Case: Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27
Outcome: cited
Defining private rights for this purpose is a distinct challenge (note Heydon JD "Injunctions and Declarations" in Stein LA (ed) Locus Standi (Law Book Company, 1979) at 38-39). Traditionally they have included proprietary and financial interests (Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Nicholson J in Allan v Development Allowance Authority (1998) 80 FCR 583 at 598). The distinction between rights which are "private rights" enabling commencement of proceedings by way, for example, of declaratory and injunctive relief, and "public rights" the enforcement of which lay at the feet of the Attorney-General, has however blurred over time to permit individuals to bring proceedings where the individual suffers special damage peculiar to himself or herself from the interference with the public right: Boyce [1903] 1 Ch at 114. Although this principle has received recognition in Australian law note for example comments of Gavan Duffy CJ, Starke and Evatt JJ in Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50 at 52; Mason J in Robinson v Western Australian Museum (1977) 138 CLR 238 at 327; Australian Conservation Foundation 146 CLR per Gibbs J at 526-527, Stephen J at 537-538 and Mason J at 547; Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 per Gibbs CJ at 35-36, Davis [1986] HCA 66 ; (1986) 68 ALR 18; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia [1995] HCA 11 ; (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority 80 FCR per Wilcox J at 586-87, Nicholson J at 598 giving effect to the principle raises difficulties in itself. (A useful summary of cases, and difficulties of application of relevant principles, as existed at the time can be found in Heydon in Stein (1979) at 38-40, 45-54.) 41 Third, in order for a person to be "aggrieved" the test is objective, not subjective. A person does not qualify merely because he or she feels aggrieved by the conduct. He or she, in the judgment of the Court, must, in truth, be aggrieved by that conduct ( Cameron v Human Rights and Equal Opportunity Commission 46 FCR at 515) and not merely have an intellectual or emotional concern in the subject matter of the proceedings ( Australian Conservation Foundation 146 CLR at 547-548). The words do not include "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": Attorney-General (Gambia) v N'Jie [1961] AC 617 at 634, Gibbs CJ in Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168 at 185. It is not sufficient that a person voices a particular concern and regards the actions of another as injurious to the object of that concern (Stephen J in Australian Conservation Foundation 146 CLR at 539, Gibbs CJ in Onus v Alcoa of Australia 149 CLR at 37). 44 Fifth, traditionally the term "person aggrieved" should not be interpreted narrowly: N'Jie [1961] AC at 634 , Koowarta 153 CLR at 185, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437; Ogle v Strickland (1987) 13 FCR 306 (especially Fisher J at 307-308 and Lockhart J at 314-315). Further, as Gibbs CJ said in Onus v Alcoa of Australia Ltd 149 CLR at 36 in relation to whether a person has a "special interest" sufficient to sustain litigation, The rule is obviously a flexible one since, as was pointed out in [ Australian Conservation Foundation ], the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.