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Standing: The Role and Evolution of the Test

Published online by Cambridge University Press:  24 January 2025

Margaret Allars
Margaret Allars*
Affiliation:
Faculty of Law, The University of Sydney
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Extract

Procedure is at the heart of administrative law, just as it is at the heart of public administration. The development of administrative law is rooted historically in questions of the availability of remedies, and the related question of standing. Delivering the Second Reading Speech for the Administrative Decisions (Judicial Review) Bill 1977 in the House of Representatives, Mr Ellicott QC said -

The present law relating to the review by the courts of administrative decisions is in a most unsatisfactory state. A great deal has been written about the shortcomings of the present procedures and it is not, I think, necessary for me to elaborate on these deficiencies in the present context. The law in this area is clearly in need of reform - indeed, it could be said to be medieval - and simplification and to be put into statutory form. What the present Bill seeks to do is to establish a single simple form of proceeding in the Federal Court of Australia for judicial review of Commonwealth administrative actions as an alternative to the present cumbersome and technical procedures for review by way of prerogative writ, or the present actions for a declaration or injunction.

Type
Research Article
Information
Federal Law Review , Volume 20 , Issue 1 , March 1991 , pp. 83 - 110
Copyright
Copyright © 1991 The Australian National University

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Footnotes

This is a revised version of a paper on standing and remedies presented at the Conference “Ten Years of the Federal Administrative Decisions (judicial ReView) Act” in September 1990, containing an expanded discussion of the topic of standing and omitting the analysis of remedies except insofar as 1l bears upon the topic of standing.

References

1 H Reps Deb 1977, Vol 1-1105, 1394 (28 April 1977).

2 Federal Court of Australia Act 1976 (Cth); ADJR Act s 8.

3 “General law” means judicial review in the inherent supervisory jurisdictions of the State and Territory Supreme Courts, in the High Court's original jurisdiction under the Commonwealth Constitution s 75(v) and in the Federal Court under the Judicary Act 1903 (Cth) s 39B.

4 ADJR Act ss 8, 9.

5 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 6(1).

6 See Judiciary Act 1903 (Cth) s 39B(2).

7 Ibid s 44(1); State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 154 CLR 579, 583.

8 The exclusion of State jurisdiction, under ss 8 and 9 of the ADJR Act, left some lacunae due to the drafting of s 9(l)(d), and is now affected by the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth): see Clamback and Hennessy Ply ltd v Commonwealth (1985) 62 ALR 233, 238; M Allars, Introduction to Australian Administrative law (1990) paras 2.94-2.95, 2.116, 3.27-3.30.

9 See generally, M Allars, supra n 8, paras 2.65-2.69, 2.94-2.95.

10 See eg MahoMy v Dillon (1987) 71 ALR 395.1

11 Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, Repon No 32 (1989).

12 Federal Court Rules O 54A r 3(2), Fonn 56.

13 (1990) 170 CLR 321.

14 Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441, 449.

15 The general law test of whether there is a “serious question” to be tried, followed by a determination of the balance of convenience, is stated by the High Court in Australian Coarse Grain Pool Pty Ltd v Barley Mar ting Board of Queensland (1982) 46 ALR 398, Tableland Peanws Pty Ltd v PeanUI Marketing Board (1984) 52 ALR 651 per Brennan J, A v Hayden (No I) (1984) 56 ALR 73, and Casllemaine Tooheys Lid v Sowh Australia (1986) 161 CLR 148. It is followed by the Federal Court in relation to the ADJR Act s 15 in Dallikavak v Minister for Immigration and Ethnic Alf/airs (1985) 61 ALR 471 per Northrop and Pincus JJ, Jenkinson J contra.

16 For examples in review at general Jaw see Castlemaine Tooheys Ltd v Stale of South Australia (1986) 161 CLR 148, 153-4; Australian Coarse Grain Pool Ply ltd v Barley Mar ting Board of Queensland (1982) 46 ALR 398; Murphy v lush (1986) 65 ALR 651. For examples in relation to the ADJR Act s 15 see Collins v Minister for Immigration and Ethnic Affairs (No 2) (1982) 5 ALO 32, 33; Gaillard v Minis/er for Immigration and Ethnic Affairs (1983) 5 ALN N2S per Lockhart J; Gonaseelan v Minister for Immigration and Ethnic Affairs (198S) 7 ALN Nl68 per Morling J; Dallikavak v Minister for Immigration and Ethnic Affairs (198S) 61 ALR 471, 481 per Jenkinson J; Videto v Minister for Immigration and Ethnic Affairs (198S) 8 ALN N237 per Toohey J; Perkins v Cwhill (1981) 34 ALR 669 per Keely J; Aboriginal Development Commission v Ralkon Agricullural Co Pty Ltd (1987) 74 ALR 50S, 509-10; Morton v Radford (198S) 61 ALR 414, 416.

17 Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637, 644; Minister for Immigration, local Government and Ethnic Affairs v Taveli (1990) 94 ALR 177.

18 See Waumaster Alcoa Ply ltd v Bu11on (1986) 70 ALR 330; Minister for Immigration, Local Government, and Ethnic Affairs v Taveli (1990) 94 ALR 177 184 per Davies J and 200 per French J; Dornan v Riordan (1989) 19 ALD 18S, rev'd (1990) 21 ALD 2S5; Minister for Immigration and Ethnic Affairs v Conyngham (the Platters case) (1986) 68 ALR 441, 448.

19 ADJR Act s 3(1),(2),(3),(S), Schedule 1.

20 See the discussion by Wilcox Jin, Conyngham v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 423, 439Google Scholar of the reason why relief under s 16(1)(c) of the ADJR Act was not available in Pearce v Button (1986) 65 ALR 83. Cf now Turner v Owen (1990) 96 ALR 119.

21 See the discussion by Gummow J, in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73, 80Google Scholar.

22 R v Electricity Commissioners; ex parte London Electricty Joint Committee Co (1920) Ltd [1924] 1 KB 171.

23 See cases discussed in Part 3 of this article.

24 Ex parte Helena Valley Boya Association (Inc); State Planning Commission and Beggs (1989) 2 WAR 422 at 434 per Ipp J.

25 Law Reform Commission, Standing in Public Interest Litigation, Report No 27 (1985), but subject to some exceptions, ibid para 269.

26 Application to be made a party to an application may be made by a person interested, under s 12 of the ADJR Act. The Court has a discretion to grant the application for joinder: ADJR Act s 12(2); Accident Insurance Mututal Lid v Trade Practices Commission (1983) 51 ALR 792; United States Tobacco Co v Minister for Consumer Affairs (1988) 82 ALR 509, rev'd 83 ALR 79.

27 ADJR Act s 3(1),(2),(3),(5), Schedule 1.

28 (1981) 36 ALR 64.

29 Ibid, 79.

30 (1980) 146 CLR 493 (ACF case). See eg the decision of Fisher and Lockhan JJ in Ogle v Strickland (1987) 71 ALR 41. See also K M Mack, , “Standing to Sue under Federal Administrative Law” (1986) 16 Fed L Rev 319CrossRefGoogle Scholar.

31 Robinson v Western Australian Museum (1977) 138 CLR 283, 302-3; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 38, 57, 76.

32 (1981) 149 CLR 27.

33 Ibid 76.

34 R v Inland Revenue Commissioners; ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 645, 649, 656, 727 (Fleet Street Casuals Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 38, 57, 76; Administrative & Clerical Officers Association v Conn (1988) 52 NTR 57, 63, 71. Cf Central Queensland Speleological Society Incorp v Central Queensland Cement Pty Ltd (No 1) (1989) 2 Qd R 512 (per Thomas J, contra Derrington and de Jersey JJ). See generally M Allars, , supra n 8, para 6.158Google Scholar.

35 See eg Fowell v Loannou (1982) 43 ALR 415, 45 ALR 491 (the issue being decided m favour of the applicant at first instance; adversely to him on appeal to the Full Federal Court; and the High Court appeal, Loannou v Fowell (1984) 156 CLR 328, being confined to the issue of justiciability); Australian Broadcasting Commission S1aff Associa1ion v Bonner (1984) 54 ALR 653; Vangedal-Nielsen v Smith (Commissioner of Patents) (1980) 33 ALR 144.

36 Eg Canberra Labour Club Ltd v Hodgman (1982) 47 ALR 781.

37 Eg Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64; Ralkon Agricultural Co Ply Ltd v Aboriginal Developmenl Commission (1982) 43 ALR 535.

38 ADJR Act s 13(4A)(b).

39 ADJR Act ss l l(l)(c), (3)-(5). Eg, Ricegrowers Co-opera1ive Mills Ltd v Bannerman and Trade Practices Commission (1981) 38 ALR 535; Australian Institute of Marine and Power Engineers v Secretary, Deparlmenl of Transport (1986) 71 ALR 73; Ralkon Agricultural Co Ply ltd v Aboriginal Development Commission (1982) 43 ALR 535.

40 In Toohey's case the applicant was affected indirectly by the challenged determination of the Minister's delegate, who had refused to apply an item of the Second Schedule of the Customs Tariff. The company which had imported the goods on behalf of the applicant had paid the duty and been reimbursed by the applicant. Had the delegate made a favourable determination, refunding duty to the importing company, the latter would probably have had an obligation to refund duty to the applicant. Thus, in the event of a favourable determination, the applicant would have had “a serious and not a frivolous claim” against the importing company for the refund to be passed on to it. Since successful judicial review culminating in an order setting aside the determination, followed by a refund, would trigger such a claim, the applicant was a “person aggrieved”.

41 (1981) 36 ALR 64, 79.

2 (1982) 42 ALR 283.

3 Law Reform Commission, supra n 25, paras 33, 34; P Cane, , “The Function of Standing Rules in Administrative Law” (1980) PL 303Google Scholar. But cf P Cane, , An Introduction to Administrative Law (1986) 156-7CrossRefGoogle Scholar where Cane queries the reason for the distinctiveness of the issue in public law actions, but seeks to explain it.

4 PP Craig, , Administrative Law (2nd ed 1989) 368-70Google Scholar.

5 See eg, J Beatson, “'Public' and 'Private' in English Administrative Law” (1987) 103 LQR 34; P Cane, “Public Law and Private Law: A Study of the Analysis of and Use of a Legal Concept” In Eekelaar and J Bell (eds), Oxford Essays in Jurisprudence (3rd series 1987).

46 Dunlop Pneuma1ic Tyres Co Lui v Selfridge & Co Lui [1915] AC 847, 853.

47 JG Fleming, , The law of Torts(7th ed 1987) 40-41Google Scholar.

48 Ibid 385-6.

49 Ibid 381-5.

50 RP Meagher, WM C Gummow, , Jacobs' law of Trusts in Australia (5th ed 1986) paras 2203, 2303-7Google Scholar.

51 HA J Ford, , Principles of Company (1990) Ch 17Google Scholar.

52 In relation to lhe torts of private and public nuisance, see Environmental Planning and Assessment Act 1979 (NSW) ss 98, 123; W L Morison and C Sappideen, Torts: Comme111ary and Ma1erials (7th ed 1989) 758-64. In relation to actions by persons whose interests are affected directly or indirectly by decisions of trustees, see Trusts Act 1973 (Qld) s 8(1), Trustees Act 1962 (WA) s 94(1). In addition, the court may on lhe application of lhe Attorney-General, in appropriate cases appoint a receiver to a charitable trust: R P Meagher and WM C Gummow supra n 50, para 2305. In relation to personal actions against company directors, see H A J Ford, supra n 51.

53 H Luntz, , A D Hambly, RA Hayes, , Torts: Cases and Commentary (2nd ed 1985) 887-91Google Scholar; Ford, H A J, supra n 51 para 1438Google Scholar.

54 Australian lnstilule of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73, 80-1 per Gummow J.

55 [1903] 1 Ch 109. Boyce's case itself was a public nuisance case and so were the cases cited by Buckley J. See Neville Nitschke Caravans (Main North Road) Ply ltd v McEntee and McEntee (1976) 15 SASR 330, 340 per Bray CJ; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 71 per Brennan J; We111wor1h v Woollahra Municipal Council (1981) 149 CLR 672, 679-81; S M Thio, Locus Slandi and Judicial Review (1971) 172-3; P Cane, supra n 43, 314.

56 (1980) 146 CLR 493, 527, 530.

57 (1981) 149 CLR 27.

58 Ibid, 71.

59 Damages are not available in judicial review at general Jaw for administrative error but there is a limited scope for seeking damages in tort, as in an action for misfeasance in public office: Macksville & Dislricl Hospi1al v Mayze (I 987) 10 NSWLR 708. Nor are damages available under the ADJR Act: Park Oh Ho v Minister for Immigralion and Ethnic Affairs (1989) 167 CLR 637. But the Federal Court may have jurisdiction to consider a damages claim in its accrued, associated or cross–vested jurisdiction: Park Oh Ho case, id; Kumar v Minisler for /mmigralion, Local Governmenl and Ethnic Affairs (1991) 100 ALR 439, 445; Chan Yee Kin v Minisler for Immigration, Local Governmenl and Ethnic Affairs (unreported, Federal Court, Einfeld J, 9 August 1991). See also supra n 16.

0 The argument could be pursued further by consideration of private law actions other than public nuisance, or by analysis of the notion of the “public interest” at stake in public law actions.

1 (1980) 146 CLR 493, 510-11, 530.

2 (1981) 149 CLR 27, 75-76. See also Administrative and Clerical Officers Association Conn (1988) 52 NTR 57 per Kearney J.

3 The older authorities are discussed in Walsh vs Ervin (1952) VLR 361, 367.

4 (1981) 149 CLR 27, 75.

65 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27.

66 Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374, 408-9 per Lord Diplock; Minister for Arts, Heritage and the Environment v Peko-Wallsend Ltd (1987) 75 ALR 218, 224 per Bowen CJ, 249 per Wilcox J. Despite the High Coun decisions in R v Toohey (Aboriginal land Commissioner); ex parte Northern land Council (1981) 151 CLR 170 and FAI Insurances Ltd v Winneke (1982) 151 CLR 342, extending judicial review to the vice-regal level, the status of the decision maker may still be a lingering factor in relation to Cabinet decisions: cf the Pe!w-Wallsend Ltd case, id, with South Australia v O'Shea (1987) 163 CLR 378.

7 Tasmanian Wilderness Society Inc v Fraser (1982) 153 CLR 270.

8 For recommendations as to how the ADJR Act might incorporate the test of justiciability at general law, see Administrative Review Council,supra n 11, paras 364-380.

9 See generally Administrative Review Council supra n 11.

0 The very definitions of “decision” and “conduct engaged in for the purpose of making a decision” in the Act import a substance/procedure distinction between stages in the administrative decision-making process, according to the majority decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Mason CJ, Brennan and Deane JJ). Toohey and Gaudron JJ, on the other hand, rejected the argument that any such distinction emerged from the definitions of “decision” and “conduct” in the Act: ibid 53-54. But it is not necessary to pursue here the viability of a substance/procedure distinction within the test of justiciability, or whether such a distinction makes sense in public administration.

1 Kioa v West (1985) 159 CLR 550, 619 per Brennan J (similar formulae being given by Mason J at 584, and by Deane J at 632).

72 An example of a coun, access to which is not restricted by a standmg rule, is the Land and Environment Coun in New South Wales: Environmental Planning and Assessment Act 1979 (NSW) s 123. For an example of a standing rule applying to a tribunal see Admmistrative Appeals Tribunal Act 1975 (Cth) ss 27, 30(1 A). For other tnbunals standing may be incorporated in the test of justiciab1lity, say where provision is made for persons subject to adverse decisions of a panicular type to appeal the decision to an internal reviewer or to a specialist tribunal. In the case of some tribunals, such as the Ombudsman, there is no standing rule.

73 R v Eleclricily Commissioners; ex parle London Elec1ric1y Joinl Commillee Co (1920) Ltd [1924] 1 KB 171.

74 (1964) AC 40.

75 O'Reilly v Mackman [1983] 2 AC 237, 279 per Lord Diplock: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 399-400 per Lord Fraser, but these were natural justice cases. See funher M Aronson and N Franklin, Review of Administrative Action (1987) 577-588.

76 Administrative Law Act 1978 (Vic) ss 2, 3. The ambit of that statute is restricted to “tribunals”, which are defined as cenain decision makers which have a duty to observe the rules of natural justice. This requirement is to be satisfied irrespecti'fe of whether the plaintiff seeks to establish a denial of natural justice. Indeed the challenge may be confined to excess of power. It is curious that the elements of the cause of action, namely denial of procedural fairness, should provide the benchmark for determining the question of justiciability or access to a coun. If they do, the position approximates to that from which public law is claimed to be different, the position in private law, where title to sue is said lo merge with the cause of action. For a discussion of the impact upon this test of justiciability of the liberalisaton in Kwa v West (1985) 159 CLR 550 of the test for implication of procedural fairness, see M Allars, supra n 8, paras 3.25-3.26.

77 (1980) 3 I ALR 666.

78 (1990) 170 CLR 321. A full defence of this claim requires analysis of the status of the “no evidence” rule, particularly since the Bond decision, a task which cannot be undenaken here.

79 The codification of grounds of review in ss 5, 6 and 7 of the ADJR Act did not impose new duties upon administrators making decisions reviewable under the Act. Thus, the encapsulation of denial of procedural fairness in ss 5(l)(a) and 6(1)(a), does not of itself impose a duty on administrators to observe procedural fairness where they would not otherwise have had such a duty at common law: Kioa v West (1985) 159 CLR 550.

80 (1985) 159 CLR 550, 621, but note Brennan J's rejection (responding to the approach taken in O'Reilly v Mackman [1983] 2 AC 237, 275), of the legitimate expectation as the true criterion for standing or implication of procedural fairness.See also Jdonz Pty Ltd v National Capital Development Commission (1986) 67 ALR 46, 57-8.

81 (1985) 159 CLR 550, 585.

82 For a later limitation upon the liberalised implication test see Allorney-Genera, (NSW) v Quin (1990) 170 CLR I. For a case concerned with resolving the impact of the implication test upon another principle of administrative law, the no-fettering principle, see Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648. For an amplification of the liberalising effect of Kioa v West (1985) 159, CLR 550, see Annells v McCann (1990) 170 CLR 596.

83 Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 per BylesJ.

84 South Australia v O'Shea (1987) 163 CLR 378.

85 Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 62 ALR 253, affd (19857 ALR 77; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70: Council o Civil Service Unions v Minister for Civil Service [1985] 1 AC 374.

86 Annells v McCann (1990) 170 CLR 59.

87 Cooney v Ku-ring-gai Municipal Council (1963) 144 CLR 582; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 67-68; Coe v Gordon (1983) I NSWLR 419, 425-426; Blyth District Hospital lncorp v Souzh Australian Health Commission (1988) 49 SASR 501; Federal Commissioner of Taxation v Biga Nominees Pty Lid (1988) VR 1006; Yarmirr v Australian Telecommunications Corporation (1990) 20 ALD 562;Yates Security Services Pty Lid v Keating (1990) 98 ALR 68, 78-80.

88 (1988) 82 ALR 509; rev'd (1988) 83 ALR 79. AL first insiance Einfeld J gran1ed AFCO leave 10 participale in 1he proceedings as an amicus curiae. The principles applying to the appearance of amicus curiae were considered by the Full c urt bu1 i1 was no1 necessary 10 decide the issue. The LeSL of sLanding under Lhe ADJR Acl is so liberal, ordinarily the question ought no1 10 arise.

89 (1988) 83 ALR 79, 86-7.

90 Ibid 89, 90.

91 Id.

92 Ibid 90.

93 Id.

94 (1988) 82 ALR 90.

95 Ibid 99.

96 (1988) 83 ALR 79, 90.

97 Maksimovic v Walsh [1983] 2 NSWLR 656; Director of National Parks and Wildlife v Barrill (1990) 21 ALD 758, 761.

98 (1988) 82 ALR 90, 99.

99 (1988) 83 ALR 79, 91, referring to Sinclair v Mining Warden al Maryborough (1975) 132 CLR 473; National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd (1976) 1 VR 592; Australian Conservation Foundation v Environment Protection Appeal Board [1983] VR 385. See also the suppon sought by Pincus J in these principles in Telecasters North Queensland Ltd v Australian Broadcasting Tribunal (1988) 82 ALR 90, 99.

100 As to “process” rights see eg, R S Summers, “Evaluating and Improving Legal Processes - A Plea for 'Process Values"' (1974) 60 Cornell L Rev I.

101 (1975) 132 CLR 473.

102 Law Reform Commission supra n 25.

103 (1987) 71 ALR 41, 56-9; Law Reform Commission, Standing In Public Interest Litigation, Repon No 27 (1985).

104 Ibid 58-9.

105 Ibid 43, 53.

106 (1989) 19 ALO 70.

107 (1981) 149 CLR 27.

108 (1989) 19 ALO 70, 74.

109 Id, relying upon a passage in the judgment of Stephen J in Onus v Alcoa of Australia

lid (1981) 149 CLR 27, 42.

110 The action failed on the substantive point, it not having been established that the Minister misunderstood the nature of his discretionary power under the Australian Heritage Commission Act.

111 For cases at general law see Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 530 per Gibbs J (“I would not deny that a person might have a special interest in the preservation of a particular environment.”); Day v Ping/en Pty Ltd (1981) 148 CLR 289, 299-300; Ex parte Helena Valley!Boya Association (Inc); State Planning Commission and Beggs (1989) 2 WAR 422. An environmental group may be able to establish a special interest on the basis of its proprietary interest in running tours or selling souvenirs in connection with the area under threat of development: Fraser Island Def enders Organisation Ltd v Hervey Bay Town Council [1983) 2 Qd R 72. But c/Central Queensland Speleological Society /ncorp v Central Queensland Cement Pty Lid (No 1) (1989) 2 Qd R 512.

112 Yates Security Services Pty Lid v Keating (1990) 98 ALR 21, 45-6; rev'd on other aspects of the application of the standing test in Yates Security Services Pty Lid v Keating (1990) 98 ALR 68.

113 Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70, 74.

114 nAustralian Conservation Foundation v Forestry Commission (1988) 81 ALR 166, 171 per Burchett J.

115 Kaycliff Pty Lid v Australian Broadcasting Tribunal (1989) 19 ALD 315.

116 See also the sympathy of the courts with regard to costs orders for public interest litigants in appeals from the Administrative Appeals Tribunal 10 the Federal Court: Arnold (on behalf of Australians for Animals)v Queensland (1987) 73 ALR «rl,621-622, 635 (Federal Court); and review in the Supreme Court of ACT: Kent v Cavanagh (1973) 1 AC'IR 43, 55.

117 Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166, 170-171.

118 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; Aldridge v Booth (1988) 15 ALD 540.

119 R II Australian Broadcasting Tribunal, ex parte Hardiman (1980) 144 CLR 13; Our Town FM Pty Lid II Australian Broadcsting Tribunal (No 3) (1987) 77 ALR 609.

120 Kaycliff Pty Lid II Australian Broadcasting Tribunal (1989) 19 ALD 315.

121 Id.

122 Re McHallen and Collector of Customs (NSW) (1977) I ALD 67, 70 per Brennan J (a case concerning standing to seek review before the Administrative Appeals Tribunal, but cited by the Full Federal Court in the ADJR Act case United Stales Tobacco Company v Minister for Consumer Affairs (1988) 83 ALR 79, 89).

123 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 42; Australian Jns1i1U1e of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73, 82.

124 Onus v Alcoa of Australia lid (1981) 149 CLR 27, 42 per Stephen J: Ogle v Strickland (1987) 71 ALR 41, 42 per Fisher J.

125 Australian /ns1i1ute of Marine and Power Engineers II Secretary, Department of Transport (1986) 71 ALR 73, 82 per Gummow J; Broadbridge II Stammers (1987) 76

ALR 339, 341; Australian Foreman Stevedores Association v Crone (1989) 98 ALR

276, 282 per Pincus J.

126 Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73, 82.

127 Australian Foreman Stevedores Association v Crone (1989) 98 ALR 276, 282 per

Pincus J.

128 Tooheys Lid v Minister for Business and Consumer Affairs (1981) 36 ALR 64. See supra text accompanying nn 24 and 36.

129 Vangedal-Nielsen 11 Smith (Commissioner of Pa1e111s) (1980) 33 ALR 144, 147. lndirecmess was a somewhat artificial bar to standing since the licensor company, whose name was identical with that of the patent holder, was probably controlled by the licensor.

130 Canberra labour Club Lid vs Hodgman (1982) 47 ALR 781.

131 (1990) 98 ALR 68, 81, 87, 95-98 (rev'g Yates Security Service Pty Ltd 11 Keating(1990) 98 ALR 21).

132 (1990) 98 ALR 68, 95-7 per Pincus J.

133 (1989) 98 ALR 276.