Case: Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168
Outcome: cited
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). 43 The nature of the complainant's interest was expressed slightly differently by Gibbs CJ in Koowarta 153 CLR at 183 where his Honour said: The words "person aggrieved" have appeared in many statutes, English and Australian, and their meaning has been discussed in many cases. In the end of course the meaning of the words must depend on the context of the particular statute. It has often been said that the words connote a person with a legal grievance: see In Re Sidebotham (1880) 14 ChD 458 at 465; Buxton v Minister of Housing and Local Government (1961) 1 QB 278 at 285 .The cases under the Trade Marks Acts to which we were referred are consistent with that view; they suggest that a person is "aggrieved" by an act which operates in restraint of what would otherwise have been his legal rights: Powell v Birmingham Vinegar Brewery Co (1894) AC 8 at 10, 12; Attorney-General (NSW) v Brewery Employee's Union of NSW [1908] HCA 94 ; (1908) 6 CLR 469 at 497, 519, 550; Continental Liqueurs Pty Ltd v GF Heublein and Bro Inc [1960] HCA 37 ; (1960) 103 CLR 422 at 427... (I)n determining the meaning of the expression "person aggrieved" in s 24 of the Act it is necessary to have regard to the remedies which such a person may obtain under s 25. These include damages in respect of loss suffered by the person aggrieved by the relevant act and loss of dignity by, humiliation to, or injury to the feelings of, a person aggrieved by the relevant act. If the refusal of consent proves to have been unlawful, Mr Koowarta may be able to obtain damages of that kind. In all these circumstances it seems to me that he is a "person aggrieved" and entitled to maintain the proceedings. 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. 46 Seventh, to the extent that the respondent submits that, as a general proposition, a body corporate cannot be an aggrieved person in the context of this scheme, I do not accept that submission. As noted by Mason J in Koowarta 153 CLR at 236 in considering the issue of standing under the Racial Discrimination Act 1975 (Cth) (in its then form): By virtue of s 22(a) of the Acts Interpretation Act 1901 (Cth) a reference in a statute to a "Person" includes a reference to a body corporate, unless a contrary intention appears. It is submitted that because, generally speaking, human rights are accorded to individuals, not to corporations, "person" should be confined to individuals. But, the object of the Convention being to eliminate all forms of racial discrimination and the purpose of s 12 being to prohibit acts involving racial discrimination, there is a strong reason for giving the word its statutory sense so that the section applies to discrimination against a corporation by reason of the race, colour or national or ethnic origin of any associate of that corporation. 54 As the cases have shown, it is possible that a body corporate can be the subject of racial discrimination where the association is the subject of discrimination by reason of the race, colour or national or ethnic origin of any associate of that corporation: Scully 79 FCR 537 and Koowarta [1982] HCA 27 ; 153 CLR 168. Similar principles potentially apply in relation to a body corporate which claims discrimination as a result of conduct in breach of the DD Act . So, for example, if an incorporated association representing disabled people was refused a lease of accommodation because of the objects of the association and the attributes of its members, it is arguable that the association itself would be a "person aggrieved" by that conduct. However as Mr Fleming submitted, it is more difficult to establish that the applicant, an incorporated association, is a person aggrieved within the meaning of the HREOC Act and the DD Act where the applicant is complaining about a breach of disability standards associated with accessing public transport.