Transurban City Link Ltd v Allan

[1999] FCA 1723

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(Decision by: Black CJ, Hill, Sundberg, Marshall And Kenny JJ)

On Appeal from a Judge of the Federal Court of Australia
Transurban City Link Limited Appellant
v Peter Allan Respondent (V 212 OF 1999)

Court:

Judge:
Black CJ, Hill, Sundberg, Marshall And Kenny JJ

Legislative References:
- Melbourne City Link Act 1995 (Vic)

Hearing date: 30 August 1999
Judgment date: 10 December 1999

Melbourne, Victoria District Registry

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Decision by:
Black CJ, Hill, Sundberg, Marshall And Kenny JJ

REASONS FOR JUDGMENT

1 The Appellant, Transurban City Link Ltd ("Transurban"), is the company responsible under the Melbourne City Link Act 1995 (Vic) ("the City Link Act") and the agreements entered into pursuant to that Act, for the building and running of the Melbourne City Link Project, essentially a toll road comprising roads, tunnels and bridges for moving traffic in the Melbourne metropolitan area. It appeals to the Court from the judgment of a judge of this Court setting aside a decision of the Administrative Appeals Tribunal ("the Tribunal"), which had held that the Respondent to the present appeal, Mr Allan, had no standing to seek review by the Tribunal of a decision of the Development Allowance Authority ("the Authority").

2 This is the second occasion upon which the question whether Mr Allan had standing before the Tribunal has fallen for decision by a Full Court of this Court. We shall narrate the history of the prior proceedings shortly.

3 On the first occasion Transurban was not a party to the appeal. Although, as will be seen, it submits that the facts now before the Court are different from those considered by the Full Court, so that that decision is distinguishable, it submits if the earlier decision is not distinguishable in a relevant way this Court should overrule it. It is for that reason that a bench of five judges of the Court was constituted to hear the present appeal.

The background to the present appeal

4 Between January 1996 and January 1997 Mr Allan lived at 2/28 Hooper Street, West Brunswick, 200 metres from the Tullamarine freeway in Melbourne. One end of the City Link Project ("the Project") commences at the end of that freeway which was widened by the construction of an additional six lanes between the Tullamarine freeway and Mr Allan's then home. According to Mr Allan the closest portion of the freeway when construction was completed (as it now is) was to be 100 metres from the Hooper Street property. He claimed also to be a member of the Australian Conservation Foundation and concerned about the environmental impact of the City Link Project - presumably the whole of it, including that part close to where he lived.

5 On 12 December 1995 the City Link Act came into operation. It was enabling legislation which provided for the construction and operation of the Project. It was one of a number of conditions precedent to the Agreement for the Melbourne City Link between the State of Victoria, Transurban and others ("the Melbourne City Link Agreement"), which is Schedule 1 to the City Link Act, that certificates be received from the Authority under the Development Allowance Authority Act 1992 (Cth) ("the DAA Act"). See clause 2.7 (d)(iii) of the Scheduled Agreement. Chapter 3 of the DAA Act, which was inserted into that Act in 1994 by Act No 163 of 1994, had as its object the provision of:

"tax incentives for genuine private sector investment in publicly accessible infrastructure facilities and related facilities".

(s 93A of the DAA Act).

6 A person could apply to the Authority for the issue of a certificate in relation to a proposed infrastructure borrowing as defined. The Authority was required to satisfy itself that the borrowing was such an infrastructure borrowing. If so satisfied the Authority was required to issue a certificate provided certain limited formal matters were satisfied. It is not suggested by Mr Allan that they were not. However, s 93O (2) provides:

"If:

(a)

the borrowing is a direct infrastructure borrowing; and

(b)

there is in force, at the time at which the DAA proposes to issue the certificate in relation to the borrowing, a law that the DAA is satisfied will prohibit or restrict the operation of other facilities in competition with the infrastructure facilities concerned:

the DAA must not issue the certificate."

7 The consequence of a certificate being issued was that interest on the infrastructure borrowings was to be treated as exempt from income tax to the lender, but the borrower was to be denied a deduction for such interest. The intention was to provide an incentive for persons to lend monies for the Project and, presumably, lower the interest rate that would be charged.

8 The Authority issued the relevant certificates on 19 January and 30 January 1996. Under the DAA Act no notification was required to be given to the public of the issue of certificates, although the Commissioner of Taxation was required to be advised of certain particulars, presumably so that the Income Tax Assessment Act 1936 (Cth) could be administered to produce the taxation result for which Parliament had legislated.

9 On 13 March 1996 Mr Allan, purporting to act under s 119 of the DAA Act, requested the Authority to reconsider its decisions to issue the certificates. Section 119 relevantly provides as follows:

"(1) A person who is affected by a reviewable decision may, if dissatisfied with the decision, by notice given to the DAA within:

(a)

the period of 21 days after the day on which the decision first comes to the attention of the person; or

(b)

such further period as the DAA allows;

request the DAA to reconsider the decision.

(2) ...

(3) Upon receipt of the request, the DAA must reconsider the decision and may, subject to subsection (4), confirm or revoke the decision or vary the decision in such manner as the DAA thinks fit.

(4) If the DAA does not confirm, revoke or vary a decision before the end of the period of 40 days after the day on which the DAA received the request under subsection (1) to reconsider the decision, the DAA is taken, at the end of that period, to have confirmed the decision under subsection (3)."

10 On 11 April 1996 the Authority notified Mr Allan that it would not reconsider its decisions because in its view he was not "a person affected" by the decisions to grant the certificates under s 119(1). By force of s 119(4) that was treated as confirmation of the decisions. Mr Allan then applied on 10 May 1996 to the Tribunal for a review of the decision under the provisions of s 121 of the DAA Act which provides for review by the Tribunal of decisions of the DAA.

11 On 13 November 1996 the Tribunal determined that Mr Allan was not a person affected by the Authority's decisions to grant the certificates. Mr Allan appealed to this Court from that decision. The appeal was heard at first instance by Mansfield J. His Honour dismissed the appeal because, having regard to the provisions of the DAA Act, he was of the view that Mr Allan was not relevantly a person affected. Mr Allan then appealed to a Full Court of this Court comprising Wilcox, Nicholson and Finn JJ. It unanimously reversed the decision of Mansfield J. The decision of the Full Court is reported at (1998) 152 ALR 439 . In particular the Court concluded that if Mr Allan was a person who had suffered special damage by virtue of the decision he would be a person affected by the decision. It referred the matter back to the Tribunal to make factual findings on the matter. It will be necessary to consider in more detail the decision of the Full Court later. It suffices to say that the decision must be read as holding that Mr Allan, as a person whose amenity of life was likely to be affected by the City Link Project, if it proceeded, was a person who would be affected by the decision of the Authority to issue certificates which would have the effect of exempting from tax income from infrastructure borrowings for the Project.

12 The matter was then remitted to the Tribunal for further consideration. Before the matter had been heard by the Full Court, Mr Allan sold his house at Hooper Street and purchased a new house at 8 Meaker Avenue, Brunswick. It seems that he purchased the new house on 19 September 1996 and moved in January of the next year. It seems to be common ground that the new house is in no way affected by the City Link Project. None of those facts was disclosed to the Full Court when the matter was heard in October 1997.

13 The freeway widening works near Hooper Street were commenced in April 1997. In the meantime those works, initially scheduled for completion in September 1999, have been substantially completed and the Project officially opened.

14 Before the next hearing in the Tribunal, Transurban became a party to the review, but only after its application to be joined had been initially rejected by the Tribunal.

15 The Tribunal by this time had been told of Mr Allan's change of address. Transurban submitted to it that the Application should be dismissed as frivolous or vexatious under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). However, the Tribunal found it unnecessary to deal with that submission since it was of the view that Mr Allan was not a "person affected" by the decision to issue the certificates, because he had no "special interest" in the sense those words were used by Gibbs J in Australian Conservation Foundation Incorporated v Commonwealth of Australia (1980) 146 CLR 493 at 530.

16 It was the Tribunal's view that standing had relevantly to be established not only at the time the application was brought to it, but if the situation changed, by reference to the changed situation. Reference was made to the decision of the Tribunal (Mathews P, Beaumont and Hill JJ) in Re Williams and the Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 in support of that view. On this basis, whether or not Mr Allan's claimed loss of amenity sufficed to give him standing at the time of the original application, that matter had ceased to have relevance once Mr Allan had moved. The Tribunal rejected an argument that his property had declined in value as a result of the proposed freeway widening. It did not make any findings on Mr Allan's claim that he had moved only because of the proposal and had incurred expenditure in removal expenses as a result, regarding that matter, presumably, as irrelevant.

17 Mr Allan then appealed from that decision to a single judge of this Court.

The decision appealed from

18 The reasons of the learned primary judge, in setting aside the decision of the Tribunal proceeded upon two separate bases.

19 First, his Honour was of the view that once standing was established as at the time an applicant applied to the Tribunal to review an administrative decision, the applicant gained "an accrued right" to have the decision reconsidered. More broadly, his Honour was of the view that in a case such as the present this right accrued when the person affected by the administrative decision applied to the decision maker (in the present case the Authority) for review of the decision pursuant to a statutory right so to do. If that person applied to the Tribunal to review the decision, he or she retained that accrued right, particularly where the application to the Tribunal was to review a decision which had been confirmed because the Authority refused to reconsider it: cf s 119(4) of the DAA Act. Even if circumstances had changed, as in the present case, after the Tribunal's jurisdiction had been enlivened, the applicant continued to be entitled to have the Tribunal proceed with the review and to ensure that the decision had been made in accordance with law. It was immaterial whether the outcome of the review could in any way advantage the applicant should he be successful.

20 Secondly, in his Honour's view Mr Allan in his evidence before the Tribunal had stated that his sole reason for changing residence was to avoid the adverse effects of the road works upon his amenity. He had suffered inconvenience and some financial expense as a result of the change of residence. The Tribunal made no findings on these matters, but according to his Honour the evidence "was not seriously disputed." However, the Tribunal confined its enquiry to whether he had actually proved special damage, regarding itself as having to consider only whether Mr Allan could gain any advantage from the review or might suffer any disadvantage from it. His Honour held that this approach was wrong. As his Honour said:

"Whilst the existence of special damage (in the sense of advantage or disadvantage) might be a significant factor in favour of standing, its absence in the present case does not preclude a finding of sufficient interest."

21 Although the Tribunal had not dealt with the question whether the proceedings by Mr Allan were vexatious, his Honour was of the view that if Mr Allan's evidence that the expense and inconvenience of his change of residence arose from the original adverse effects claimed by him in respect of his amenity was accepted, then the change was not sufficiently disconnected from the original interest he had to result in the application to the Tribunal being frivolous or vexatious.

22 His Honour's ultimate order was to remit the matter to the Tribunal to be determined in accordance with law (which presumably would require it to make findings on the matters raised in the last paragraph). A fair reading of his Honour's judgment makes it clear that his Honour was of the view that the question of standing should be resolved in Mr Allan's favour, the application to dismiss on the basis that the proceedings were frivolous should be decided adversely to Transurban and that it was incumbent upon the Tribunal, at last, to embark upon the merits of Mr Allan's application for review. Writing of the "substantive issue" his Honour said:

"Plainly, this matter ought to be disposed of by the AAT at the remitted hearing. Thus, even if there is a substantial contest on the s 119(1) issue on the remitter, it would be most undesirable for the AAT to again endeavour to resolve this matter only on the issue of standing without considering the issues arising under s 93O. That is particularly so when one considers that the outcome of the appellant's application, if successful, has the potential to have significant consequences, not only for Transurban, but also for persons who are not parties in the present matter."

23 It is from this decision that Transurban appeals.

The competing submissions

24 Transurban submitted:

(1.)

The Court should reconsider and overrule the previous decision of the Full Court to which Transurban was not a party on the basis that it was in conflict with other Full Court decisions, especially the decision in Alphapharm Pty Ltd v Smith Kline Beecham (Australia) Pty Ltd [1994] FCA 996; (1994) 49 FCR 250 and at least the result, if not the reasoning, in McCallum v Federal Commissioner of Taxation (1997) 97 ATC 4509 . Particularly it was submitted that the previous Full Court decision placed no or insufficient weight upon the legislative context of the DAA Act which made it clear that the only person who would be relevantly "affected" by a decision of the Authority to issue a certificate would be the Commissioner of Taxation who was required to be notified of the decision.

(2.)

The question of standing had to be considered not merely at the time an applicant made an application to the Tribunal to review a decision which the Tribunal had otherwise jurisdiction to review but, where circumstances changed before the hearing, at the time of hearing. It was submitted that there was no justification for a doctrine of "accrued right to standing" as enunciated by the learned primary judge.

(3.)

Following upon the change of residence, and the completion of the City Link Project for all practical purposes, Mr Allan lacked standing to seek a review of the decision.

(4.)

If Mr Allan did have standing, his application should, because of submission 3 above, be dismissed as frivolous or vexatious.

25 For Mr Allan it was submitted:

(1.)

This Court should only overrule a decision of another Full Court if there were very special circumstances or if the previous decision was clearly or plainly wrong and that, there being no special circumstances and the previous decision being in any event not plainly wrong, the Court should not overrule it.

(2.)

Alternatively, for the reasons given by the Full Court in the previous decision, that decision was correct and should be followed.

(3.)

The learned primary judge was correct in holding that the standing Mr Allan enjoyed when he made his application, based on the fact that his amenity was affected by the building of the Tullamarine extension, was an accrued right which he retained irrespective of any alteration in circumstances, because his right was a right to the enforcement of a public duty to ensure that the decision-making process was effected in accordance with law.

(4.)

Once it had been established at the time of application that Mr Allan had standing, his application could not be dismissed as frivolous because, again, his right was the enforcement of the due administration of the law.

Should the previous Full Court decision be reconsidered

26 The first question that arises is whether this Court should embark upon a reconsideration of the previous Full Court decision.

27 It is not in doubt that a Full Court of this Court has power to decline to follow the previous decision of a differently constituted Full Court. The Court is not bound to perpetuate error if error there be. Nor is it in doubt that while the Court has that power, it is a power which should be exercised with great care. The doctrine of precedent, which is fundamental to the common law, brings with it the consequence that decisions of an intermediate court of appeal will be binding on single judges within the same court hierarchy. They will be relied upon by the broader community and the profession. Decisions of a Full Court of this Court are entitled to due respect and will not be lightly departed from.

28 In Nguyen v Nguyen [1990] HCA 9 ; (1990) 169 CLR 245 , at 268-269, Dawson, Toohey and McHugh JJ, observed that the extent to which the appellate court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself, citing the judgment of Bowen CJ and Forster J in Chamberlain v The Queen [1983] FCA 78; (1983) 72 FLR 1 at 8-9, and noted also that the Full Court of the Federal Court will depart from a previous decision if convinced that it is wrong. Their Honours then said:

"Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law ...".

See also Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492.

29 A differently constituted Full Court would, of course, decline to follow the decision of another Full Court if it concluded that the previous decision was clearly erroneous. It would be wrong to do this merely because the matter was one on which minds might differ: cf Magman International v Westpac [1991] FCA 636; (1991) 32 FCR 1 at 20 per Hill J.

30 What their Honours said in Nguyen must be read in the context of their previous remarks. The statement of principle in Chamberlain v The Queen, cited with evident approval by their Honours, was qualified by the word "normally". The use of expressions of this nature leaves the way open for an approach that is appropriate to the circumstances of a particular case: see La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204. Towards the conclusion of their joint judgment in Nguyen, Dawson, Toohey and McHugh JJ, noting that appeals to the High Court were now by special leave only, and that the appeal courts of the Supreme Courts of the States and of the Federal Court were, in many instances, courts of last resort for all practical purposes, observed (at 269-270):

"In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this Court, rigid adherence to precedent is likely on occasion to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty."

31 Beyond this principle, we do not think it possible, or even desirable, to formulate exhaustive criteria upon which this Court should act when asked to reconsider an earlier decision, for so much will depend upon the nature of the controversy, the strength of the arguments and the particular circumstances attendant upon the case. The present appeal has some unusual features, not the least of which is that the decision which Transurban seeks to have overruled is a decision involving precisely the same facts and the same applicant to the Tribunal, Mr Allan. Transurban was not a party to the earlier appeal, yet had a serious interest to be heard. The review is one where those who have invested in advances made to Transurban and others (although they are not themselves represented either before the Court or in the proceedings before the Tribunal) may be very seriously affected should the review be ultimately successful. As it turns out, this is a case where the previous Full Court would clearly have been assisted by the arguments which Transurban has advanced on the present appeal. It is a case where Transurban had no direct right of appeal, yet in the result is bound by the decision. If Transurban is correct in its submission that no effective remedy is now available to Mr Allan, prolonging already lengthy litigation would be futile, and that would, plainly enough, be contrary to the public interest. In our view, these circumstances provide sufficient reason for the Court to embark upon a consideration of whether the previous decision was wrongly decided.

The question of standing

32 The previous Full Court and the submissions of counsel in the present appeal proceeded upon the basis that the question should be determined by reference to the general law tests of standing, which, of course, involve consideration of the relevant legislation. We shall consider the question in the same way.

33 The starting point of most discussions of curial standing is the decision in Boyce v Paddington Borough Council [1903] 1 Ch 109. That case concerned proceedings commenced by a plaintiff for injunctive relief to which the Attorney-General was not a party. Buckley LJ at 114 said:

"A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such that some private right of his is at the same time interfered with (eg 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."

34 On the facts of the actual case Mr Boyce had no private right, but as the owner of a block of flats which abutted a public open space on which it was proposed to erect a hoarding which would block light to the flats, he suffered special damage as a result of the potential detrimental effect to the flats, damage that was over and above that which might be suffered by a member of the public at large.

35 The question of standing has been authoritatively considered in a number of important High Court decisions since then, including Australian Conservation Foundation Inc v The Commonwealth at 527 per Gibbs J, at 541 per Stephen J and at 547 per Mason J, Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 35-6 per Gibbs CJ, at 41 per Stephen J and at 74 per Brennan J and Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) [1995] HCA 11; (1995) 183 CLR 552 . These were all discussed by Wilcox J and Nicholson J, with whom Finn J agreed, in the previous Full Court decision. The most recent decision of the High Court is Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247 decided subsequent to the previous Full Court decision. It is convenient to commence the present review of Australian authority with that case.

36 In the Aboriginal Community Benefit Fund case the first respondent to the appeal operated a contributory funeral benefit fund catering for members of the New South Wales Aboriginal community and was the trustee of a benefit fund for the community which had some 3000 members. The second respondent, which was related to the first respondent, operated a contributory life insurance business for members of the community. The appellants were, in effect, an Aboriginal land council.

37 The appellants proposed to conduct a contributory funeral benefits fund. The respondents sought to challenge the power of the appellants to do so in circumstances where the Attorney-General of the State of New South Wales had declined to grant a fiat. It was held that the respondents had standing to seek injunctive relief to prevent apprehended economic loss as a consequence of the alleged ultra vires activities proposed to be undertaken by the appellants.

38 The leading judgment was delivered by Gaudron, Gummow and Kirby JJ. Their Honours pointed out that it was significant in analysing the question of standing where injunctive relief was sought to have regard to the considerations upon which equity intervenes in public law cases. The basis of this intervention is, importantly, to be found in the public interest in the maintenance of due administration. In the course of the judgment, the formulation in Boyce came under some criticism from their Honours. However, they referred with approval to the joint judgment of Brennan, Dawson, Toohey, Gaudron and McHugh in Shop Distributive and Allied Employees Association, while noting the danger of adopting any precise formula as to what sufficed for a special interest in the subject matter of the proceedings, where to do so might unduly constrict the availability of equitable remedies to support the public interest in due administration.

39 In the Aboriginal Commumity Benefit Fund case McHugh J noted that a special interest in the subject matter of the proceedings, that is to say the legality in that case of the power to set up the new funds, sufficed to give standing. His Honour pointed out that the allegedly unlawful actions of the appellants financially affected the respondents and exceeded the injury to any other individual. If the illegality were allowed to continue, the financial injury would likewise continue. Hayne J agreed with the other members of the Court on the question whether there was in that case a special interest.

40 It is important to note, when considering the comment made by their Honours, that the present case does not involve any question of equitable intervention in circumstances where the Attorney-General's fiat has not been granted. The AAT Act proceeds upon the assumption that there is a public interest in administrative decisions being reviewed, by entrusting to the Tribunal the power to conduct a review on the merits of such decisions as Parliament should determine. The only qualification to that proposition is that an applicant for review be a person affected by the decision under review.

41 In the earlier case of Shop Distributive and Allied Employees Association the issue was whether a union had standing to challenge the decision of the respondent Minister to permit Sunday trading by granting certain certificates in effect exempting shops in the Central Business District of Adelaide from regulations prohibiting trading on Sundays. It was held, not surprisingly, that the Union did have standing. It represented members who were shop assistants employed in the Central Shopping District and had a special interest in the trading hours since alteration of them would necessarily affect the terms and conditions of employment of members of the Union.

42 In reaching this conclusion Brennan, Dawson, Toohey, Gaudron and McHugh JJ applied the test derived from Australian Conservation Foundation v The Commonwealth and stated by Gibbs CJ in Onus at 558 in the following terms:

"A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action."

Their Honours commented upon this test briefly as follows:

"The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest."

43 In the Australian Conservation case in which it had been held that the appellant had no interest to challenge a decision made under regulations affecting foreign exchange, Gibbs J explained what was meant by "special interest". His Honour said at 530:

"... 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."

44 The fact that in the Conservation case the conservation body opposed a resort development which depended upon the outcome of an application for exchange control approval did not suffice to give it standing to oppose the grant of approval. No doubt, had the body sought to challenge a decision more directly related to the development as, for example, happened in some later cases, such as North Coast Environment Council Inc v Minister for Natural Resources [1994] FCA 1556; (1994) 55 FCR 492 , the outcome may have been different.

45 Importantly for the present appeal, Aickin J expressed the view that the question of special interest was to be answered by reference to the relationship between the interest claimed by the plaintiff and the relief the plaintiff sought. His Honour said at 511:

"The `interest' of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed... [T]he plaintiff's interest should be one related to the relief claimed in the statement of claim."

46 It is inherent in the submissions on behalf of Mr Allan that, contrary to the view of Aickin J, the question of special interest is to be determined without reference to the relationship between the interest of the applicant on the one hand and the relief which review of the decision complained of would, if successful, afford on the other. It would, to say the least, be somewhat strange if this were the case. If the relief sought could never further the interest of an applicant or the failure to grant it harm him or her, common sense would suggest that the applicant for judicial review would lack standing.

47 If there be support at all for such a submission it may, perhaps, be found in the emphasis placed in a number of the cases upon the relationship between the applicant and the "subject matter of the proceedings", rather than the outcome of the proceedings. See, for example, per Stephen J at 42 in Onus. However there is nothing in these cases which suggests that outcome is irrelevant. The only place where at first sight the submission appears to find support is in a passage in the judgment of Brennan J in Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157, cited by the learned primary judge in the judgment now appealed from, where his Honour, then President of the Tribunal, said:

"The interest of which s 27(1) speaks is an interest which is affected by the decisions to be reviewed, not by the review. The outcome or possible outcome of the proceedings is not the criterion for determining whether the proceedings have been duly instituted, and the relevant interest must be one which is affected by the [decision] whatever the outcome of a review might be."

48 But what his Honour there said has to be understood by reference to the context in which the case arose. The applicant to the Tribunal was a customs agent. The decision of which review was sought was the classification of certain goods for customs purposes. The applicant had advised an importer about the rate of duty payable. As a result of the decision he was potentially liable to the importer for negligent advice. Apart from an alleged injury to his reputation for having given wrong advice, he clearly had no interest at all in the subject matter of the decision. His Honour held that the applicant was not a person who had standing to apply to the Tribunal just because the outcome of the review would either leave him liable to be sued or alternatively free him from the possibility of suit. The case does not stand for the contrary proposition that a person totally unaffected by the outcome of the review can have standing. It stands only for the proposition that the mere outcome of the review may not suffice to give standing.

49 The case is also significant for the passage at 157 where his Honour referred to the "ripples of affection" which may widely extend in respect of a particular decision. As his Honour then observed, and it is the problem with which this appeal is concerned:

"The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of s 27(1)."

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

51 In the present case the subject matter of the review is the decision to issue certificates which, in effect, transfer the tax benefits of borrowings for an infrastructure project from the borrower to the lender. The statutory matter which the decision maker is directed to take into account, apart from compliance with formalities, is the impact on competing infrastructure. For Mr Allan to have standing to seek review of that decision he must have an interest in the decision to determine whether a borrower should obtain a deduction for interest or a lender pay tax upon it, having regard to the competition criteria.

52 In deciding whether the interest which Mr Allan claims is too remote, it is necessary to consider whether at the relevant time, that being the time he made his application to the Tribunal, he was likely to gain an advantage from the review. Put in another way, it is necessary to ask whether the interest he claims can in any way be advanced or harmed by the outcome of the review. This seems never to have been decided. It may be accepted that Mr Allan had no different interest in the taxation incidence of loans for financing the City Link Project than any other member of the public. Whether Transurban obtains a deduction for interest, or persons who have invested in infrastructure bonds covered by the certificates are exempted from taxation on the interest paid by Transurban, is not really his concern. What Mr Allan is seeking to do by the review was to bring an end to the City Link Project. That is, it seems to us, the very thing he could not achieve by the review, and the outcome of the review could not affect him.

53 It is true that the issue of a certificate under s 93O of the DAA Act was a condition precedent to the coming into operation of the Melbourne City Link Agreement (and that in this sense the issue of a certificate gave life to the Project): clause 2.7(d)(iii), set out in Schedule 1 to the City Link Act. When clause 2.7 of the Agreement is properly construed, however, it is tolerably clear that that condition precedent was satisfied when the certificate was received by the relevant parties. Assuming that the other conditions precedent to the operation of the Agreement were also satisfied, then the Agreement, which was given statutory force by virtue of s 14 of the City Link Act, came into operation. Thereafter, the rights of the parties were determined by the Agreement and the City Link Act. The Agreement made provision for various events which might adversely affect the parties, but the withdrawal or declaration of invalidity of a certificate under the DAA Act was not one of them. As it turns out, upon a challenge to the issue of the certificate, there was nothing Mr Allen or any other member of the public could do that would adversely affect the rights of the parties to the Agreement and, in particular, prevent performance of the Agreement and the construction of the Project. Further, if there be any doubt about the matter, we note that by an Agreement dated 4 March 1996, to the production of which no objection was taken, the parties to the Agreement agreed that conditions precedent to the Agreement, including that in clause 2.7(d)(iii), had either been satisfied or waived. It follows that by the time Mr Allan sought review of the DAA's decision on 13 March 1996, the relevant condition precedent was to be regarded as satisfied or waived.

54 The decision which Mr Allan seeks to have reviewed is not whether the City Link Project should proceed. No doubt, at least before he moved, Mr Allan had an interest in that question. He claimed that the Project, if constructed, or at least that part of it as constituted the extension of the Tullamarine freeway, affected his amenity of life. But in our view that is an interest which is too remote from the decision he seeks to review, just as the interest of the Foundation in the Conservation Foundation case was too remote from the exchange control decision, and in McHattan the interest of the customs agent in avoiding being sued for negligent advice was too remote from the decision of customs on the applicability of certain tariff classifications. Similarly, in Alphapharm, the interest of a pharmaceutical company in opposing the introduction into the market of a competitor's drug was not sufficiently proximate to the decision to permit registration of the drug under the Therapeutic Goods Act 1989 (Cth).

55 We would, however, reject the submission of counsel for Transurban that standing can be considered by reference only to the object, scope and purpose of the legislation under which the decision is made, and in particular by reference to the persons whom the legislature has directed be notified of the decision. It is correct to say that the object, scope and purpose of the legislation will be relevant in determining the question of standing It is not correct to say that it is the only matter which is relevant. With respect it is also not correct to say that the learned primary judge gave no or no sufficient consideration to the object, scope and purpose of the DAA Act.

56 We would agree with the previous Full Court that the failure of the legislature to require notice to be given of the decision to grant certificates under the DAA Act (other than to the Commissioner of Taxation) gives no support to the submission that only the Commissioner of Taxation could be affected by a decision to grant certificates and have standing to review that decision. The Explanatory Memorandum to the Bill which introduced the system of certificates refers to a review of a decision not to issue certificates to an applicant. But this does not require the conclusion that the only review which Parliament contemplated was review of a decision not to issue certificates.

57 Nevertheless, the previous Full Court decision cannot stand. We agree with Mansfield J, whose decision was reversed, that Mr Allan was not a person affected by the decision of the Authority to issue certificates for the infrastructure borrowings of Transurban and accordingly lacked standing to apply to the Tribunal for review of the Authority's decision. This being the case it is unnecessary for the Court to consider the other issues raised in the appeal. However, in deference to the argument before us we would comment shortly upon them.

Should standing be considered only as at the time of application

58 Section 27 of the AAT Act provides for the initiation by application of reviews by the Tribunal. It provides as follows:

"Where this Act or any other enactment provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons ... whose interests are affected by the decision."

59 It is evident from the use of the present tense in s 27 that a person making an application to the Tribunal for review of an administrative decision must at the time of application be a person whose interests were at that time still affected. It may be possible to argue that the conferral of a right of review on a person who, at the time reconsideration of the Authority's decision under s 119(1) of the DAA Act was sought, was a person affected by the decision, suffices to make the person a person affected by the decision for the purposes of the AAT Act. That proposition is not self evident. It would be strange if, circumstances having changed, the Tribunal would be required to conduct a review where at the time an application was made to it, the interest the person had at the time the decision was made and first challenged had disappeared. The more logical construction of s 27 of the AAT Act is that the question of standing would have to be tested at the time the application is made to the Tribunal, so that if there is a change of circumstances there is no accrued right which requires to Tribunal to disregard that change of circumstance.

60 The question here is whether, if the change of circumstances arises after the date of application but before hearing or decision, the Tribunal must continue with the review on the basis of an accrued right conferred either by s 27 of the AAT Act alone, or in combination with s 119 of the DAA Act.

61 There is little assistance to be obtained from s 31 of the AAT Act. That section provides that if necessary the issue of standing is to be decided by the Tribunal and:

"If the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive." (emphasis added)

It might, perhaps, be possible to argue that the word "are", also in the present tense, shows that standing must subsist from the time the decision is challenged to the time the Tribunal makes its decision. However, it is more likely that the tense does no more than reflect the issue whether the person applying is a person affected.

62 The learned primary judge advanced the view that the question of standing was one to be determined as at the date of application and only then. However, his Honour suggested that if, by reason of a change of circumstances, the matter was "moot" at the time of hearing, then the application would be dealt with under s 42B of the AAT Act. In reaching this conclusion his Honour referred to decisions of United States Courts on the question of judicial power, the decision of the Tribunal in Re Williams and Australian Electoral Commission and decisions of this Court in Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 118 ALR 527 and Broken Hill Pty Co Ltd v Trade Practices Tribunal [1980] FCA 91 ; (1980) 31 ALR 401 .

63 In United States Parole Commission v Geraghty [1980] USSC 50; 445 US 388 (1980) Justice Blackmun, delivering the judgment of the Supreme Court of the United States, referred to the distinction between standing and mootness. The constitutional requirement (replicated in Chapter 3 of the Australian Constitution) that the exercise of federal judicial power requires the existence of a controversy requires that a party invoking the jurisdiction must have a personal stake in the outcome. His Honour continued at 397:

"The `personal-stake' aspect of mootness doctrine also serves primarily the purpose of assuring that federal courts are presented with disputes they are capable of resolving. One commentator has defined mootness as `the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).' Monaghan, Constitutional Adjudication: The Who and When, 82 Yale LJ 1363, 1384 (1973)."

64 There is a danger, as the learned primary judge saw, in approaching the position of an administrative tribunal from the standpoint of the constitutional requirement that judicial power involves the resolution of a controversy, the existence of a "matter" in the language of the Constitution. The question is one of construction of the AAT Act itself.

65 The decision in Williams is more to the point. That case involved an application to dismiss proceedings before the Tribunal on the basis either that the applicant had no standing under s 27 of the AAT Act, or that the proceedings were frivolous and vexatious and should be dismissed under s 42B. The Tribunal was of the view that at the time he brought the application Mr Williams had an interest which was affected by the disputed decision. However, that interest was an interest relating to a possible future event, and by the time of the hearing the possibility of that event happening had ceased to exist. The Tribunal regarded the question to be resolved by it as being:

"...whether a person who had standing under the AAT Act to apply for review of a disputed decision should be entitled to maintain the proceedings notwithstanding that the underlying interest had ceased to exist."

66 The Tribunal resolved the issue by dismissing the proceedings under s 42B of the AAT Act, rather than by deciding the question whether standing had to be sustained throughout the proceedings. In practice it made no difference to the result which would follow. As their Honours observed at 374, because the applicant's interest which gave him standing had long ceased to exist, there was no legitimate interest in his pursuing the application further and accordingly the proceedings should be dismissed as vexatious, notwithstanding that there was an arguable basis for challenging the decision. However, the decision could be seen as supporting the view that the question of standing is to be determined only at the outset of the application and that thereafter, if the matter is to be dismissed, it is because it has become frivolous or vexatious.

67 There are comments in Queensland Newsagents by Spender J which support the view that the question of standing may be examined not only as at the time the application is commenced, but if relevant, at a later time. So, his Honour said at 535:

"With some diffidence, it seems to me that the question of standing has initially to be addressed at the time of the institution of the proceedings. If at that time, the circumstances are such that the initiating party is a party aggrieved, that party is not disabled from contesting the proceedings merely by statements or expressions by another party tending to modify the existence or basis of `aggrievement' in the initiating party. I accept that, if during the course of a hearing before the tribunal it emerges that an applicant in truth may not have a `sufficient interest', or if in the course of an application in the Federal Court, in truth an applicant may not be a party aggrieved, the locus standi of that party can be reviewed: see the observations of Bowen CJ in Broken Hill Pty Ltd v Trade Practices Tribunal [1980] FCA 91 ; (1980) 31 ALR 401 ; 47 FLR 384 at 395."

68 The decision of Bowen CJ in Broken Hill was not thought by the learned primary judge to support the proposition for which Spender J cited it. What the learned Chief Justice appears to be referring to in Broken Hill is locus standi being determined provisionally at the commencement of a Tribunal hearing and a subsequent determination of the issue when all relevant facts are before the Tribunal. In the circumstances of that case the subject matter of the proceedings before the Tribunal had become moot and the proceedings futile because the very acquisition which the applicant wanted the Tribunal to review had been completed. Hence at the very outset of the review the Tribunal had no controversy to determine and the applicant for review no sufficient interest.

69 It is unnecessary to determine the issue for the obvious reason that whether standing is conclusively determined at the time of review but the application becomes vexatious if circumstances change, or whether standing may be reconsidered if circumstances change, the result is the same. The proceedings will be dismissed. In the present case had we been of the view that Mr Allan did have standing at the time of instituting the application to the Tribunal for review, we would have been of the view that, had circumstances changed to take away from him the interest in the proceedings he had at the time of application, his application should be dismissed.

Whether the change in circumstances affected Mr Allan's standing

70 The learned primary judge was of the view that the change in residence would not, in any event, have led to the conclusion that Mr Allan had ceased to have standing assuming it was accepted that he had moved as a result of the threat to his amenity caused by prospective road widening, and that the move had in fact cost him money.

71 Although it is, in the view we take, unnecessary to decide this issue, we have doubts as to the correctness of this conclusion. If an interest in stopping the Project from going ahead gave Mr Allan an interest in challenging the decision to issue the certificates, it does not follow that the fact that Mr Allan had moved or had suffered the cost of the move gave him a continuing interest. The matter turns really on the connection between the subject matter of the review (and the outcome of it) and the claimed interest. Even if Mr Allan had incurred costs in moving, the outcome of the review considered by reference to the Project could never compensate him for that, or affect either the fact that he had moved or the expenditure that he had outlaid. In these circumstances, it is difficult to see that once he had moved he had an interest in the challenge to the decision to issue the Certificate, even if that is equated to an interest in the Project itself.

72 In our view the decision appealed from should be set aside and in lieu thereof it should be ordered that the Respondent's appeal from the decision of the Tribunal be dismissed with costs.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Dated: 10 December 1999