Case: Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited [1998] HCA 49 ; (1998) 194 CLR 247
Outcome: applied
In Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited [1998] HCA 49 ; (1998) 194 CLR 247 ('Bateman's Bay') the first respondent, the Aboriginal Community Benefit Fund Pty Ltd, operated a contributory funeral benefit fund business catering for members of the New South Wales aboriginal community. The second respondent, the Aboriginal Community Benefit Fund No 2 Pty Ltd, operated a contributory life insurance business for members of the same community. The first appellant, the Bateman's Bay Local Aboriginal Land Council, was a body corporate constituted under s 6 of the Aboriginal Land Rights Act 1983 (NSW). Its functions were set out in s 12(1) of that Act. The second appellant, the New South Wales Aboriginal Land Council, was a body corporate constituted under s 22 of the same Act. Its functions were set out in s 23(1) of that Act. There was no power permitting the second appellant to expend monies by providing a subsidy, guarantee or indemnity. By a deed of trust between the first appellant as trustee, the second appellant as guarantor and the State of New South Wales, the New South Wales Aboriginal Land Council's Funeral Contribution Fund was established. The second appellant provided an indemnity to the first appellant in respect of any liability the first appellant might suffer in connection with the New South Wales Aboriginal Land Council's Funeral Contribution Fund. 85 The respondents instituted proceedings in the Supreme Court of New South Wales seeking an order restraining the appellants from carrying on the New South Wales Aboriginal Land Council's Funeral Contribution Fund. At first instance, McLelland CJ in Eq held that the respondents lacked standing to maintain the proceedings. That decision was reversed on appeal to the New South Wales Court of Appeal. The matter was remitted to McLelland CJ in Eq for hearing. His Honour proceeded to make declarations and grant injunctions in the respondents favour. The appellants proceeded to appeal against the decision of the Court of Appeal in respect of standing. Special leave to appeal was granted on the condition that the appellants withdrew their appeal against McLelland CJ in Eq's decision on the merits. The High Court dismissed the appeal in respect of standing, with costs. 86 It held that the public interest in equity may be vindicated at the suit of a party with a sufficient material interest in the subject matter. 87 At [51]-[52], Gaudron, Gummow and Kirby JJ stated their conclusions as follows: '51 ... the use of equitable remedies to ensure compliance by the executive and legislative branches of government with the requirements of the Constitution should not be overlooked. No doubt special considerations may apply in that context, but it would be an odd result if the requirements for standing outside the constitutional sphere were more stringent than within it. Prejudice to a sufficient material interest, such as that in the practice of a profession or occupation, will suffice in constitutional cases. 52 Here, the respondents had an interest in the observance by the appellants of the statutory limitations upon their activities with respect to contributory funeral funds which, as a matter of practical reality, was immediate, significant and peculiar to them. The primary judge found that because the parties would be operating in substantially the same limited market it was highly probable that, if not restrained from commencing and concluding their activities, the appellants would cause severe detriment to the business of the respondents. That, in the circumstances of this litigation, gave the respondents a sufficient special interest to seek equitable relief.' (footnotes omitted) 88 McHugh J also concluded that the appeal should be dismissed. In his reasons he said at [83], [86] and [103]: '83 The enforcement of the public law of a community is part of the political process; it is one of the chief responsibilities of the executive government. In most cases, it is for the executive government and not for the civil courts acting at the behest of disinterested private individuals to enforce the law. There are sometimes very good reasons why the public interest of a society is best served by not attempting to enforce a particular law. To enforce a law at a particular time or in particular circumstances may result in the undermining of the authority of the executive government or the courts of justice. In extreme cases, to enforce it may lead to civil unrest and bloodshed. ... 86 The decision when and in what circumstances to enforce public law frequently calls for a fine judgment as to what the public interest truly requires. It is a decision that is arguably best made by the Attorney-General who must answer to the people, rather than by unelected judges expanding the doctrine of standing to overcome what they see as a failure of the political process to ensure that the law is enforced. ... ... 103 As Australian Conservation Foundation and Onus show, a special interest in the subject matter of the proceedings is sufficient to give standing in a case such as the present. The subject matter of this suit is the legality of the Councils' arrangements setting up the State Fund. The respondents had a special interest in that subject. The allegedly unlawful activities of the appellant affected them financially and to an extent that exceeded the injury to any other individual. Moreover, if the arrangement between the appellants was illegal, the continuing financial injury to the respondents, caused by the arrangement, would be remedied by a grant of the injunction they sought.'