Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50

Administrative law – Judicial review – Standing – Minister approved development application for commercial development – Appellants conducted businesses near site of proposed development – Appellants alleged development would adversely affect their economic interests – Whether appellants are persons aggrieved by the Minister's decision -- Administrative Decisions (Judicial Review) Act 1989.

On 10 December 2014, the High Court handed down its decision in Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50.  The decision concerns the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act), but has wider implications.  As the ADJR Act is based on and mirrors the Administrative Decisions (Judicial Review) Act1977 (Cth) (Commonwealth Act), the decision is relevant to the interpretation of the Commonwealth Act. 

The primary question for the High Court concerned the interpretation of the phrase “person aggrieved”, which previously was contained in s.3B(1)(a) of the ADJR Act and defined to mean: “a person whose interests are adversely affected by the decision".  The ADJR Act has since been amended to delete s.3B, but the relevant test for standing in both Acts essentially remains whether a person’s interests are, or would be, adversely affected – refer to s.4A of the ADJR Act and s.3(4) of the Commonwealth Act.

The facts of the case involved a development proposal for a commercial development, including a supermarket and specialty shops, at the Giralang local shopping centre.  The first appellant was a landlord and the second and third appellants operated rival supermarkets at the Kaleen and Evatt local shopping centres.  Faced with the approval of the development proposal by the ACT Minister for the Environment and Sustainable Development, the appellants sought review of the Minister’s decision on the basis that their interests would be adversely affected as a result of a loss of profit and a loss of trade.

At first instance, the primary judge did not accept that economic interests were enough to give the appellants standing, concluding that increased competition and the effect on their profitability was too remote to make any of the appellants persons aggrieved for the purposes of the ADJR Act.

This was upheld by the Court of Appeal, who characterised the appellants’ claim to standing as “merely concerned with addressing trade competition” and insufficient to satisfy s.3B(1)(a) of the ADJR Act.  The Court of Appeal observed that, as a general rule, mere detriment to economic interests of a business will not give rise to standing.

The High Court, in three separate judgements (French CJ and Keane J, Hayne and Bell JJ, and Gageler J) unanimously rejected the approach of the primary judge and the Court of Appeal.

The High Court referred to the purpose of the ADJR Act and held that the broad language of the standing test under the ADJR Act should not be read down or artificially narrowed.  In deciding whether a person’s interests are, or would be adversely affected, the focus should be on the connection between the decision made and the interests that may be adversely affected: ‘the central notion … is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from (‘beyond’) its effect on the public at large’ (Hayne and Bell JJ at [61]).

The High Court was careful to point out that the test for standing under the ADJR Act is not to allow an expansion or contraction according to the scope and purpose of the enactment under which the relevant decision is made.  It said that to do so would undermine an important purpose of the ADJR Act which is to simplify judicial review processes.

On the question of the directness, remoteness and proximity of the interests asserted to be affected, the High Court affirmed that there will be circumstances in which judgements of fact and degree will be required.  On the particular facts of this case, it was found, on the balance of probabilities, that the two supermarket owner appellants would suffer a not insignificant loss of profitability in their business.  Their losses were found to be immediate and direct enough to give them standing.  The landlord appellant’s interests were different, however.  As there was no finding of fact that the landlord would lose the benefit of its lease – as, on the facts, the tenant supermarket was unlikely to be driven completely out of business – the effect on the landlord’s interests were less immediate and direct and the High Court held that it did not have standing.

The High Court’s decision confirms that economic interests alone may be enough to provide standing to appeal an administrative decision and, for this reason, we expect there may be an increase in the number of administrative appeals, especially by corporate applicants, as a result of the decision.