to the learned magistrate for determination "in accordance with his Honour's reasons". The learned magistrate determined the complaint by again dismissing it. During the course of the hearing of the motion to review, counsel for the respondent on these appeals, sought leave to amend the grounds of the motion. Leave was refused. Pursuant to s107 an appeal against that refusal was filed and served. The respondent to that appeal filed a cross-appeal with respect to part of the judgment. The appeal has been abandoned but the cross-appeal remains for determination. Finally, the respondent has moved the Supreme Court to review the order of the magistrate dismissing the complaint for a second time (LCA94/1992). This motion has been referred to the Full Court for determination.

7. It was agreed that appeals numbered 75/1992 and 76/1992 should be heard first and together, and that the remaining matters be adjourned until later for it was possible that the determination of the first two appeals would govern the result of the other matters.

8. I am clearly of the view that appeal number 75/1992 should be dismissed.

9. An appeal from an order of justices is a creature of statute. The Justices Act, s107(1) provides that a right of appeal is given to a person who is aggrieved by an order and who gives "notice in accordance with the section". No form for the notice is prescribed by the Act or the Rules (see Justices (Control of the Supreme Court) Rules 8/66). In summary, s107 prescribes a valid notice to review to be one which:

1 sets forth in specific terms the ground on which the

review is sought;

2 within fourteen days is filed in the Supreme Court,

served on the person interested in upholding the order and

on the clerk to the justices making the order; and

3 contains grounds alleging either error or mistake on a

question of fact or law or fact and law or that there was no

jurisdiction to make the order.

10. Strict compliance with those statutory requirements is necessary to constitute a valid motion to review. There is no power to order amendment of a document that does not comply with the statutory requirements. See Hesselman v Reid (1973) Tas SR 93; Baylis v Johnston (1965) Tas SR (NC3). In this case there was compliance with the statutory requirements. It is true that the person identified in the notice as the applicant was not the applicant, nor was the Director of Legal Aid Inspector Fleming's solicitor as shown at the foot of the document. However, in my view such errors do not rob the motion of validity, for the order in respect of which the review is sought is clearly identified and the respondent is named as being the person aggrieved by the order and the person seeking its review. The erroneous inclusion of Inspector Fleming's name and the titular description of him as applicant is superfluous to the statutory requirements. The notice complies in all other respects with the statutory prescription. Whether or not an order was made altering the title to substitute the respondent's name for that of Inspector Fleming, I am of the opinion that the motion was a valid motion to review because it fulfilled all the statutory requirements of s107.

11. It has long been held that this Court, as a superior court of record, has inherent powers to maintain its authority, regulate its process and prevent its process from being abused. In Connelly v DPP (1964) AC 1254 at 1301 Lord Morris said:

"There can be no doubt that a court which is endowed with

a particular jurisdiction has powers which are necessary

to enable it to act effectively within such jurisdiction.

I would regard them as powers which are inherent in its

jurisdiction. A court must enjoy such powers in order to

enforce its rules of practice and to suppress any abuses

of its process and to defeat any attempted thwarting of

its process."

12. Generally as to this inherent power, see Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75; Williams v Spautz [1992] HCA 34; (1992) 66 ALJR 585 at 588; as to the extent of the inherent power generally see the Inherent Jurisdiction of the Court, I H Jacob (1970) 23 Current Legal Problems at 23.

13. Once seized of jurisdiction by virtue of compliance with the statutory requirements, the learned judge hearing the motion to review was entitled in the exercise of the inherent power, to order an amendment to the title so that the court could properly identify and readily keep track of the process that instituted the proceedings it had to determine.

14. The question whether the respondent was a person aggrieved by the order impugned is more difficult.

15. The expression "a person aggrieved" is a well worn and familiar statutory expression used to confer rights of access to various procedures. Stroud's Judicial Dictionary (5th edn) cites over thirty statutes in which the expression is used, one of the earliest being the Poor Relief Act 1744. There is much case law on the meaning of the expression. It is used in the Administrative Decisions (Judicial Review) Act 1977 (Cth) s5, where it provides a fruitful source of litigation. See for example, Alcoa v Button [1984] FCA 192; (1984) 55 ALR 101 at 108; Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1987) 71 ALR 73 at 79-82; Bond and Ors v Australian Broadcasting Tribunal (1989) 89 ALR 185. It is used in the Bankruptcy Act, s3 (see Re Mottee ex parte Mottee v Official Receiver (1977) 16 ALR 129). It is enacted in the Supreme Court Civil Procedure Act 1932. Section 42(1) of that Act gives a right of appeal, with leave of the court, to "any person who is not entitled to appeal under paragraph (a) of this subsection but who is aggrieved ... by the judgment order or determination."

16. Of this expression Lord Parker CJ in Ealing Corporation v Jones (1959) 1 QB 384 said at 390:

"First, I would like to voice a protest that Parliament

continues to allow this expression to come into Act after

Act of Parliament. As long ago as 1929, Lord Hewart CJ

in Sevenoaks Urban District Council v Twynam (1929) 2 KB

440 referred to the fact that these words were so often

used, and that if one looked at the cases, one would find

some cases going one way and some the other.

Notwithstanding that, the words continued to creep in

after that date and continue to do so today. This is

another case where Parliament has failed to make clear

what was really intended by those words."

17. It would appear that the protest has fallen on deaf ears for courts are still saddled with the task in each case of construing the words in accordance with the intention of Parliament, bearing in mind the nature and purpose of the statute in which they are enacted.

18. Since the decision of the Privy Council in The Attorney-General of The Gambia v N'Jie (1961) AC 617 an earlier, restricted general view of the ambit of this expression has been abandoned. Prior to N'Jie's case the authorities generally adopted the approach taken by James LJ in Ex parte Sidebotham (1880) 14 Ch D 458 that to be aggrieved, a person must suffer a legal grievance in the sense that "a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused something, or wrongfully affected his title to something" (at 465). See also R v London Quarter Sessions; ex parte Westminster Corporation (1951) 2 KB 508; Buxton v Minister of Housing and Local Government (1961) 1 QB 278. In Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 Gibbs CJ said at 184-185:

"The question that then arises is whether Mr Koowarta was

'aggrieved' by the act of the Minister that he considers

to have been unlawful by reason of s 9 or s 12. The words

'person aggrieved' have appeared in many statutes. English

and Australian, and their meaning has been discussed in

many cases. In the end of course the meaning of the words

must depend on the context of the particular statute. It

has often been said that the words connote a person with a

legal grievance: see Sidebotham; Ex parte Sidebotham

(1880) 14 CH D 458 at 465; Buxton v Minister of Housing

and Local Government (1961) 1 QB 278 at 285. The cases

under the Trade Marks Acts to which we were referred are

consistent with that view; they suggest that a person is

'aggrieved' by an act which operates in constraint of

what would otherwise have been his legal rights: Powell v

Birmingham Vinegar Brewery Co (1894) AC 8 at 10, 12;

Attorney-General (NSW) v Brewery Employes Union of NSW

[1908] HCA 94; (1908) 6 CLR 469 at 497, 519, 550; Continental Liqueurs

Pty Ltd v G F Heublein and Bro Inc [1960] HCA 37; (1960) 103 CLR 422 at

427. However in Attorney-General (Gambia) v N'Jie (1961)

AC 617 at 634, Lord Denning, delivering the judgment of

the Privy Council, said that the words are of wide import

and should not be subjected to a restrictive

interpretation. He added (at 634):

'They do not include, of course, a mere busybody who is

interfering in things which do not concern him: but they

do include a person who has a genuine grievance because

an order has been made which prejudicially affects his

interests'."

19. This more liberal approach to the meaning of the statutory expression has generally been followed since N'Jie's case, see for example, Rice Growers Co-operative Mill Ltd v Bannerman [1981] FCA 211; (1981) 38 ALR 535 at 539-40; Dalton v Deputy Commissioner of Taxation [1985] FCA 298; (1985) 60 ALR 783; National Trust of Australia (Vic) v T and G Mutual Society [1976] VicRp 60; (1976) VR 592; L A Ward Racing Syndicate v Trotting Appeal Committee (1987) 46 SASR 467. I agree with Cox J who said in the last mentioned case at 478:

"Two conclusions, I think, can be drawn from a review of

the cases. 'Person aggrieved' is a protean expression.

Its connotation is not fixed. In the end it will be a

matter of discerning the intention of Parliament - or

here, the Trotting Control Board as maker of the rules -

from such matters as the purpose of the legislation and

the context in which the words 'persons aggrieved' appear.

Secondly, the tendency these days is to interpret the

words liberally not restrictively. A person may have a

substantial interest in a decision although it is not a

legal interest or one that may be easily be expressed in

money terms; he may nevertheless be 'aggrieved' within

the meaning of this kind of provision."

20. See also Ritz Hotel Ltd v Charles of the Ritz and Anor (1988-1989) 15 NSWLR 158 where McLelland J adopted the same general approach upon an interpretation of this expression enacted in the Trade Marks Act 1955 (Cth) ss22(1) and 23(1).

21. The Justices Act 1959, is a procedural Act. Its predecessor was called the Justices Procedure Act 1919. Its general purpose is to provide for the appointment of justices, to regulate the procedure in courts of petty sessions for the hearing and determination of complaints for offences and breaches of duty and also to confer rights for a review of justices' decisions in the Supreme Court. Section 27 provides that, unless otherwise enacted or prescribed, proceedings before justices shall be commenced by a complaint. A complaint alleging a breach of duty or commission of an offence may, unless otherwise expressly provided by another statute, be made by any person. See Sargood v Veale [1891] VicLawRp 127; (1891) 17 VLR 660. According to the editor of Stone's Justices Manual 70 edn at 175:

"The theory is that the proceedings are taken at the suit

of the Sovereign. It is for the public benefit that no

impediment should be thrown in the way of putting the

criminal law in motion."

22. See also The Informant and his Authority to Prosecute (1942) 15 ALJR 310; Greenwood v Leary [1919] VicLawRp 14; (1919) VLR 114; R v Stewart (1896) 1 QB 300.

23. However, once a complaint has been determined in a court of petty sessions the right to seek a review of that determination does not lie in the hands of any person but is confined to those who are aggrieved by the order. It has been accepted in this State that the complainant, who in the majority of cases is a police officer without any personal interest in the order made on the complaint, is a person aggrieved within the meaning of the Justices Act, s107(1). See Attorney-General for Tasmania and Dexter v Rigby, Neasey J 61/1978. As the learned judge who heard this motion observed at page 3 of this reasons, there are many instances of police officers being heard on notices to review.

24. In Day v Hunter [1964] VicRp 109; (1964) VR 845 it was held that the statutory expression "any person who feels aggrieved" was designed to exclude the common informer and to confer the right to appeal on one who has a real or direct interest in the proceedings in which the decision sought to be reviewed was given. The same can be said of the expression enacted in s107(1). It confers the right on a person who has a real or direct interest in the order sought to be reviewed. The interest which will confer standing to bring the motion to review must be something not shared by the general community. Application of recent authority confirms that such interest need not be a legal interest in the sense of a pecuniary or proprietary interest.

25. The learned judge who head the motion posed the critical question in these terms at page 4 of his reasons:

"What then is the interest of the Applicant in the

proceedings and is it an interest which the dismissal of

the complaint suffices to constitute him a person

aggrieved. It is necessary for an applicant to establish

that he is aggrieved by the erroneous order, not merely

by the outcome of the proceedings. No doubt the

Applicant feels a sense of disappointment that the

criminal proceedings he asked the police to undertake

against the person who, it appears to be common ground,

intruded without his consent into his dwelling in the

early hours of the morning should end with the complaint

being dismissed. Other members of his household, of his

own community, and other citizens with a concern for the

rights of their fellows, especially those in minority

groups, could feel a like sense of disappointment, but

that of itself is insufficient to give him, or any of

them, standing as a person aggrieved."

26. The only fact that distinguishes the respondent from the general community is that he was the occupier of the house in which the complaint alleged the applicant trespassed without lawful excuse. In this sense he was "the victim" of the matter of complaint which was dismissed by the order sought to be reviewed. Does he, by reason of that simple fact have a sufficient interest in the order dismissing that complaint. The learned judge from whose order this appeal is brought considered that, "a person like the present applicant who was allegedly trespassed upon, can be said to have a direct and real interest in the enforcement of a law which is intended to protect the public at large and him personally in the instant case."

27. In Annetts and Anor v McCann and Ors [1990] HCA 57; (1990) 170 CLR 596, the court gave a liberal construction to the expression "any person ... who has a sufficient interest in the subject or result of the inquest ..." enacted in the Coroner's Act 1920 (WA), s24. Although the issue there was whether the Act evidenced an intention to exclude the rules of natural justice, in the view of the majority, protection by the parents of the reputation of their deceased son was a sufficient interest for the purposes of the Act. The majority judgment pointed out that over the last thirty years in the field of administrative law, there has been an extension of the interests protected by the common law rules of natural justice (599).

28. The expression "legitimate expectation" is one familiar to the common law of natural justice and now accepted as being a sufficient interest to attract the protection afforded by that law. See FAI Insurance Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342; Kiao v West [1985] HCA 81; (1985) 159 CLR 550; Haoucher v The Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648. The present case does not concern the circumstances that attract the rules of procedural fairness but I think it legitimate to have regard to the trend of judicial authority concerning legitimate interests in that field in trying to ascertain the nature of an interest that may be so affected by an order of justices that its holder may become a "person aggrieved" within the meaning of s107.

29. The order of dismissal in this case had no pecuniary effect on the respondent nor did it impinge upon any of his proprietary rights. The order did not have any effect upon any civil proceedings that the respondent might wish to bring against the appellant arising out of the facts upon which the complaint was based. It neither stated nor implied any finding adverse to the respondent. No doubt the respondent experienced a sense of disappointment, perhaps grievance, that an order of dismissal was made but, as observed, by the learned judge who heard the motion, that alone is an insufficient interest. The respondent has an interest in ensuring that the criminal law of the State is administered properly but that can be said of every other member of the community. So what interest, if any, has the respondent that is not shared by the general community and has been sufficiently affected by the order of dismissal to give him status to seek a review of that order?

30. A primary purpose of the criminal law (using that expression to describe offences against the public law for which punishment is awarded - Mann v Owen (1829) 9 B and C 595 at 602) is to protect injury being done to the person and property of individuals. The offences with which the criminal law is concerned are those in which the community has an interest as well as an affected individual. In this respect there lies a clear distinction between criminal and civil wrongs. Blackstone wrote of this in his Laws of England, vol 4, ch 1, Wrongs at 5:

"The distinction of public wrongs from private, of crimes

and misdemeanours from civil injuries, seems principally

to consist in this: that private wrongs, or civil

injuries, are an infringement or privation of the civil

rights which belong to individuals, considered merely as

individuals; public wrongs, or crimes and misdemeanours,

are a breach and violation of the public rights and

duties, due to the whole community, considered as a

community in its social aggregate capacity. ... In all

cases the crime includes an injury: every public offence

is also a private wrong, and somewhat more; it affects

the individual, and it likewise affects the community."

31. Whilst the whole community has an interest in maintaining the criminal law and in ensuring that orders of justices are made in accordance with that law, a person injured by a breach of the criminal law has a special interest, wider than that shared by the general community. This special interest arises out of the injury sustained or claimed to have been sustained by that person by the commission or alleged commission of the offence. When an order of dismissal of complaint is made in criminal proceedings ie, that commission of the offence has not been established beyond reasonable doubt, the person who alleges injury suffered by reason of the commission of the offence has an interest in that order of dismissal wider than the interest shared by the whole community.

32. In the present case then, the respondent has a sufficient interest in the order of dismissal to give him the status of being a "person aggrieved" within the meaning of the Justices Act, s107. Each case will turn upon its own facts, in particular the terms of the order in respect of which the review is sought. Whether or not a person is aggrieved will depend not only on the nature and extent of the interest relied upon, but also the effect the impugned order has on that interest. In the present case, it seems to me, that an order imposing a penalty after conviction would not have the same effect on the respondent's interest as an order of dismissal of the complaint.

33. For these reasons I am of the opinion that the respondent had status to bring the notice to review and accordingly would dismiss appeal No 76/1992.

WRIGHT J On 11 November 1991 Inspector David John Fleming made a complaint in the Court of Petty Sessions at Hobart that one Terrence Patrick McCarthy on 22 August 1991 without reasonable or lawful excuse did enter upon the land of one Boua Fue Xiong situate at 105 Creek Road New Town without the consent of the said Boua Fue Xiong being the occupier thereof and the person lawfully in charge of the said property, contrary to the Police Offences Act 1935, s14B(1).

2. The trial of this complaint took place before Magistrate M Hill Esq on 14 and 16 July 1992. During the course of the hearing Mr Xiong gave evidence that he was the occupier of the relevant premises and that he had not given authority for Terrence Patrick McCarthy to enter those premises on the relevant date. This evidence by Mr Xiong was not disputed and Terrence Patrick McCarthy, who is a police officer, gave evidence that at the time of his entry on the premises he was travelling home from duty early in the morning and on passing Mr Xiong's house, he thought he saw some suspicious movement in the grounds. Believing that the person in the grounds was an intruder, and also believing that the house was unoccupied, he attempted to gain entry, but upon failing to rouse the occupants, he entered through a window at the front of the house. Although it was plain that there were no intruders in the house at the time, the defendant McCarthy claimed that he had reasonable or lawful excuse to enter upon the property in the circumstances.

3. On 20 July 1992 Mr Hill dismissed the complaint against McCarthy. Inspector David John Fleming decided not to appeal against this decision and on 3 August 1992 Mr Xiong lodged a notice of motion with the Supreme Court in the following form:

"IN THE SUPREME COURT OF TASMANIA

On Appeal from a Court of Petty Sessions

Held at Hobart

LCA No 55 of 1992

BETWEEN: INSPECTOR DAVID JOHN FLEMING (Applicant)

- and -

TERRENCE PATRICK McCARTHY (Respondent)

NOTICE OF MOTION

TAKE NOTICE that on the 31st day of August 1992 at 10.00 am

in the forenoon or so soon thereafter as Counsel may be heard

this Honourable Court sitting at Salamanca Place, Hobart,

will be moved by Counsel for Mr Boua Fue Xiong, a person

aggrieved, to Review the Order of M Hill Esq, Magistrate,

made on the 20th day of July, 1992 whereby the Learned

Magistrate dismissed Complaint 64822/91 against the

Respondent alleging one count of trespass contrary to Section

14B(1) of the Police Offences Act 1935.

UPON THE GROUNDS THAT

1 The Learned Magistrate erred in law in that he failed to

require the Respondent to satisfy him on the balance of

probabilities of the defence to the charge.

Director of Legal Aid

Legal Aid Commission of Tasmania

123 Collins Street

Hobart 7000

Per: Roland Browne

Solicitor for the Applicant

TO: Mr Terrence Patrick McCarthy

c/- CIB

Hobart

The Clerk

Court of Petty Sessions

29 Liverpool Street

Hobart 7000

The Registrar

Supreme Court of Tasmania

Salamanca Place

Hobart 7000

Director

Public Prosecutions

10 Murray Street

Hobart"

4. When the motion to review came on for hearing before Cox J in the Supreme Court in September 1992, an objection was made on behalf of the respondent McCarthy that the notice of motion was a nullity because it purported to be filed by the Director of Legal Aid on behalf of Inspector Fleming whereas in fact the Director had no instructions from Inspector Fleming to take that course. Cox J took the view that although the notice of motion was clearly headed inappropriately, it did nominate Mr Xiong as the person on whose behalf the court would be moved and it complied with all of the other formal requirements of the Justices Act 1959, s107. Counsel for the respondent then took the preliminary point that Mr Xiong was not a person aggrieved within the meaning of that section. Cox J took time to consider this point and on 7 September 1992, delivered written reasons for judgment in which he rejected the respondent's submission and held that Mr Xiong was a person aggrieved within the meaning of the Justices Act 1959, s107.

5. Mr McCarthy has now lodged two separate appeals against his Honour's rulings. By FCA No 75/1992 he appeals to this Court seeking a review of his Honour's order made on 31 August 1992 wherein his Honour ordered that Mr Xiong's name be substituted in the notice to review for that of David John Fleming upon the following grounds:

"1 The Learned Judge erred in law by failing to rule that the

said Notice to Review was a nullity.

2 The Learned Judge erred in law by ordering the

substitution of the Respondent's name upon the said Notice to

Review."

6. The second appeal, FCA No 76/1992 seeks a review of his Honour's ruling on 7 September 1992 whereby his Honour found that the respondent was a person aggrieved for the purpose of the Justices Act 1959, s107. This appeal is upon the ground:

"1 That the Learned Judge erred in law by finding that the

respondent was a person aggrieved for the purpose of section

107 of the justices act 1959."

7. Both of the appeals to this Court were filed on 12 September 1992. Both appeals were heard together on 5 March 1993.

8. In support of his argument that the notice of motion lodged by Mr Xiong's solicitors was a nullity, counsel for Mr McCarthy drew the court's attention to a number of earlier decisions of this Court, notably Maynard v Rush (1965) Tas SR 233 which support the proposition that the court has no general power to cure procedural irregularities or omissions on the part of persons intending to invoke the appellate process but taking ineffective steps to achieve that purpose. The cases referred to are all distinguishable however because in those instances in which the court ruled the motion or application invalid, there had been one or more identifiable omissions by the intending appellant to take one of the prescribed statutory steps or there had been a failure to observe a statutory time limit upon proceedings. The present appellant is unable to point to any statutory deficiencies of this kind on the part of Mr Xiong. In my opinion the body of the motion to review clearly identifies Mr Xiong as the person allegedly aggrieved who sought to challenge the order of the learned magistrate. There is no prescribed form for a motion to review of this kind and in my opinion, the heading of the document, namely Inspector David John Fleming as applicant, is surplus to the formal requirements of the Justices Act. In the circumstances of this case I consider it quite impossible that Mr McCarthy could in any way be misled by the notice of motion which was served upon him. The body of the document makes it quite plain that Mr Xiong was the person claiming to be aggrieved by the magistrate's order and seeking a review of that order and to avoid any possible confusion by the title of the proceedings remaining in the name of Inspector Fleming, I consider it to be entirely appropriate and within power for Cox J to make the orders that he did amending the title.

9. In my opinion, the purported motion was not a nullity and the amendment made did not affect the substance of the motion in an impermissible way. Whilst nothing turns on the point, I think the words of Angel J in Smart v Stuart [1992] NTSC 19; (1992) 83 NTR 1 at 7 are worth noting. He said:

"Although there has been judicial recognition of instances

where a defect may render a writ a 'nullity', some care must

be taken with this terminology. A document which conforms

with the rules of court in form and has been issued and

sealed by the court should not later be described as a

nullity because of the connotation of an absolute 'void' that

this induces; cf Atco Industries (Aust) Pty Ltd v Ancla

Maritima SA (1984) 35 SASR 408 at 413, 414, 415 per Walters

J, at 416, 417 per Mohr J. That a defect may render the

document inoperative - in that it is incapable of amendment

and yet unable to operate without the necessary amendment -

may be accepted; however, the term 'nullity' is one which,

with the statutory and judicial trend favouring substance

over form and wide powers of amendment, can be seen to be

altogether inappropriate."

11. Turning now to the substance of the second appeal, the question requiring determination is whether or not Mr Xiong was a person aggrieved for the purpose of prosecuting that appeal.

12. It is strange to think that circumstances such as the present have not been the subject of an authoritative decision by a superior court in years gone by, but counsel assure us that despite their best researches, they are unable to find a decision upon a directly comparable point. It appears therefore that the matter must be resolved by applying general principles. In Ex parte Sidebotham in Re Sidebotham (1880) 14 Ch D 458 at 465, James LJ said this:

"It is said that any person aggrieved by any order of the

Court is entitled to appeal. But the words 'person

aggrieved' do not really mean a man who is disappointed of a

benefit which he might have received if some other order had

been made. A 'person aggrieved' must be a man who has

suffered a legal grievance, a man against whom a decision has

been pronounced which has wrongfully deprived him of

something, or wrongfully refused him something, or wrongfully

affected his title to something."

13. Commenting upon this definition in Attorney-General of The Gambia v Pierre Sarr N'Jie (1961) AC 617, the Privy Council said at 634:

"If this definition were to be regarded as exhaustive, it

would mean that the only person who could be aggrieved would

be a person who was a party to a lis, a controversy inter

partes, and had had a decision given against him. ...

But the definition of James LJ is not to be regarded as

exhaustive. Lord Esher MR pointed that out in Ex parte Official

Receiver, In re Reed, Bowen and Co. (1887) 19 QBD 174, 178 the

words 'person aggrieved' are of wide import and should not be

subjected to a restrictive interpretation. They do not include,

of course, a mere busybody who is interfering in things which do

not concern him: but they do include a person who has a genuine

grievance because an order has been made which prejudicially

affects his interests."

14. In Ogle and Anor v Strickland and Ors (1987) 71 ALR 41, the Full Court of the Federal Court of Australia took the view that the phrase "person aggrieved" as used in the Administrative Decisions (Judicial Review) Act 1977 (Cth), should not be given a rigid or inflexible meaning but should derive its meaning and take its colour from the context in which it appears and the nature of the particular statute. The court also drew a close comparison between a person aggrieved and one who has sufficient locus standi for the purpose of maintaining a civil action seeking injunctive or other relief. At 49-50 Lockhart J said:

"The importance of not giving the expression 'a person who is

aggrieved' a narrow meaning is readily perceived when regard

is had to the wide range of decisions under Commonwealth

enactments which are susceptible to review under the Judicial

Review Act and to the continually expanding field of

Commonwealth law. As statutes, regulations, ordinances and

other laws of the Commonwealth are continually emerging from

the draftsman's pen, the definition of the words 'a person

who is aggrieved' must be as applicable for future, as it is

for current, enactments.

There are sound reasons why the expression should not be

extended to include a member of the public who does not have

a grievance which he or she will suffer beyond that which he

or she has as an ordinary member of the public. Otherwise,

anyone at all could apply for review of a decision under a

Commonwealth enactment and for a statement under s 13 of the

Judicial Review Act of the findings on material questions of

fact and the reasons for the decision in question even though

the decision may not affect the person beyond being merely

emotionally or intellectually concerned or interested in the

decision. The right to request a s 13 statement is conferred

by that section upon 'any person who is aggrieved by the

decision': ...

There are real constraints which would discourage people from

instituting proceedings whose only interest is strong views

or feelings. The burden of costs, including the risk of

orders for costs being made against them if they lose, and

the power of courts to control their own proceedings,

including power to dismiss proceedings or strike out

pleadings if they are vexatious, frivolous or an abuse of

process are examples of some constraints."

15. In Australian Conservation Foundation v The Commonwealth (1978-1980) 146 CLR 493, the High Court had to consider the locus standi of the Australian Conservation Foundation to sue the Commonwealth and some of its Ministers for declarations, injunctions and other orders challenging the validity of decisions concerning a proposal by a company to establish and operate a resort and tourist area in central Queensland. The Foundation asserted the right to sue because of its well known interest in the preservation and conservation of the environment and because it had made submissions in relation to an environmental impact statement produced by the intending developers. In determining that the Foundation had not a sufficient interest to maintain proceedings, Gibbs J (as he then was) at 526 said:

"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."

"I would not deny that a person might have a special interest

in the preservation of a particular environment. However, an

interest, for present purposes, does not mean a mere

intellectual or emotional concern. A person is not

interested within the meaning of the rule, unless he is

likely to gain some advantage, other than the satisfaction of

righting a wrong, upholding a principle or winning a contest,

if his action succeeds or to suffer some disadvantage, other

than a sense of grievance or a debt for costs, if his action

fails. A belief, however strongly felt, that the law

generally, or a particular law, should be observed, or that

conduct of a particular kind should be prevented, does not

suffice to give its possessor locus standi. If that were not

so, the rule requiring special interest would be meaningless.

Any plaintiff who felt strongly enough to bring an action

could maintain it."

17. There is little doubt in my mind that if Mr Xiong had been the original complainant in these proceedings it would have been unarguable that he had a sufficient interest for the purpose of maintaining the motion to review in the event that he was dissatisfied with the decision of Magistrate Hill. It is equally clear that if Inspector Fleming, being the original complainant in the actual proceedings against Mr McCarthy, had felt strongly enough about the outcome of those proceedings, he would have been a "person aggrieved" for the purpose of instituting and maintaining a motion to review under the Justices Act 1959, s107 - see the comments of Neasey J in Attorney-General for Tasmania and Dexter v Rigby Serial No 61/1978 where he said:

"It has always been assumed, without so far as I am aware the

point ever having been disputed, that the complainant whose

complaint was dismissed or who was otherwise dissatisfied

with the order may claim to be a person aggrieved for the

purposes of s107 of the Justices Act 1959."

18. Obviously Mr Xiong could maintain a civil action for damages for trespass against Mr McCarthy if he chose to do so. It seems to me that it would be a very strange result indeed if his status as occupier of the relevant premises should afford him locus standi for the purposes of civil proceedings but would be insufficient to accord him characterization as a "person aggrieved" for the purposes of proceedings under the Police Offences Act. In all material respects his civil right of action and the offence created under the Police Offences Act 1935, s14B are co-extensive. By this I mean the indispensable ingredients both of the civil case and the prosecution for the offence are virtually identical.

19. In Onus v Alcoa Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 42, Stephen J, after observing that the criterion of "special interest" supplied no ready rule of thumb capable of mechanical application continued:

"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."

20. In my opinion, Mr Xiong has an obviously important concern with the subject matter of these proceedings and he has an extremely close relationship to that subject matter in light of the terms of the original complaint. He is not a mere witness. The subject matter of the proceedings is the allegedly unauthorised invasion of his home. I think he has an obvious and undeniable status as a "person aggrieved" within the meaning of the Justices Act 1959, s107. It is unnecessary to characterize him in some general way eg, as a "victim of crime". I think he has a more clearly discernible interest in the outcome of the proceedings than either the Annetts (Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596) or Ogle (Ogle v Strickland (supra)).

21. In my opinion, Cox J was correct in resolving this preliminary point in favour of the applicant and the present appeal should be dismissed.