Case: Boyce v Paddington Borough Council [1903] 1 Ch 109
Outcome: cited
The traditional approach to standing in matters involving the enforcement of statutes was that while interference with private rights could be asserted by individuals, public rights could only be asserted by the Attorney-General representing the public, either in the name of the Attorney or at the relation of some complainant: Boyce v Paddington Borough Council [1903] 1 Ch 109, Gouriet v Attorney-General [1977] UKHL 5 ; [1978] AC 435; Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1 ; (1980) 146 CLR 493, Davis v Commonwealth [1986] HCA 66 ; (1986) 68 ALR 18 per Gibbs CJ at 35-36; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 ; (1998) 194 CLR 247 at 261. As observed by Mason J in Australian Conservation Foundation 146 CLR at 547-8: Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests...and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v Western Australian Museum [1977] HCA 46 ; (1977) 138 CLR 283 at 327-328: "The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another". 24 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.) 27 The respondent made written submissions to the following effect: a. the applicant is doing nothing other than attempting to enforce the public law as enacted by the provisions of the DD Act and the Disability Standards b. there is no right subsisting for the benefit of the applicant or its members personally that is sought to be asserted through this litigation c. the application by the applicant is one to assert the effect of the public law of the Commonwealth and the applicant therefore faces the difficulty in relation to standing as the application is a bare attempt to assert a public right or duty: Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. The applicant has no special interest or private right asserted by the litigation, and there is no statutory basis providing standing in respect of the complaint: Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd [2000] HCA 11 ; (1999) 200 CLR 591 d. no relator action is brought in the name of the Attorney-General at the applicant's request that such proceeding be undertaken: Farley &amp; Lewers Ltd v AG [1963] NSWR 1624 e. this is not a case where the interference with a public right is such that the applicant suffers special damage peculiar to itself from the interference: Boyce [1903] 1 Ch 109 f. the applicant does not have standing to bring the prosecution. Accordingly, the complaint does not disclose a reasonable cause of action and should be struck out: Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. 42 Fourth, the respondent's submissions concerning this issue have substantially equated "person aggrieved" for the purposes of s 46P HREOC Act with principles articulated in Boyce [1903] 1 Ch 109 and the possession by a complainant of a special interest so as to enforce the public rights created by statute. Clearly, there is a different jurisprudential approach entailed by identifying whether rights created by statute are public rights permitting enforcement by an individual in circumstances only where the individual has a special interest, compared with considering legislation authorising a person aggrieved to enforce statutory rights created by the legislation. Nonetheless, it is certainly the case that Courts have explained the words "person aggrieved" in terms of special interest in the public law sense. So, for example, in Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443 at 447, Bowen CJ and Franki J said the words "a person who is aggrieved": ...are not to be confined to those who can establish that they have a legal interest at stake in the making of the decision. In our view they cover a person who can show a grievance which will be suffered as a result of the decision beyond that of an ordinary member of the public. (see Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 per Ellicott J) (cf United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 527, Ogle v Strickland .)