Argos Pty Ltd v Minister for the Environment and Sustainable Development

The High Court has partly allowed an appeal from the ACT Court of Appeal on whether corporate appellants have standing to bring an application under the s 5(1) of the Administrative Decisions (Judicial Review) Act 1989 (ACT). Argos and several other local businesses sought to appeal the Minister’s decision to approve the consolidation of several blocks of land to allow the development of a supermarket. The ACTCA upheld the decision of the trial judge that the businesses lacked standing on the basis that they were not ‘persons aggrieved’: the increased competition that might affect their profitability was not sufficient to give them standing.The ACTCA agreed with the trial judge that applying the ‘person aggrieved’ test started with the recognition of a ‘general rule’ that ‘mere detriment to the economic interests of a business will not give rise to standing’. Nor could the applicants show standing as a community organisation: it included only five persons, was incorporated the day before it made representations on the proposed development, its membership remained static until early 2012, and there was no evidence that it conducted any community activities or meetings to discuss the proposal. (Note that s 3B was repealed in 2013 and has been replaced by an ‘eligible person’ test in s 4A.)

The Court unanimously allowed the appeals by two businesses holding that they were persons aggrieved. By majority (Gageler J dissenting) dismissed the appeal by the first appellant, the landlord of one of the businesses, on the basis that the landlord was not a person aggrieved. In three separate judgments (French CJ and Keane J, Hayne and Bell JJ, and Gageler J) the Court rejected the ACTCA’s invocation of a ‘general rule’, concluding that it did not have any basis in the wording of the section, but instead the focus should be on the connection between the decision made and the interests that may be adversely affected: ‘the central notion … is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from (‘beyond’) its effect on the public at large’ (Hayne and Bell JJ at [61]).

French CJ and Keane J approached the aggrieved requirement first through economic interests: while the planning regime and general law do not support an ‘interest’ in protection from competition, the second and third respondents demonstrated they would suffer a reduced turnover as a result of the decision, and if they could successfully challenge that decision, then any competitive pressures that would have resulted from it could be described as ‘unfair competition’ (at [35]). The first appellant could not show that the second appellant’s business would fail due to the increase in competition, and thus would not lose a benefit from the decision (see [36]). French CJ and Keane J also held that evidence of losses that would be suffered meant no further inquiry into directness, remoteness or proximity was required (at [40]) and that the criteria for standing did not alter depending on the scope and purpose of the Act under which the decision was made (see [41]ff).

Hayne and Bell JJ held that the Act was relevant, and would assist in deciding whether there is a relevant and sufficient connection between the decision, the applicant’s interests and the asserted effect on the applicant’s interests so as to make the applicant a ‘person aggrieved’ (at [68]). Because the relevant Act (the Planning and Development Act 2007 (ACT)) was concerned with sustainable development and the general commercial health of the ACT, a claim of adverse economic effect to an individual would not be irrelevant to pursuing those general objectives (at [73). The second and third appellants alleged that they would lose up to ten percent of their profits and were persons aggrieved; the first appellant was not a person aggrieved because it only might stand to lose turnover only if the second appellant went out of business.

Gageler J took a broader view of adverse economic effect, noting that the appeal turned, in his opinion, on ‘on the sufficiency of the evidence to show that particular economic interests of the appellants were adversely affected by the decision’ (at [87]). The reduction in revenue of the second and third appellants clearly met this requirement, and the effect on the first appellant was ‘not a matter of mere speculation’ because the reduction in turnover also posed a real risk to the first appellants’ interests (see [91]).

High Court Judgment [2014] HCA 50  10 December 2014
Result Appeal of first appellant dismissed; Appeal of second and third appellants allowed
High Court Documents Argos
Full Court Hearing [2014] HCATrans 224  10 October 2014
Special Leave Hearing [2014] HCATrans 101 16 May 2014
Appeal from ACTCA [2013] ACTCA 51 29 November 2013
Trial Judgment, ACTSC
[2012] ACTSC 102 6 July 2012