mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: "GS" v News Ltd (1998) Aust Torts Reports 81-466
Outcome: cited
The respondent submits further that as s 32 DD Act provides that contravention of disability standards is unlawful , public rights are created. However the fact that legislation provides that conduct is "unlawful" does not of itself mean that exclusively public rights of enforcement exist in relation to that legislation. There is an extensive body of law which provides that simply because a statute deems that certain actions are required by law, and failure to comply is unlawful even to the extent of prescribing a penalty, it does not mean that personal actions are therefore excluded (note for example comments of Atkin LJ in Phillips [1923] 2 KB 832; Groves v Lord Wimborne [1898] 2 QB 402 especially at 415-416; Britannic Merthyr Coal Company Ltd v David [1910] AC 74; Knox CJ, Isaacs, Gavan Duffy and Rich JJ in Mallinson v The Scottish Australian Investment Company Ltd [1920] HCA 51 ; (1920) 28 CLR 66 at 70-72; Potter v Ferguson [1979] 1 NSWLR 364 at 372; Toohey J in University of Newcastle v Chopra [1989] HCA 27 ; (1989) 85 ALR 321 at 343; Campbell v University of New South Wales (1992) 44 IR 56 at 68-69; Gooley v Westpac Banking Corporation (1995) 129 ALR 628 at 648; "GS" v News Ltd (1998) Aust Torts Reports 81-466 at 64,906). In all cases, notwithstanding the existence of other remedies (such as penalties), whether personal rights of action exist will depend on the construction of the statute itself.
Case: Mallinson v The Scottish Australian Investment Company Ltd [1920] HCA 51 ; (1920) 28 CLR 66
Outcome: cited
The respondent submits further that as s 32 DD Act provides that contravention of disability standards is unlawful , public rights are created. However the fact that legislation provides that conduct is "unlawful" does not of itself mean that exclusively public rights of enforcement exist in relation to that legislation. There is an extensive body of law which provides that simply because a statute deems that certain actions are required by law, and failure to comply is unlawful even to the extent of prescribing a penalty, it does not mean that personal actions are therefore excluded (note for example comments of Atkin LJ in Phillips [1923] 2 KB 832; Groves v Lord Wimborne [1898] 2 QB 402 especially at 415-416; Britannic Merthyr Coal Company Ltd v David [1910] AC 74; Knox CJ, Isaacs, Gavan Duffy and Rich JJ in Mallinson v The Scottish Australian Investment Company Ltd [1920] HCA 51 ; (1920) 28 CLR 66 at 70-72; Potter v Ferguson [1979] 1 NSWLR 364 at 372; Toohey J in University of Newcastle v Chopra [1989] HCA 27 ; (1989) 85 ALR 321 at 343; Campbell v University of New South Wales (1992) 44 IR 56 at 68-69; Gooley v Westpac Banking Corporation (1995) 129 ALR 628 at 648; "GS" v News Ltd (1998) Aust Torts Reports 81-466 at 64,906). In all cases, notwithstanding the existence of other remedies (such as penalties), whether personal rights of action exist will depend on the construction of the statute itself.
Case: Ogle v Strickland (1987) 13 FCR 306
Outcome: cited
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 .) 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.
Case: Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc (2006) SASC 114
Outcome: considered
The decision in Manuka [1998] ACTSC 86 may be further contrasted with, for example, Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc [2006] SASC 114 where Debelle J held that an association of 45 residents in the Whyalla area concerned with environmental issues involving the steel works operated by Onesteel [2006] SASC 114 was nonetheless not a "person interested" for the purposes of the relevant legislation because: It is unable to point to any physical injury or harm. It has no property which is affected by the subject matter of the application. It has no interests of its own which might be affected other than indirectly through those of its members who might be affected. The evidence does not disclose how many of its members are affected. All that is known is that some of its members live, work or own property affected by dust from OneSteel's plant. One possible corollary is that some of its members may not be affected at all. (at [30])
Case: Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832
Outcome: cited
Whether a statute confers upon individuals personal rights and standing to enforce those rights are matters to be determined on the construction of the statute, by reference to the subject, scope and purpose of that statute: Allan v Transurban City Link Ltd [2001] HCA 58 ; (2001) 208 CLR 167 at 174; cf McInerney J in Grand Central Car Park [1969] VR at 74, Kaye and Marks JJ in Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 at 486 and Atkin LJ in Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 841. This case 32 The respondent submits further that as s 32 DD Act provides that contravention of disability standards is unlawful , public rights are created. However the fact that legislation provides that conduct is "unlawful" does not of itself mean that exclusively public rights of enforcement exist in relation to that legislation. There is an extensive body of law which provides that simply because a statute deems that certain actions are required by law, and failure to comply is unlawful even to the extent of prescribing a penalty, it does not mean that personal actions are therefore excluded (note for example comments of Atkin LJ in Phillips [1923] 2 KB 832; Groves v Lord Wimborne [1898] 2 QB 402 especially at 415-416; Britannic Merthyr Coal Company Ltd v David [1910] AC 74; Knox CJ, Isaacs, Gavan Duffy and Rich JJ in Mallinson v The Scottish Australian Investment Company Ltd [1920] HCA 51 ; (1920) 28 CLR 66 at 70-72; Potter v Ferguson [1979] 1 NSWLR 364 at 372; Toohey J in University of Newcastle v Chopra [1989] HCA 27 ; (1989) 85 ALR 321 at 343; Campbell v University of New South Wales (1992) 44 IR 56 at 68-69; Gooley v Westpac Banking Corporation (1995) 129 ALR 628 at 648; "GS" v News Ltd (1998) Aust Torts Reports 81-466 at 64,906). In all cases, notwithstanding the existence of other remedies (such as penalties), whether personal rights of action exist will depend on the construction of the statute itself.
Case: Potter v Ferguson [1979] 1 NSWLR 364
Outcome: cited
The respondent submits further that as s 32 DD Act provides that contravention of disability standards is unlawful , public rights are created. However the fact that legislation provides that conduct is "unlawful" does not of itself mean that exclusively public rights of enforcement exist in relation to that legislation. There is an extensive body of law which provides that simply because a statute deems that certain actions are required by law, and failure to comply is unlawful even to the extent of prescribing a penalty, it does not mean that personal actions are therefore excluded (note for example comments of Atkin LJ in Phillips [1923] 2 KB 832; Groves v Lord Wimborne [1898] 2 QB 402 especially at 415-416; Britannic Merthyr Coal Company Ltd v David [1910] AC 74; Knox CJ, Isaacs, Gavan Duffy and Rich JJ in Mallinson v The Scottish Australian Investment Company Ltd [1920] HCA 51 ; (1920) 28 CLR 66 at 70-72; Potter v Ferguson [1979] 1 NSWLR 364 at 372; Toohey J in University of Newcastle v Chopra [1989] HCA 27 ; (1989) 85 ALR 321 at 343; Campbell v University of New South Wales (1992) 44 IR 56 at 68-69; Gooley v Westpac Banking Corporation (1995) 129 ALR 628 at 648; "GS" v News Ltd (1998) Aust Torts Reports 81-466 at 64,906). In all cases, notwithstanding the existence of other remedies (such as penalties), whether personal rights of action exist will depend on the construction of the statute itself.
Case: Re Adams and the Tax Agents' Board (1976) 12 ALR 239
Outcome: cited
I agree with the submissions of Mr Lenehan for the Commissioner which are in summary: a. the jurisdiction of the Court is enlivened under s 46PO(1) HREOC Act where a "complaint" has been terminated by the President of HREOC b. the complaint must have been a valid complaint for the purposes of s 46P HREOC Act, namely that the complaint was lodged by or on behalf of a "person aggrieved" by the alleged unlawful discrimination c. in accepting the complaint under s 46P, HREOC is not making a determination which is binding on this Court as to whether the complainant is a "person aggrieved" for the purposes of s 46P. As Brennan J observed in Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 242 "It is the court's judgment and not the administrative body's opinion which defines the extent of...its statutory authority" d. it is not the case that whether a complainant is a "person aggrieved" can only be addressed by judicial review of the decision of HREOC to accept the complaint. This is inconsistent with Parliament's intention to create a process for handling discrimination complaints which would be efficient and unburdened by technicality ( Human Rights Legislation Amendment Bill 1998 (Cth) Second Reading Speech, Honourable Daryl Williams, Commonwealth Parliamentary Debates , House of Representatives, 3 December 1998, 1276).
Case: Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443
Outcome: cited
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 .)
Case: Right To Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50
Outcome: applied
Eighth, merely incorporating a body and providing it with relevant objects does not provide it with standing it otherwise would not have had. This point was made clear in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50, particularly by Lockhart J at 67. The Court in that case approved similar comments of Lindgren J at first instance where his Honour said: The applicant submitted that what distinguished it from ordinary members of the public was that it was organised, and since 1984 incorporated, with objects directly related to the subject matter of the decision sought to be challenged. But to accord the status of a "person aggrieved" for no more reason than this would be to elevate form above substance. It would allow individuals who were opposed to a decision, albeit sincerely and for unselfish motives, to acquire standing to challenge it by the procedure of devising an appropriate form of constitution, and if necessary procuring corporate form. It would, for example, distinguish between the unsuccessful Mr Cameron in Cameron v Human Rights and Equal Opportunity Commission noted above and an incorporated association of individuals organised under a constitution with objects of seeking a more equitable allocation of scholarships to Fijians. In my opinion, the issue of standing is not to be foreclosed by such a formal distinction. ( Right to Life Association (NSW) Inc v The Secretary of the Commonwealth Department of Human Services and Health and Family Planning Victoria Inc , unreported, 23 September 1994, para 69) 51 Eleventh, there are a number of cases where incorporated associations have sought to commence proceedings for breach of legislation in the environmental and human rights contexts. Traditionally, courts have tended to apply principles as to standing strictly and have frequently found that such organisations do not have an interest in the litigation, either because the association does not have a special interest in enforcing the relevant public right ( Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Central Queensland Speleological Society v Central Queensland Cement (No 1) [1989] 2 Qd R 512) or because the association is not a "person aggrieved" for the purposes of the relevant legislation ( Right To Life 50 FCR 56, Defence Coalition against RCD 74 FCR at 153). In a number of cases however the Court has held that the relevant association did have standing as a "person aggrieved" ( North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580, National Trust of Australia [1976] VR 592, Manuka [1998] ACTSC 86). Consideration and findings
Case: Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia [1995] HCA 11 ; (1995) 183 CLR 552
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.)
Case: SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229
Outcome: cited
Further, it is clear that legislation may create personal statutory rights which can be enforced by an individual in a Court of law: Wool Sliping and Scouring Co Ltd v Central Wool Committee [1920] HCA 21 ; (1920) 28 CLR 51 per Knox CJ at 61-62; Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 at 76; SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 246, Dajon Investments Pty Ltd v Talbot [1969] VR 603 at 613, Australian Conservation Foundation 146 CLR at 537, 542-544; Re East, ex parte Nguyen [1998] HCA 73 ; (1998) 196 CLR 354. As Stephen J observed in Australian Conservation Foundation 146 CLR at 541, referring to s 52 Trade Practices Act 1974 (Cth): statutes may of course confer standing in express terms...they may also do so by conferring some right the denial of the enjoyment of which gives standing to sue to complain of that denial. Although that very denial might be thought to qualify as the suffering of special damage such as that of which Buckley J spoke, it is, perhaps, preferable in such a case to resolve the question of standing by the direct route of a search for enforceable rights conferred by statute, rather than follow the circuitous course of seeking, in accordance with Boyce's Case, for the existence of special damage. (cf Gibbs J at 532)
Case: Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290
Outcome: cited
The applicant submitted in summary: a. the issue of standing to commence an action under the HREOC Act or the DD Act is to be determined on the proper construction of those Acts, not by reference to provisions of other enactments or common law principles: Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 b. given that the legislation is for the benefit of a burdened class of the public, in the event of ambiguity the legislation should receive a beneficial interpretation: Cooper v Human Rights &amp; Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481 c. contravention of a standard may be cause for complaint under s 32 DD Act d. section 46P(2) HREOC Act defines who may lodge a complaint under the HREOC Act. The section contemplates a complaint by an "aggrieved person" on the basis of "alleged unlawful discrimination" e. the provisions of the HREOC Act and the DD Act make it plain that they confer private rights with respect to "unlawful discrimination" as defined in s 3 HREOC Act f. the proceedings in the Court involve a determination of the allegations of unlawful discrimination as set out in the complaint, and are circumscribed by the complaint which was terminated by the President g. the applicant's complaint concerns ss 31 and 32 DD Act , and the terms of the complaint and the proceedings before the Court raise the issue of a contravention of the Disability Standards h. the HREOC Act operates to allow complaints to be made about non-compliance with the Disability Standards. Section 46P(1) HREOC Act creates a private right to make a complaint based on s 32 i. the material clearly identifies a dispute between the applicant and the respondent, namely the failure on the part of the respondent to comply with the Disability Standards j. Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493 is not relevant in this matter because the High Court found that the provisions of the relevant legislation in that case did not create private rights k. the approach taken by the High Court in Truth About Motorways [2000] HCA 11 ; 200 CLR 591 confirms that the provisions of the HREOC Act and the DD Act permit the applicant to proceed in this Court. 33 Both the applicant and the Commissioner have submitted that in this case the issue of standing is to be determined on the proper construction of the HREOC Act and the DD Act , and not by reference to principles of general law. In my view this is correct. Findings supporting this submission were made by the Full Court in Stephenson v Human Rights and Equal Opportunity Commission 68 FCR at 296 in relation to provisions of the HREOC Act and the Sex Discrimination Act 1985 (Cth) Further, I note observations of the High Court in Allan v Transurban City Link Ltd 208 CLR at 174 that: A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute.
Case: Stokes v Royal Flying Doctor Service [2003] FMCA 164
Outcome: cited
Ms Eastman on behalf of the applicant submitted , inter alia , that: a. the majority of the applicant's constituents are people with disabilities who are resident in the Maryborough and Hervey Bay areas of Queensland, and who have the requisite interest associated with the actions of the respondent in the provision of goods and services within the Hervey Bay area b. the applicant is an aggrieved person within the meaning of s 46P(2) HREOC Act c. HREOC's acceptance of the complaint would indicate that HREOC had accepted that the applicant was a person who could make a complaint for the purpose of s 46P(2) HREOC Act, and the respondent did not challenge that decision by way of judicial review under the ADJR Act d. once a decision was made by the President of HREOC to terminate the applicant's complaint pursuant to s 46PH(1) HREOC Act the applicant became an "affected person" as defined in s 3 HREOC Act. There is no requirement for the purpose of making an application to the Court that the applicant re-establish that it is an aggrieved person after the complaint was accepted by the Commission and investigated by the President. The applicant cites two decisions of the Federal Magistrates Court, Stokes v Royal Flying Doctor Service [2003] FMCA 164 and Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 , in support of this proposition. "Person aggrieved" - relevant principles
Case: Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433
Outcome: cited
Whether a statute confers upon individuals personal rights and standing to enforce those rights are matters to be determined on the construction of the statute, by reference to the subject, scope and purpose of that statute: Allan v Transurban City Link Ltd [2001] HCA 58 ; (2001) 208 CLR 167 at 174; cf McInerney J in Grand Central Car Park [1969] VR at 74, Kaye and Marks JJ in Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 at 486 and Atkin LJ in Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 841. This case