Canberra Tradesman's Union Club Incorporated and The Licensed Clubs' Association v Commissioner for Land and Planning, Casino Canberra Limited and The Registrar-General [1998] ACTSC 244 (23 June 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   CRISPIN J

  

  

   Application for Approval
of Lease Purpose Clause - whether appellants had
standing to object under s237 of the Land (Planning and Environment) Act -
threat
of further competition in sufficient - relevance of charitable
donations and other activities in the public interest.

  

   Application
for Review by Administrative Appeals Tribunal - whether s276
requires an applicant to be a person who was entitled to object under
s237 -
whether "rights" should be read as "interests" - desire to be protected from
competition and maintain exclusivity of right
to operate poker machines
insufficient - whether amendment retrospective.

  

   Statutory Interpretation - extrinsic material may
be used to confirm or
clarify meaning - not to correct perceived errors in text - statute to be
applied as enacted.

  

   Application
for Prerogative Relief - circumstances in which certiorari and
mandamus may be granted - issues of standing - discretionary considerations.

  

   Application Under Administrative Decisions (Judicial Review) Act - standing
- application for extension of time - whether
relevant matters considered.

  

   Registration of Lease Variation - whether s161 of the Land Titles Act
creates wide discretion
- provision facultative - no cause of action suggested
that might entitle appellants to invoke such a remedy - any reconsideration
of
approval futile.

  

   Land (Planning and Environment) Act 1991

   Casino Control Act 1988

   Liquor Act 1975

   Gaming Machine Act 1987

   Land (Planning and Environment (Amendment) Act (No 2) 1997

   Administrative Appeals Tribunal Act 1989

   Administrative Decisions (Judicial Review) Act 1989

   Evidence Act 1995 (Cth )

   Associations Incorporation Act 1991

   Interpretation Act 1967

   Acts Interpretation Act 1901 (Cth)

   Land (Planning and Environment) (Casino) Regulations of 1992

   Land (Planning & Environment) (Amendment) Act (No 3) 1996

   Land Titles Act 1925

  

   Jewel Food Stores v Minister (1994) 122 FLR 269 at 279, followed

   US Tobacco Co v Minister for Consumer Affairs (1988)
83 ALR 79 at 86,
applied

   Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64,
followed

   Ricegrowers
Co-operative Mills Ltd v Bannerman [1981] FCA 211;  (1981) 38 ALR 535 at 540,
referred to

   Lamb v Moss [1983] FCA 254;  (1983) 49 ALR 533, referred to

   Ogle v Strickland (1987) 71 ALR 41, referred to

   Broadbridge v Stanners (1987) 76 ALR 339,
referred to

   Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377,
considered

   Australian Conservation Foundation
v Environment Protection Board (1983) 1
VR 385, considered

   Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20;  (1979) 140 CLR 675, referred to

   Re Calardu Pty Ltd (No 1) (1990) 109 FLR 343, referred to

   Alphapharm Pty Ltd v Smithkline
Beecham (Australia) Pty Ltd [1994] FCA 996;  (1994) 49 FCR
250, referred to

   Murragong Nominees v Melbourne and Metropolitan Board of Works (1985) 60
LGRA 210, referred
to

   Big Country Developments Pty Ltd v Australian Community Pharmacy Authority
(1995) 60 FCR 85 at 92, considered

   Australian
Conservation Foundation v Minister for Resources (1989) 19 ALD
70, referred to

   North Coast Environment Council Inc v Minister
for Resources [1994] FCA 1556;  (1994) 127 ALR
617, referred to

   Re Bolton; Ex parte Beane [1987] HCA 12;  (1987) 162 CLR 514 at 517-518, applied

   Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112
at 118-120,
referred to

   Broken Hill South Limited (Public officer) v Commissioner of Taxation
(N.S.W.)  [1937] HCA 4; (1937) 56 CLR 337 at 371, referred to

   Esber v The Commonwealth of Australia [1992] HCA 20;  (1992) 174 CLR 430 at 448, referred
to

   The Commonwealth v Verwayen [1990] HCA 39;  (1990) 170 CLR 394 at 427 and 451, referred to

   Master Retailers' Association of New South Wales v Shop Assistants Union of
New South Wales [1904] HCA 39;  (1904) 2 CLR 94 at 98, referred to

   Re Ludeke; ex parte Customs Officers Association of Australia,  [1985] HCA 22; (1985) 59
ALR 417 at 421 and 424, referred to

   John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5
NSWLR
465 at 468-469, referred to

   John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court
of New South Wales &
Anor (1991) 26 NSWLR 131 at 167-168, referred to

   Australian Conservation Foundation v The Commonwealth [1979] HCA 1;  (1980) 146 CLR 493,
applied

   Onus v Alcoa of Australia Ltd [1981] HCA 50;  (1981) 149 CLR 27 at 35-36, applied

   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 55,
applied

   The King v The War Pensions Entitlement Appeals Tribunal & Anor; Ex
Parte Bott [1933] HCA 30;  (1933) 50 CLR 228, referred to

   The King v Blakeley ex Parte Association of Architects, Engineers,
Surveyors and Draughtsmen
of Australia ( 1950) 82 CLR, referred to

   Craig v South Australia [1995] HCA 58;  (1995) 184 CLR 163, applied

   Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6;  [1969] 2 AC 147, at 171,
considered

   The Queen v Cook; Ex parte Twigg [1980] HCA 36;  (1980) 147 CLR 15, referred to

   R v Medical Board of the Australian Capital Territory; Ex parte Davis
(1995) 125 FLR 401, referred
to

   Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46
FCR 38 at 43, referred to

   Rayjon Properties
Pty Ltd v Department of Housing, Local Government and
Planning (Qld) (1994) 85 LGERA 251, at 253, referred to

   Australian Conservation
Foundation v The Commonwealth [1979] HCA 1;  (1980) 146 CLR 493 at
530, applied

   Tradesmens Union Club & Ors the Minister for the Environment Land and
Planning &
Anor (unreported, SCACT, 18 December 1997), followed

   Comptroller-General of Customs & Anor v Kawasaki Motors Pty Ltd (No
2) [1991] FCA 518; 
(1991) 32 FCR 243, distinguished

  

  

   CANBERRA, 18-19 May 1998 (hearing), 23 June 1998 (decision)

   #DATE 23:6:1998


 

   Counsel for the Appellants: Mr M Einfeld QC with Mr I Neil

   Instructing Solicitors: Clayton Utz

  

   Counsel for the
First Respondent: Mr P Walker

   Instructing Solicitors: ACT Government Solicitor

  

   Counsel for the Second Respondent: Mr
B Rayment QC with Mr G Lunney

   Instructing Solicitors: Gardini & Co

  

   Counsel for the Third Respondent: Mr P Walker

   Instructing Solicitors: ACT Government Solicitor

  

  

   THE COURT ORDERS:

  

   1 That the appeals in matters numbered
SCA 6 and SCA 7 of 1998 be
dismissed.

  

   2. That the applications in the matters numbered SCA 82, SCA 83, SCA 85 and
SCA 86
be dismissed.

  

  

   CRISPIN J

  

   1. By agreement of the parties these proceedings have been heard together.
For the sake
of convenience it is proposed to refer to the parties in each
case as the first and second appellants and the first, second and third
respondents.

  

   2. All of the proceedings concern a decision by the first respondent under
section 230 of the Land (Planning and Environment) Act 1991 to approve a
variation of the Crown lease in favour of the second respondent. The lease
related to the site of the premises occupied
by the Canberra Casino which is
conducted by the second respondent pursuant to a licence granted under the
Casino Control Act 1988
. Section 4 of that Act enables the Minister, by
notice published in the Gazette, to designate an area to be the Casino. The
area
so designated is less than the whole of the area covered by the lease
and, accordingly, the relevant premises do not occupy the whole
of the land
leased to the second respondent.

  

   3. The purpose clause in the lease had formerly permitted the premises to
be
used only for "a Casino and associated car parking, bars, cafes,
restaurants, entertainment and personal services ancillary thereto".
The lease
variation which was subsequently approved changed the purpose clause so that
the premises might be used for the purpose
of "a Casino and associated car
parking, bars, cafes, restaurants, entertainment, personal services and other
shops ancillary thereto,
or other indoor entertainment facilities, club, drink
establishment or indoor recreational facility".

  

   4. The additional terms
used in this formulation are defined in Appendix VI
of the written statement of the Territory Plan. In particular the term "club"
is defined to mean "the use of land as a meeting place for persons associated,
or a body incorporated, for a social, sporting, athletic,
literary, political
or other like purpose, and which is a licenced premise under the Liquor Act
1975 ".

  

   5. Section 76 of the Casino Control Act forbids the installation or use of
gaming machines in the Casino. However, the
Gaming Machine Act 1987 provides
that a "club" may obtain licences to operate what are described as Class C
gaming machines whilst
other licensed premises may obtain licences to operate
limited numbers of Class A or Class B gaming machines. For the purposes of
that Act a "club" means a club established for one or more of the purposes
referred to in subsection 30B(1). Those purposes are "recreation,
the
promotion of social, religious, political, literary, scientific, artistic,
sporting or athletic purposes or purposes approved
by the Minister by
instrument".

  

   6. The application to vary the lease was publicly notified in accordance
with section 229 of the Land (Planning and Environment) Act and the appellants
objected, apparently in reliance upon section 237.

  

   7. Notwithstanding those objections the Commissioner approved the variation
subject to certain conditions which are of no
relevance to the present
proceedings.

  

   8. The appellants then applied to the Administrative Appeals Tribunal
pursuant to section 276 of the Land (Planning and Environment) Act for a
review of the Commissioner's decision to approve the lease variation. The
respondents contended that they lacked standing to
make that application and,
despite the appellant's objections to this course, the Tribunal considered the
question of standing as
a preliminary issue.

  

   9. At the time the application was made section 276(1) enabled such
applications to be made only by a person who had objected under section 237 or
was able to demonstrate reasonable grounds for the Administrative Appeals
Tribunal to believe that he or she was unable to object
within the prescribed
period. In addition, the words of subsection 276(1), as enacted, provided that
the person making the application
must be a person whose "rights are
substantially and adversely affected". During the proceedings before me, Mr
Einfeld QC, who appeared
for the appellants, argued that the legislature had
intended to use the term "interests" rather than "rights" and that I should
construe
the section accordingly. He pointed out that the explanatory
memorandum used the term "interests" and when the Act was consolidated
as at
24 June 1997 the word "interests" was employed in place of "rights". However,
the Tribunal dealt with the matter on the footing
that the test for standing
was dependent upon the terms of the section as enacted.

  

   10. The Tribunal then proceeded to determine
the issue of standing as a
preliminary point, ultimately holding that neither appellant had been entitled
to maintain an objection
under section 237 and neither had standing to apply
for a review of the decision under section 276. The requirement that the
applicant
be a person who objected under section 237 was held to mean that the
applicant was a person who had made a valid objection under
that section, that
is, that he or she had not only objected but had been entitled to object. The
Tribunal found that the appellants
had not had such an entitlement because
neither fell within the description of a "person who may be affected by the
approval". The
Tribunal also found that the amendment to section 276, by
virtue of the Land (Planning and Environment (Amendment) Act (No 2) 1997
which
had come into effect after the hearing had been concluded but prior to the
Tribunal's decision, did not have retrospective
effect and that the relevant
test was whether the "rights" of the appellants had been substantially and
adversely affected by the
decision to approve the lease variation. The
appellants again failed to satisfy the Tribunal that they met this
requirement. Accordingly,
the applications were dismissed.

  

  "11." The appellants appealed from this decision pursuant to section 46 of the
Administrative Appeals Tribunal Act 1989 . They also applied for prerogative
relief in relation to the Commissioner's decision to approve the lease
variation. In addition,
they applied for an order under section 5 of the
Administrative Decisions (Judicial Review) Act 1989 reviewing that decision.""

  ""

  "The appeal from the Administrative Appeals Tribunal"

  ""

  ""12. The Tribunal's decision
was attacked on a number of bases.

  

   13. First, it was contended that the Tribunal had fallen into error in
deciding the question
of standing as a preliminary point rather than leaving
it to be determined in the light of all of the evidence which the appellants
thought to adduce in support of their application to the Tribunal under
section 276 of the Land (Planning and Environment) Act .

  

   14. Section 30 of the Administrative Appeals Tribunal Act provides that:

   "Where it is necessary for the purposes of this Act to decide whether the
interests of person are affected by
a decision, that matter shall be decided
by the Tribunal and, if the Tribunal decides that the interests of a person
are affected
by a decision, the decision of the Tribunal is conclusive."

   15. This section seems to exclude any right of appeal in relation
to
standing if that decision is in favour of the objector or applicant as the
case may be but to leave untouched any entitlement
to appeal on the ground
that standing has been wrongly denied. That construction is confirmed by the
terms of section 46. However
the section is silent as to whether the issue of
standing should be determined as a preliminary point.

  

   16. The Tribunal took
the view that whether it was appropriate to determine
standing prior to any hearing of the substantive application depended upon
the
facts of the particular case. If the standing of an applicant could only be
determined after hearing much of the evidence that
would be relevant to the
hearing of the substantive application, it would usually be convenient to
defer a decision on the question
of standing until after all of the evidence
had been heard. On the other hand, if the material relevant to the question of
standing
could be conveniently isolated from that relevant to the substantive
application, then the issue might be determined as a preliminary
point in
order to avoid the costs of a full hearing. In the present case the Tribunal
found that it was convenient to determine the
issues relating to standing
without proceeding to a full hearing of the substantive application. Whilst
the decision to proceed in
this manner was challenged in the Notice of Appeal
Mr Einfeld did not seek to demonstrate that it was not open to the Tribunal or
that in adopting it the Tribunal fell into some demonstrable error. Nor was
there any attempt to demonstrate that the appellant suffered
some potential
prejudice as a result of this approach.

  

   17. Mr Einfeld did, however, contend that each of the appellants was
a
"person who may be affected" by the decision to approve the lease variation.
As Higgins J pointed out in Jewel Food Stores v Minister
(1994) 122 FLR 269 at
279, the section does not contain any other words of limitation on the class
of people who may be affected
by the approval and does not contain any express
limitation on the manner in which such people must be affected. His Honour
thought
it unlikely that the legislature had intended to narrowly confine the
class of objectors to those whose enjoyment of property rights
may be affected
by the relevant "controlled activity" or that the class would be narrower than
that referred to in section 12 of the Administrative Decisions (Judicial
Review) Act . In US Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR
79 at 86 a Full Court of the Federal Court made the following observations:

  

  

   "The words 'interests' and 'interested' are not used in ss 3 and 5 of the
ADJR Act respectively, as if they were mere
terms of common parlance. The term
'interest' has long been an expression used within the law with respect to
parties so as to require
an involvement with the case greater than the concern
of a person who was a mere intermeddler or busybody. Nevertheless, the
criterion
for standing prescribed by the Act is not a restrictive one. The
broadcast of technical terms has been selected. The necessary interest
need
not be legal, propriety, financial or other tangible interests. Neither need
it be peculiar to the particular person."

   18.
The concept of being "aggrieved" has also been construed broadly. In
particular, it is being held that it should not be confined
to persons who can
establish that they have a legal interest at stake in the making of the
decision. In Tooheys Ltd v Minister for
Business and Consumer Affairs (1981)
36 ALR 64 Ellicott J said, at 79, that the test at least covers a person who
can show "a grievance
which will be suffered as a result of the decision
complained of beyond that which he or she has as an ordinary member of the
public".
His Honour cited as an example a decision which might affect the
person in the conduct of a business. See also Ricegrowers Co-operative
Mills
Ltd v Bannerman [1981] FCA 211;  (1981) 38 ALR 535 at 540; Lamb v Moss [1983] FCA 254;  (1983) 49 ALR 533 ; Ogle
v Strickland (1987) 71 ALR 41 and Broadbridge v Stanners (1987) 76 ALR 339. In
Jewels Food Stores Pty
Ltd v Minister, Higgins J drew upon these statements of
principle in seeking to interpret the requirements of section 237(1). His
Honour noted that despite such liberal construction it remained necessary for
a prospective objector to show that if the objection
were to be upheld it
would confer on the objector a benefit or advantage of discernable consequence
or significance and cited as
an example the decision in Australian Foreman
Stevedores Association v Crone (1989) 20 FCR 377. In that case Pincus J at 379
had
conceded that "a sufficient economic effect, caused by the decision
attacked, is a satisfactory basis for an application under the
Administrative
Decisions (Judicial Review) Act ". Nonetheless, Higgins J took the view that
neither the applicants before him nor any of their customers had any
legitimate expectation
that competition would be restricted so as to protect
their economic interests. His Honour held that it was not sufficient for
applicants
to demonstrate that their economic prospects have become less
favourable.

  

   19. The Tribunal also observed that in determining
the range of interests
that might qualify a person to be an objector it is relevant to observe that
the Land (Planning and Environment) Act manifests a legislative intention to
facilitate community participation in decisions concerning development
applications. Accordingly,
the Tribunal ventured the opinion that a person who
had demonstrated a "disinterested involvement in planning issues in his or her
neighbourhood" may well qualify as an objector since that person had a special
interest over and above the general members of the
public. In support of the
latter proposition the Tribunal referred to cases such as Australian
Conservation Foundation v Environment
Protection Board (1983) 1 VR 385 which
emphasised the wide view taken by the courts in relation to planning issues.
Whilst the Tribunal
relied upon this decision only as an example, it should be
noted that the statutory provision at issue in that case authorised objection
by "any person who feels aggrieved thereby". These words may well justify a
more expansive approach than those contained in section 237(1) of the Land
(Planning and Environment) Act 1991 .

  

   20. Nonetheless, the Tribunal held that the effect of mere economic
competition is not enough to entitle a person to be
an objector. In my view
there is ample authority to support this proposition. See, for example ,
Kentucky Fried Chicken Pty Ltd v
Gantidis [1979] HCA 20;  (1979) 140 CLR 675; Jewel Food
Stores v Minister ; Re Calardu Pty Ltd (No 1) (1990) 109 FLR 343 and
Alphapharm Pty Ltd v Smithkline
Beecham (Australia) Pty Ltd [1994] FCA 996;  (1994) 49 FCR 250.
On the other hand, as the Tribunal also observed, economic considerations
going beyond mere competition may
provide a sufficient basis for standing :
Kentucky Fried Chicken Pty Ltd v Gantidis per Stephen J at 687. See also
Murragong Nominees
v Melbourne and Metropolitan Board of Works (1985) 60 LGRA
210.

  

   21. Mr Einfeld did not challenge these principles but rather
contended that
the appellant had not been reliant upon the mere threat of further
competition. He submitted that there were two important
distinguishing
factors.

  

   22. First, licensed clubs donate monies to community and charitable
purposes and their interests
are therefore co-incident with the public
interest. The capacity of existing clubs to continue to make donations of that
kind would,
he contended, be impaired if the profits which they derived from
poker machines were reduced as a result of increased competition.

  

   23. The evidence before the Tribunal on this issue was somewhat sparse.
However, there was evidence of actual donations which
had been made by the
first appellant and Mr Einfeld submitted that this reflected a general
practice of clubs within the Territory.
The latter assertion was not accepted
by the Tribunal which commented that it was well known that a number of clubs
do little more
than break even on their own trading activities and have little
or no funds available to disperse for the benefit of the community.
For my
part, I can only say that I have no knowledge of the relative generosity of
clubs within this Territory and am unable to accept
either proposition on the
basis of judicial notice or as "common knowledge", to use the term employed in
section 144(1) of the Evidence Act 1995 (Cth ). The rules of the first
appellant were in evidence before the Tribunal. Rule 5 provides that the
income and property of the club shall be applied solely with the promotions of
its objects. The objects as stated
in the rules do not include the making of
donations to charitable or community purposes. The rules do permit the
provision of benefits
to the club or to specified trade unions but the
Tribunal took the view that any threat to the provision of these benefits
could
arise only as a result of increased competition. The Tribunal also
pointed out that there is no legal requirement for clubs to make
donations of
that kind.

  

   24. In all the circumstances, the Tribunal concluded that any adverse
effect on a club's takings
from poker machines which might be experienced as a
result of the establishment of a club on the relevant premises did not have
any
public policy implications and the appellant's contentions raised "a
matter of mere competition and nothing more".

  

   25. The
Tribunal also made the observation that the desire by some person
or body to donate some portion of business profits to good causes
does not of
itself raise planning issues though it acknowledged that there may be
circumstances in which a contribution to the public
interest would involve
such issues and cited as an example a proposed development that would hinder
access to premises used for fund
raising.

  

   26. The Tribunal concluded that the mere fact that the establishment of a
club on the land in question might have
adverse financial consequences for an
existing club was not sufficient to give that club standing for the purposes
of section 237
of the Act.

  

   27. It is clear, in my view, that the mere risk of an adverse impact upon
commercial interests is not, of itself,
to found standing. As Lindgren J
pointed out in Big Country Developments Pty Ltd v Australian Community
Pharmacy Authority (1995)
60 FCR 85 at 92, the "ripples of affection" in
financial or commercial terms arising from administrative decisions extend far
and
wide. It is unthinkable that the legislature intended to accord standing
to every person who has a financial or commercial interest
which may be
adversely affected by a decision, no matter how remote that interest may be
from the subject of the relevant application
and no matter how minor the
affection. In my view the Tribunal was correct in concluding that it was not
sufficient for the appellants
to merely advert to the risk that the lease
variation might ultimately lead to the operation of poker machines on the site
by a club
and that might in due course have some adverse impact on the profits
derived from poker machines by existing clubs.

  

   28. There
is nothing in the Land (Planning and Environment) Act to suggest
that a practice of making charitable donations may entitle a person to
standing as an objector. It is no doubt in the
public interest that
individuals and organisations make charitable donations and, as a matter of
public policy, it may be desirable
to encourage such philanthropic behaviour.
However, there is no indication that the legislature has chosen to provide
such encouragement
by giving those people or organisations standing to object
to planning decisions. I do not accept that a wealthy corporation which
makes
charitable contributions, whether motivated by the desire to improve its
corporate image or purely altruistic considerations,
thereby acquires standing
which would be denied a member of the community unable to afford similar
generosity.

  

   29. Nor do
I accept Mr Einfeld's contention that standing was afforded by
the fact that clubs "meet a community purpose in everything they do".
The test
imposed by section 237(1) is whether the potential objector may be affected by
the approval of an application; not whether the public interest may be so
affected.
Of course, the two issues may be related. For example, it may be
open to a planning authority to take the view that the public interest
in
maintaining restrictions on the size and shape of buildings in a particular
neighbourhood would be outweighed by the public interest
in having a
neighbourhood support facility conducted by the Salvation Army or the St
Vincent de Paul Society which required more
space than would be permitted if
those requirements were not waived. Conversely, it may be open to such an
authority to take into
account the likelihood that approval of a planning
application would pose a potential threat to a charitable institution's
ability
to carry on such activities as caring for homeless children or
destitute people, by, for example facilitating noisy activities next
to a
dormitory. In that event the institution could no doubt maintain that it had
been "affected" for the purposes of section 237. Furthermore, once standing
had been established an objector would presumably be entitled to raise
relevant public interest issues
in support of his objection, even if they did
not involve any impact on his or her interests. However, that does not mean
that a
person whose real complaint is the threat of increased competition may
bring himself or herself within section 237(1) by purporting to take up the
cause of public interest. A potential objector must demonstrate that his or
her interests are "affected"
in the manner previously discussed. If they have
not been so affected, the mere fact that his or her interests may co-incident
to
the public interest will not be sufficient to found standing.

  

   30. Accordingly, I am unable to accept Mr Einfeld's submission
that the
Tribunal fell into error by failing to find that the evidence of charitable
donations coupled with the potential for increased
competition meant that the
first appellant was a person who may be affected by the approval of the lease
variation and hence had
standing to maintain an objection under section
237(1).

  

   31. The second appellant is a body incorporated under the Associations
Incorporation Act 1991 . Its membership is confined to licensed clubs, clubs
having approval to erect club premises and awaiting liquor licensing approval
and "other organisations as may from time to time be approved by the Executive
Committee". Even then, there is no entitlement to
membership. The
Association's constitution appears to contemplate that membership may be
offered to bodies falling within this description
at the Association's
discretion. The objects of the Association make it clear that its primary
function is to promote, protect and
further the development and interests of
member clubs and to represent and communicate their views. The Tribunal took
the view that
although the Association is a legal person separate from its
members and its interests are not necessarily identical with its members
"the
interests of its members would seem to define the high water mark of the
Association's interests". Accordingly, the Tribunal
distinguished the present
case from cases such as Australian Conservation Foundation v Minister for
Resources (1989) 19 ALD 70 and
North Coast Environment Council Inc v Minister
for Resources [1994] FCA 1556;  (1994) 127 ALR 617 in which the objects and activities of the
organisation were held to give them a special interest in maintaining
the
public interest in the proper administration of laws relating to their special
interests.

  

   32. It seems to me that there
may be many circumstances in which the
interests of an association may rise above or otherwise differ from the
interests of the individual
members. For example professional associations may
have objects which may extend to fostering high ethical ideals, maintaining
programs
of continuing education, creating public awareness of important
issues and otherwise serving the public interest. However, as the
Tribunal
pointed out, the second appellant's objectives do not appear to rise above the
promotion of the interests of its members.
In any event, I am unable to
discern any separate economic interest of the Association which might lead to
the conclusion that it
was "affected" by the variation of the lease purpose
clause in a manner sufficient to found standing. It was not contended that the
second appellant had itself made charitable donations but rather that it
represented the interests of clubs which as a matter of
practice made such
donations and served the public interest by the provision of services to their
members. As previously mentioned,
the evidence concerning these matters was
somewhat limited. Furthermore, it seems to me that if the member clubs are
affected only
by the threat of increased competition the second appellant can
have no greater claim for standing under section 237. Indeed, if
it were to be
viewed as a discrete entity rather than representative of those members, it
might be unable to demonstrate any potential
effect on its interests.

  

   33. Secondly, Mr Einfeld submitted that the second appellant had a special
interest in maintaining
the present public policy of authorising licensed
clubs to operate poker machines but prohibiting the use of such machines in
the
Casino.

  

   34. As the Tribunal observed, the lease variation involves no infringement
of any such public policy. The terms approved
merely enable the operation of a
club in part of the premises presently occupied by the Casino. The Casino
itself could not lawfully
operate poker machines without amendments to both
the Casino Control Act and the Gaming Machine Act . Furthermore, if those Acts
were to be amended in order to permit the Casino to operate poker machines the
lease variation permitting the land to be used for
the purposes of a club
would be irrelevant to that issue. If any part of the premises on the land in
question are to be used for
the purposes of a club, it will obviously be
necessary for the relevant area to be subleased to a new or existing
organisation which
matches that description. The possibility that such a club
might establish the right to operate poker machines in that portion of
the
premises would at the most support an argument based upon the potential impact
of increased competition.

  

   35. Mr Einfield
nonetheless maintained that the lease variation would
facilitate an illegal purpose since poker machines could not lawfully be
operated
within the area designated for the Casino. In answer to this
contention, Mr Rayment QC, who appeared for the second respondent, made
it
clear that his clients anticipated that an application would be made to change
the area designated for the Casino so that a club
might lawfully operate poker
machines in some area of the building not so designated. In any event, the
lease variation does not
purport to authorise the use of poker machines on the
premises in question. It does nothing more than remove any impediment that
might otherwise have arisen from the terms of the lease to the operation of a
"club". There is no principle of law which requires
a club to operate poker
machines and unless the designation is changed and the necessary licences are
obtained no club would become
entitled to do so.

  

   36. Whilst it is no doubt relevant for a planning body to consider whether
a lease variation has been
sought in order to facilitate an illegal activity
that does not mean that an application for such a variation cannot be approved
if it is within the contemplation of the applicant that an activity might
ultimately be conducted on the relevant property and that
course is not
presently permissible. Where the contemplated activity is illegal only because
of statutory restrictions on its conduct
in particular places or other
provisions of a planning nature, it is open to the Commissioner to take into
account the possibility
that the government might accede to representations
that those restrictions be removed. In the present case, the lease variation
effectively removed one such impediment and there is no reason to suppose that
any applications or representations which the applicant
might make in relation
to other legal impediments would be doomed to failure. As Mr Rayment
submitted, a person facing a number of
legal impediments to a proposed course
of action must start somewhere.

  

   37. There is no reason to suppose that poker machines
will be used
illegally on the demised land. If the Minister is not willing to change the
designation under the Casino Control Act
or if the relevant licences are
refused then no club will be able to operate poker machines in any part of the
existing building.
On the other hand, there is no reason to suppose that the
Minister may not be amenable to some proposal to change the designation.
Nor
is there any reason to suppose that any club which seeks to utilise the
premises would not be a reputable body able to demonstrate
adequate grounds
for the issue of the relevant licences. Indeed, it is conceivable that the
relevant portion of the premises might
be leased to one of the clubs which are
members of the second appellant. If those impediments were overcome then poker
machines might
lawfully be used upon the premises.

  

   38. In any event, the second appellant cannot qualify as an objector under
section 237
merely by averting to the possibility that the approval might
enable some future tenant, who leases part of the premises on the relevant
land for a purpose permitted by the lease, to breach various statutory
restrictions or otherwise behave illegally. The section requires
a potential
objector to show that it may be affected by the approval of the application.
An organisation which has no special interest
in maintaining due observance of
the relevant laws cannot fulfil this requirement by donning the mantle of
legal crusader and embarking
upon its own campaign to have existing
restrictions retained. I do not accept that the legislature intended to confer
any special
rights on members of the second respondent let alone create a
"monopoly" which it might be said to have a special interest in maintaining.
Nor do I accept that the second appellant has any special interest in the
maintenance of existing laws relating to the operation
of poker machines. If,
contrary to this view, it does have such an interest, then it remains
unaffected in any relevant sense by
the approval of the lease variation.

  

   39. Furthermore, even if the appellants could show that they were persons
who had been
entitled to object under section 237 it would still be necessary
for them to demonstrate that they fulfilled the other requirements
of
subsection 276(1). At the time of the application paragraph (b) of that
subsection added a requirement which had been expressed
in the words "the
rights of the person are substantially and adversely affected by the
decision". Mr Einfeld submitted that the legislature
had intended to enact the
word "interests" rather than "rights". He did not suggest that the section as
in fact enacted did not contain
the word "rights" but contended that the
legislature had, in effect, enacted a provision containing a typographical
error. This error
is clear, he maintained, from the terms of the explanatory
memorandum that accompanied the Bill and is confirmed by the fact that
when
the consolidated Act was reprinted as at 24 June 1997 the word "interests" was
used in lieu of the word "rights". The Tribunal
erred, he submitted, by
failing to approach the matter on the basis that the appellants were only
required to demonstrate that their
"interests" were substantially and
adversely affected.

  

   40. This submission is obviously dependent upon a very expansive view
of
the use which may be made of extrinsic material in the interpretation of
statutory provisions. Section 11B of the Interpretation
Act 1967 provides that
extrinsic material may be considered if "capable of assisting in the
ascertainment of the meaning of the provision
. . ." However, consideration
may only be given to that material for the purposes referred to in subsection
(1); namely, to confirm
that the meaning of the provision is the ordinary
meaning conveyed by the text or to determine the meaning if the provision is
ambiguous
or obscure or the ordinary meaning would lead to a manifestly absurd
or unreasonable result. In my view, paragraph (b) of subsection
276(1) of the
Land (Planning and Environment) Act is neither ambiguous nor obscure and the
ordinary meaning conveyed by its terms does not lead to an absurd or
unreasonable result.

  

   41. I do not accept that section 11B authorises a court to scrutinise
extrinsic material in order to determine whether in
enacting provisions, which
on their face are unexceptionable, the legislature acted in error. Nor do I
accept that it would be appropriate
for a court to purport to rectify that
perceived error by reading the statute as if it contained a different term or
terms. The fact
that a consolidated reprint of the statute incorporates the
word "interests" rather than "rights" does not in my view enlarge the
operation of section 11B of the Interpretation Act or otherwise authorise the
court to embark upon such an exercise. Even if recourse
to extrinsic material
were not constrained by the terms of section 11B I would be reluctant to
assume that any perceived disparity
between the terms used in the Bill and
that used in the explanatory memorandum necessarily means that the former was
in error and
did not reflect the will of the legislature. It is the Bill which
is enacted by the legislature and becomes law.

  

   42. An explanatory
memorandum or some other document of the kind referred
to in section 11B may assist in the interpretation of a provision so enacted
if there is some doubt about its meaning. However, such extrinsic material
cannot assume primacy over the terms of the legislation
itself. If there is
some disparity between the Bill and the explanatory memorandum that may
reflect an error in that latter. Furthermore,
even if the Bill contained some
error of drafting, it has nonetheless been enacted in the form in which it was
submitted. Subject
to any issues of construction, it must be applied according
to its terms. As Mason CJ, Wilson and Dawson JJ said in Re Bolton; Ex
parte
Beane [1987] HCA 12;  (1987) 162 CLR 514 at 517-518:

  

  

   ". . . given that s19 is ambiguous, consideration may be given in
ascertaining the meaning
of the provision to the second reading speech of the
Minister when introducing the Bill for the Act into the House of
Representatives
in 1963: Acts Interpretation Act 1901 (Cth), as amended, s
15AB. That speech quite unambiguously asserts that Pt III relates to deserters
and absentees whether or not they are from a visiting force. But this of
itself, while deserving serious consideration,
cannot be determinative; it is
available as an aid to interpretation. The words of a Minister must not be
substituted for the text
of the law. Particularly is this so when the
intention stated by the Minister but unexpressed in the law is restrictive of
the liberty
of the individual. It is always possible that through oversight or
inadvertence the clear intention of the Parliament fails to be
translated into
the text of the law. However unfortunate it may be when that happens, the task
of the court remains clear. The function
of the court is to give effect to the
will of Parliament as expressed in the law."

   43. See also Barry R Liggins Pty Ltd v Comptroller-General
of Customs
(1991) 32 FCR 112 at 118-120.

  

   44. Accordingly, I reject the submission that the Tribunal erred in
applying the
test of rights rather than interests.

  

   45. Mr Einfeld conceded that words in a statute should prima facie, be
construed in
accordance with their ordinary meaning : Broken Hill South
Limited (Public officer) v Commissioner of Taxation (N.S.W.)  [1937] HCA 4; (1937) 56 CLR 337
at 371. He submitted, however, that there was an anomaly in the use of the
word "rights" in subsection (1) of
section 276 but the word "interests" in
sub-paragraph (4). Hence, even if the word "rights" could not be read as if it
were "interests",
it should nonetheless be construed as having substantially
the same meaning. In any event, he submitted, the word "rights" should
be read
as extending beyond legal rights.

  

   46. In my view, the terms of subsection (4) tend to confirm that the word
"interests"
was used in contradistinction to the word "rights" in subsection
(1). As a matter of normal statutory construction the fact that
the
legislature has chosen to use different words tends to suggest that some
difference in meaning was intended. Prima facie, the
word "rights" should be
taken to mean legal rights. However, the word must be construed according to
its context and in some statutes
it may have a wider meaning. In the present
case there is an obvious difficulty in finding any alternative formulation
that would
maintain a sensible distinction between "rights" and "interests"
and I think that the word should be construed in the ordinary sense
of legally
recognised rights.

  

   47. The rights which Mr Einfeld contended were asserted by the appellants
were rights to maintain
statutory entitlements to use poker machines to the
exclusion of the second respondent and any others who might ultimately benefit
from the decision. However, as previously mentioned, I do not accept that the
statutory restrictions on the operation of poker machines
give rise to any
monopoly or entitlement on the part of either appellant. Accordingly, I do not
accept that either has a "right",
whether in the sense of a legal right or
otherwise, to maintain such exclusive usage. Furthermore, even if such a right
did exist
it was not challenged by the approval of the lease variation.

  

   48. Indeed, even if I had come to the view that the relevant
test under
section 276 had been whether the interests of the appellants had been affected
I would not have been satisfied that either
had established standing. For the
reasons previously given I am not satisfied that their interests were affected
in any relevant
sense.

  

   49. Mr Einfeld also submitted that the Tribunal had fallen into error by
failing to recognise that the amendment to
section 276 effected by the Land
(Planning and Environment) (Amendment) Act (No 2) 1997 applied to the issue of
the standing of the
appellants. Section 6 of the amending Act was in the
following terms:

  

  

   Section 276 of the Principal Act is amended - (a)
by omitting from
paragraph (1)(b) "rights" and substituting "interests"; and (b) by adding at
the end the following subsections:
"(8) In this section - 'person' includes an
unincorporated association. (9) For the purposes of this section, an
organisation or
association of persons, whether incorporated or not, shall be
taken to have interests that are substantially and adversely affected
by a
decision if the decision relates to a matter included in the objects or
purposes of the organisation or association."

   50.
I accept Mr Einfeld's submission that subsection (9) is in very broad
terms. Indeed, at face value it would appear to permit people
to apply to the
Tribunal for the review of planning decisions which did not affect them in any
way at all, provided they had formed
an association with such an object or
purpose and that association had been the objector. However, as previously
mentioned, the amendment
did not come into effect until the hearing before the
Tribunal had been completed and judgment had been reserved. In these
circumstances
there was a real issue as to whether it had any application to
the proceedings.

  

   51. Mr Einfeld maintained that the Tribunal
had erred in considering that
the amendment lacked retrospective effect. The true position was that where on
a hearing de novo the
question for determination is whether an applicant
should be granted a right it is appropriate to apply the law as it then
exists.
Hence, it was the law at the time of the decision that was relevant.
In support of this contention he relied upon the judgment of
Brennan J in
Esber v The Commonwealth of Australia [1992] HCA 20;  (1992) 174 CLR 430 at 448. The passage
was part of a dissenting judgment by His Honour but Mr Einfeld maintained that
the majority
had not taken any different view on this issue.

  

   52. On the other hand, Mr Rayment submitted that the majority had taken a
significantly different approach. He pointed out that Mason CJ, Deane, Toohey
and Gaudron JJ had held, at 440-441, that the applicant
had a right to have
the decision of the delegate, who had refused his claim for redemption of his
compensation rights, reconsidered
and determined by the Tribunal
notwithstanding the repeal of the statute under which the entitlement to the
redemption had arisen.
Their Honours had concluded that once the appellant had
lodged an application to the Tribunal to review the delegate's decision he
had
a right to have the decision reconsidered and determined by the Tribunal. That
right was a substantive right which was protected
by section 8 of the Acts
Interpretation Act 1901 (Cth) . Hence, he was entitled to have the Tribunal
review the earlier decision on the basis of the law as it stood prior to the
repeal of the relevant statute.

  

   53. Mr Rayment submitted that the same principle applied to the present
situation and that
the relevant law was that which existed at the time the
appellants sought to invoke any right to apply to the Tribunal under section
276. It was true that the position of the second respondent was the converse
of that enjoyed by the applicant in Esber v The Commonwealth
of Australia in
that it was seeking to maintain the initial approval rather than attempting to
have it reviewed. However, the second
respondent was in essence asserting an
accrued right. It had obtained approval for the lease variation and had a
right to maintain
that approval subject only to any existing rights of
objection. The first respondent's rights could no more be cut down by a
statutory
amendment expanding the scope for objections than Mr Esber's rights
could be obliterated by the repeal of a statute.

  

   54.
Mr Einfeld argued that the second respondent acquired no accrued or
vested right because the proceedings before the Tribunal were
de novo. A valid
and subsisting approval would normally give rise to a vested right
notwithstanding the existence of a statutory
provision for an appeal or review
de novo. However an approval under section 230 does not become effective until
any application
under s276 has been resolved. The real difficulty with Mr
Einfeld's submission is that it ignores the fact that, as I have found,
neither appellant had any right to apply to the Tribunal prior to the
amendment. Even if a right could be regarded as having not
vested because some
other person had an entitlement to apply to have the relevant decision
reviewed de novo, no person had such an
entitlement.

  

   55. On the other hand, whilst I am inclined to agree with Mr Rayment's
submissions on this issue it does not
seem to me that it really arises for
determination. In the present case, the issue is not what law the Tribunal was
obliged to apply
upon the hearing of the application but whether the
appellants had standing to make that application. The issue of standing is, of
course, governed by the terms of 276 which provided at the relevant time that
a person might apply to the Tribunal if that person
met the requirements then
stipulated. At the time the appellants made their application to the Tribunal
in purported reliance upon
this section the amendment had no operation.
Accordingly, their entitlement to apply was dependent upon the law as it then
stood.
In my view, that law did not give them standing to make the
applications. Accordingly, the jurisdiction of the Tribunal was not properly
invoked by the applications which they purported to make. There is nothing in
the amending Act to suggest that it was intended to
ratify applications which
had previously been made without statutory authority or any other basis in
law. I agree with the Tribunal's
conclusion that the statute had no
retrospective effect. Consequently, it could not be treated as having had any
operation in relation
to the time at which the applications were made and
could not be regarded as, in effect, validating those applications ab initio.
For these reasons I am unable to accept that the amendment had any effect upon
the standing of the appellants.

  

   56. Mr Walker
also submitted that the applications purportedly made under
section 276 of the Land (Planning and Environment) Act 1991 , were not
authorised by the section because the right that would otherwise have arisen
had been removed by regulation.

  

   57.
Section 282 permits regulations to be made exempting the "conduct of a
specified controlled activity" from the operation from the provisions
of Part
VI of the Act. The Land (Planning and Environment) (Casino) Regulations of
1992 came into effect at the same time as section 282 and exempted controlled
activities "of the kind referred to in item 2 or
3 of Schedule 4 of the Act"
from the operation of section 276 if the controlled activity was carried out
"only in relation to land
in respect of which a designation is in effect under
paragraph 4(1)(a) or (b) of the Casino Control Act 1988 ". Item 2 in Schedule
4 referred to "the execution of a variation of a lease of Territory Land". It
is common ground that there has been a designation
under paragraphs 4(1)(a) of
the Casino Control Act 1988 in relation to the lease at all relevant times.
Consequently, Mr Walker maintained,
the lease variation was exempt from any
application to the Tribunal under section 276.

  

   58. Mr Einfeld submitted that these
regulations simply have no continuing
operation in the new legislative scheme introduced by the Land (Planning and
Environment) Amendment
Act, 1996 which regulates "developments" rather than
"controlled activities". Mr Walker conceded that the Act had been amended in
1996 by the Land (Planning & Environment) (Amendment) Act (No 3) 1996 to
remove Schedule 4 and narrow the definition of "controlled
activity" in
section 4 but pointed out that the applications had been lodged before the
commencement of the relevant provisions and
submitted that the transitional
provisions preserved the operation of the regulations in relation to them.

  

   59. For present
purposes I am prepared to assume that the regulations
applied to the development application in April 1997. However, I am not
persuaded
that the relevant controlled activity is one that is to be carried
out "only in relation to land in respect of which a designation
is in effect".
It is conceivable that this description was intended to encompass all of the
land covered by the lease even though
only part of that land was so
designated. However, in my view it should be construed as relating only to the
designated area. The
variation of the purpose clause applies to the whole of
the land covered by the lease whilst the designation relates only to that
area
on which the present building is constructed. Whilst it is intended to house
any club in that building, that cannot be done
lawfully unless the designation
is changed to confine the Casino to one portion of the building so that the
club may occupy the remainder.
In short, it is clear that the activity is not
to be carried on within the designated area.

  

   60. Mr Walker also submitted
that the lease variation was exempt from
review under section 276 by virtue of regulation 24 of the Land (Planning and
Environment)
Regulations . That regulation applies to developments listed in
Schedule 7. Item 8 of that schedule refers to developments on "land
within an
Entertainment, Accommodation and Leisure Area". The land in question is within
such an area and Mr Walker maintained that
it otherwise meets the criteria
stipulated in the schedule.

  

   61. Regulation 24 came into operation on 24 June 1997 and the
decision to
approve the lease variation was made on 21 July 1997.

  

   62. Mr Einfeld argued that the first respondent should
not be permitted to
raise this contention. He pointed out that neither respondent sought to rely
upon regulation 24 in the proceedings
before the Tribunal and that it was
raised in the proceedings before me only after the evidence had closed. Any
relevant facts were,
he maintained, exclusively within the knowledge of the
second respondent. Hence the respondents must be taken to have knowingly
abstained
from exercising the right to rely upon regulation 24 and thus have
waived that right, vide The Commonwealth v Verwayen [1990] HCA 39;  (1990) 170 CLR 394 at 427
and 451.

  

   63. However, the only factual finding necessary to support Mr Walker's
submission is
that the land in question is less than 50 metres from any
residential area at its nearest point. A minute from the Area Manager,
Civic
dated 29 April 1997 indicates that "the subject land is marginally within 150
metres" of residential land. In any event I would
have been prepared to regard
the location of the Casino and its relative remoteness from residential areas
as being within common
knowledge.

  

   64. Furthermore, regulation 24 did not confer any rights upon the
respondents. It merely provided that section
276 of the Act would not apply to
decisions of a class which in my view included the decision to approve the
lease variation in question.
Consequently, the appellants never had any lawful
right to apply to the Tribunal. In these circumstances the mere fact that the
regulation
was not raised during argument before the Tribunal should not be
regarded as requiring the Court to now ignore its effect. In any
event, if I
were to accede to Mr Einfeld's submissions and remit the question of standing
to the Tribunal for re-hearing, the effect
of the regulation would inevitably
be raised in those proceedings.

  

   65. Accordingly, I conclude that it is appropriate for
me to have regard to
regulation 24 and I find that this regulation did effectively exempt the
Commissioner's decision to approve
the lease variation from review by the
Tribunal pursuant to section 276.

  

   66. For these reasons I am not satisfied that the
Tribunal fell into error
in deciding the issue of standing as a preliminary issue or in the finding
which it made on that issue.

  

   67. If the appellants lacked standing to make the applications to the
Tribunal then they similarly lack standing to prosecute
the appeals and it is
unnecessary to embark upon any consideration of the merits of the arguments
advanced in relation to the substantive
issues raised.

  

  "The application for prerogative relief"

  ""

   68. Whether a plaintiff has standing to seek prerogative
relief may be
dependent upon the ground relied on. It has been said that "a stranger" may
seek prerogative relief to prevent an inferior
court or tribunal from
exceeding its jurisdiction. See, for example, Master Retailers' Association of
New South Wales v Shop Assistants
Union of New South Wales [1904] HCA 39;  (1904) 2 CLR 94 at
98 ; Re Ludeke; ex parte Customs Officers Association of Australia,  [1985] HCA 22; (1985) 59
ALR 417 at 421 and 424; and John Fairfax and Sons Ltd v Police Tribunal of New
South Wales (1986) 5 NSWLR 465 at 468-469
and John Fairfax Group Pty Ltd
(Receivers and Managers Appointed) v Local Court of New South Wales & Anor
(1991) 26 NSWLR 131
at 167-168. In other circumstances a plaintiff must bring
himself or herself within the rule established in Australian Conservation
Foundation v The Commonwealth [1979] HCA 1;  (1980) 146 CLR 493. That rule was stated by
Gibbs CJ in Onus v Alcoa of Australia Ltd [1981] HCA 50;  (1981) 149 CLR 27 at 35-36 in the
following terms:

  

  

   "A plaintiff has no standing to bring an action to prevent the violation
of
a public right if he has no interest in the subject matter beyond that of any
other member of the public; if no private right
of his is interfered with he
has standing to sue only if he has a special interest in the subject matter of
the action."

   69.
This rule was affirmed by Brennan, Dawson, Toohey, Gaudron and McHugh
JJ in 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.
Their Honours observed that the rule is flexible and that the nature and
subject matter of the litigation
will dictate what amounts to a special
interest.

  

   70. In the present case, I am not satisfied that the present appellants
have demonstrated any "special interest" of the kind that would entitle them
to standing to seek prerogative relief other than on
the ground of excess of
jurisdiction. The interests of the appellants are not directly affected in any
way by the decision in question.
Nor, in my view, to they fall within the
class of people upon whom the legislature has chosen to confer rights of
objection in relation
to decisions of this kind. It is possible that the
change in purpose clause may ultimately facilitate the conduct of a business
on
the land in question which might give rise to competition with the first
appellant or members of the second appellant. However I
do not accept that a
mere desire for protection against potential competition is sufficient to give
rise to a "special interest".

  

   71. The circumstances in which a Writ of Mandamus will be justified were
considered by the High Court of Australia in The
King v The War Pensions
Entitlement Appeals Tribunal & Anor; Ex Parte Bott [1933] HCA 30;  (1933) 50 CLR 228 at
where Rich, Dixon and McTiernan JJ said:

  

  

   "A writ of mandamus does not issue except to command
the fulfilment of some
duty of a public nature which remains unperformed. If the person under the
duty professes to perform it but
what he actually does amounts in law to no
performance because he has misconceived his duty or, in the course of
attempting to discharge
it, has failed to comply with some requirement
essential to its valid or effectual performance, he may be commanded by the
writ to
execute his function according to law de novo, at any rate if a
sufficient demand or request to do so has been made upon him. In
the case of a
tribunal, whether of a judicial or of an administrative nature charged by law
with the duty of ascertaining or determining
facts upon which rights depend,
if it has undertaken the enquiry and announced a conclusion, the prosecutor
who seeks the writ of
mandamus must show that the ostensible determination is
not a real performance of the duty imposed by law upon the Tribunal. It may
be
shown that the members of the Tribunal have not applied themselves to the
question which the law prescribes, or that in purporting
to decide it they
have in truth been actuated by extraneous considerations, or that in some
other respect they have so proceeded
that the determination is nugatory and
void. But the prosecutor who undertakes to establish that a tribunal has so
acted ought not
to be permitted under colour of doing so to enter upon an
examination of the correctness of the tribunal's decision, or of the
sufficiency
of the evidence supporting it, or of the weight of the evidence
against it, or of the regularity or irregularity of the manner in
which the
tribunal has proceeded. The correctness or incorrectness of the conclusion
reached by the tribunal is entirely beside the
question whether a writ of
mandamus lies."

   72. This formulation was adopted by Lathan CJ in The King v Blakeley ex
Parte Association
of Architects, Engineers, Surveyors and Draughtsmen of
Australia  [1950] HCA 40; (1950) 82 CLR 54.

  

   73. The grounds upon which certiorari may properly issue were summarised by
the High Court of Australia
in Craig v South Australia [1995] HCA 58;  (1995) 184 CLR 163 per
Brennan, Deane, Toohey, Gaudron and McHugh JJ at 175-176:

  

  

   "Where available, certiorari is a
process by which a superior court, in the
exercise of original jurisdiction, supervises the acts of an inferior court or
other tribunal.
It is not an appellate procedure enabling either a general
review of the order or decision of the inferior court or tribunal or a
substitution of the order or decision which the superior court thinks should
have been made. Where the writ runs, it merely enables
the quashing of the
impugned order or decision upon one or more of a number of distinct
established grounds, most importantly, jurisdictional
error, failure to
observe some applicable requirement of procedural fairness, fraud and 'error
of law on the face of the record'.
Where the writ is sought on the grounds of
jurisdictional error, breach of procedural fairness or fraud, the superior
court entertaining
an application for certiorari can, subject to any
applicable procedural and evidentiary rules, take account of any relevant
material
placed before it. In contrast, where relief is sought on the ground
of error of law on the face of the record, the superior court
is restricted to
the 'record' of the inferior court or tribunal and the writ will enable the
quashing of the impugned order or decision
only on the ground that it is
affected by some error of law which is disclosed by that record."

   74. Their Honours qualified their
summary with the observation that it
glossed over a number of difficulties about the content of the grounds and
identified two such
difficulties, one relating to the nature of
"jurisdictional error" and the other relating to the issue of what constitutes
"the record"
for the purpose of determining whether there is "error on the
face of the record".

  

   75. The former is of some significance
in the present case. Their Honours
observed that it is necessary to distinguish between inferior courts which are
amenable to certiorari
and other tribunals exercising governmental powers
which are also amenable to the writ. An inferior court falls into
jurisdictional
error if it mistakenly asserts or denies the existence of
jurisdiction or misapprehends or disregards the nature or limits of its
functions or powers. A decision based upon such errors may be quashed by
certiorari. However since a court of law has authority to
decide questions of
law as well as fact, any failure to identify the relative issues and determine
the relevance of evidence may
be challenged on appeal but will not normally
constitute jurisdictional error. Similarly, a failure by an inferior court to
take
into account some essential matter will not normally involve
jurisdictional error. In contrast, unless there is some clear expression
of
legislative intention to contrary, administrative tribunals are presumed not
to have the power to decide questions of law. Hence,
the principles expressed
in the following passage from Lord Reid's speech in Anisminic Ltd v Foreign
Compensation Commission [1968] UKHL 6;  [1969] 2 AC 147, at 171, will normally apply to such
tribunals:

  

  

   "there are many cases where, although the tribunal
had jurisdiction to
enter on the inquiry, it has done or failed to do something in the course of
the inquiry which is of such a nature
that it's decision is a nullity. It may
have given its decision in bad faith. It may have made a decision which it had
no power to
make. It may have failed in the course of the enquiry to comply
with the requirements of natural justice. It may in perfect good
faith have
misconstrued the provisions giving power to act so that it failed to deal with
the question remitted to it and decided
some question which was not remitted
to it. It may have refused to take into account something which it was
required to take into
account. Or it may have based its decision on some other
matter which, under the provision setting it up, it had no right to take
into
account. I do not intend this list to be exhaustive. But if it decides a
question remitted to it for decision without committing
any of these errors it
is as much entitled to decide that question wrongly as it is to decide it
rightly."

   76. Mr Einfeld submitted
that the Commissioner fell into jurisdictional
error in a number of respects.

  

   77. First, he contended that the Commissioner
had no power to approve the
application in the absence of a preliminary assessment. That was said to
follow from the terms of section 231 of the Land (Planning and Environment)
Act 1991 which provides that before approving or refusing to approve an
application the relevant authority shall consider various matters
including "a
preliminary assessment under Division 2 of Part IV, or a report under section
128". Mr Einfeld argued that since no assessment or report answering this
description existed at the time of the relevant decision to approve
the
application, the Commissioner had been unable to comply with the requirements
of section 231. Those requirements were mandatory and compliance with them was
essential to the valid exercise of power under section 230.

  

   78. I am unable to accept this contention. It is true that the terms of
section 114 make it mandatory for the minister to require a preliminary
assessment of the environmental impact of a proposal where the defined
decision is of a class prescribed by the Plan, but the power provided by
section 113 to require assessments of that nature is otherwise discretionary.
Accordingly, the legislation contemplates that decisions will be
made under
section 230 in circumstances where no preliminary assessment exists.
Consequently, it seems to me that the terms of paragraph (a)(iii) of
subsection
231(1) must be read as requiring the relevant authority to consider
any assessment or report of the relevant kind that might be available.
The
construction for which Mr Einfeld contends would involve the somewhat bizarre
consequence that if the minister declined to exercise
his power under section
113, even in circumstances where he was plainly entitled to so decline, that
decision would inevitably condemn the application to forever
remain unresolved
since it could be neither approved nor refused. I do not accept that section
231 should be so construed.

  

   79. In any event, as Mr Walker pointed out, subsection 229A (5) requires
the Commissioner to determine
all applications referred to him or her under
subsection (3) or (4) and the present application fell into that category.
There is
nothing in the statute to indicate that that obligation should be
regarded as having been suspended in the event that the relevant
minister
decides, whether rightly or wrongly, that he is not bound to require the
preparation of a preliminary assessment.

  


  80. Secondly, Mr Einfeld argued that since the application was of the class
described in section 114 it had been mandatory for the relevant minister to
issue a notice requiring the provision of such a preliminary assessment and
his
failure to do so had inevitably tainted any decision under section 230.

  

   81. Section 114 applies only where a defined decision is of a class
prescribed by the Plan. It was common ground that the decision fell within the
class prescribed by Schedule II.1 of the Plan unless it could be said to fall
within one of the following exceptions:

  

  

 
 "(a) the proposal is an alteration or addition to an existing situation
which does not cause significant change in the scale, size
or purpose of the
existing situation; (b) the proposal represents part or a whole of a proposal
which has previously been the subject,
directly or indirectly, of a previous
assessment or has been the subject of another form of investigation which
would satisfy the
requirements of a preliminary assessment under the Land Act;
or (c) it is intended, by agreement with the Commonwealth, a State or
other
Territory, that the proposal will be assessed by such an authority."

   82. The Minister's delegate determined that a preliminary
assessment was
not required because "the proposal does not constitute significant change in
scale, size or purpose of the existing
situation, and as social impacts of the
existing situation have already been addressed at length . . ."

  

   83. Neither this
determination nor any perceived failure to comply with the
requirements of section 114 can be challenged in the present proceedings
for
prerogative relief. The power created by section 113 vests in the "relevant
minister" and any obligation under section 114 is
imposed upon that minister.
Yet the minister has not been joined as a party and the relevant decision or
failure of compliance is
not directly challenged in the pleadings.

  

   84. However, if the issue had fallen for determination in these proceedings
I would
not have been satisfied that the first respondent had erred in
concluding that the proposal was not one to which section 114 applied,
at
least insofar as he concluded that the proposal involved an alteration which
did not cause "significant change in the scale, size
or purpose of the
existing situation". The proposal involved, in substance, some division of the
existing premises so that the Casino
would be confined to a smaller area than
that presently designated and the remainder of the premises could be used for
the purposes
of a club. There would be no change in the size of the building.
The appellant's complaints of the change in purpose relate primarily
if not
solely to the likelihood that that portion of the premises to be occupied by
the club might ultimately be equipped with poker
machines. The use of poker
machines would add one further form of gambling, albeit in a separate portion
of the building, but this
would be offset by the diminution in the space
available for the gambling activities otherwise performed within the Casino.
In my
view, it was open to the first respondent to come to the view that
overall, this did not involve a significant change in the purpose
of the
existing situation. Hence it was open to the first respondent to conclude that
the application fell within an exception recognised
by the Territory Plan.

  

   85. Thirdly, Mr Einfeld submitted that it had been incumbent upon the
second respondent to refuse
the application because approval of the proposed
change in the purpose clause would have facilitated an illegal purpose in that
it
would ultimately facilitate the use of poker machines contrary to the
Casino Control Act and the Gaming Machines Act . For reasons
previously
discussed I do not accept that the decision gave rise to any such illegality.

  

   86. Fourthly, Mr Einfeld submitted
that the Commissioner had erred in
failing to consider the social and economic effects of the proposed
development and other public
interest factors disclosed by relevant statements
of government policy. However, as Mr Walker pointed out, the Commissioner is
not
a delegate of the Minister but an independent statutory officer appointed
under section 274A of the Land (Planning and Environment) Act . In these
circumstances, it is difficult to accept that he is bound to adopt statements
of policy, whether made by the relevant
minister or some other government
official. In any event, it is clear from the statement of reasons that the
public interest was
duly considered.

  

   87. Fifthly, the decision was attacked on the basis that he had failed to
take into account the likely impact
of competition with other established
licensed clubs. The Commissioner has described this as a "market place issue"
and one which
was not a legitimate planning consideration in the context. Mr
Einfeld again relied upon the contention that the public interest
and the
interest of clubs coincide because clubs give a significant amount of money to
charity each year and provide other services
which are generally in the public
interest. As previously mentioned, I accept that there may be circumstances in
which it would be
appropriate for the relevant authority to take into account
the fact that approval of the relevant application would be inimical
to
certain charitable purposes. However, there is. nothing in the Land (Planning
and Environment) Act to suggest that philanthropists are to have entitlements
not conferred upon their less generous fellows or that their protection
from
competition should be considered part of the public interest for planning
purposes.

  

   88. Furthermore, even if the Commissioner
had taken the view that clubs
were entitled to some pre-eminent position it is difficult to see how he could
have regarded their
interests as having been eroded in any relevant sense by a
change in purpose clause to permit the use by a club of premises which
had
previously been unavailable to them. Such a change may facilitate further
competition but as Higgins J pointed out in Jewels
Food Stores v the Minister
269 at 280, owners of commercial premises normally have no legitimate
expectation that competition will
be restricted so as to protect their
economic interests. Indeed, such an expectation might well be considered to be
contrary to the
public interest. Whilst clubs may be in a somewhat different
position to normal commercial enterprises, I do not accept that it is
incumbent upon the Commissioner to give priority to their interests. The
statement of reasons indicate that the grounds of objection
were considered
though they were ultimately rejected.

  

   89. I do not accept that the prospect of the change of purpose clause
ultimately leading to some potential for added competition gives rise to a
public interest consideration such that a failure to take
it into account in
considering an application of this nature will render the decision liable to
be quashed by certiorari. In any
event, to the extent to which this issue was
raised in the objections, I am satisfied that it was in fact, taken into
account by
the Commissioner.

  

   90. Having considered all of the matters advanced by Mr Einfeld, I am not
satisfied that any error of jurisdiction
has been demonstrated.

  

   91. It is also clear that prerogative relief is discretionary. See, for
example : The Queen v Cook;
Ex parte Twigg [1980] HCA 36;  (1980) 147 CLR 15 and R v Medical
Board of the Australian Capital Territory; Ex parte Davis (1995) 125 FLR 401.
In the present
case there are a number of considerations which would incline
me to refuse to grant any prerogative relief in the exercise of that
discretion.

  

   92. First, much of the appellant's complaints concerned the fact that the
decision was made without any preliminary
assessment of the environmental
impact of the decision. Yet, as previously observed, the Commissioner would
have no power to require
such an assessment and if I were to quash the
existing approval any reconsideration of the application would presumably
still occur
without the assistance, if any, that may have been derived from
such a report.

  

   93. Secondly, I have the firm impression that
all relevant matters were
duly considered.

  

   94. Thirdly, if notwithstanding that impression if I were to conclude that
there
had been some error of jurisdiction I would nonetheless remain of the
view that there was no reason to suppose that any of the other
factors
referred to by Mr Einfeld during the course of argument would be likely to
induce the Commissioner to take a different view
of the application.

  

   95. Fourthly, the application for prerogative relief was made some nine
months after the relevant decision
and during the intervening period the
appellants had the benefit of legal advice and had pursued much the same
arguments in proceedings
before the Administrative Appeals Tribunal. Whilst a
delay of that magnitude may be of little significance in other circumstances
it seems to me that a party seeking to limit the use of commercial premises
must act promptly. It is true that the second respondent
did not seek to
adduce any evidence of financial loss or other actual prejudice suffered as a
result of the delay. However, as Mr
Rayment made clear, the lease variation is
only the first step that must be taken if a club is ultimately to be permitted
to operate
poker machines on the site. Consequently, it may be impossible to
demonstrate the nature and extent of any prejudice that might eventually
be
suffered. Yet the potential for real prejudice to be caused to the second
respondent is undeniable. In the present case, the potential
prejudice caused
by such a delay has not been ameliorated by any offer of an undertaking as to
damages.

  

  "The application under
the Administrative Decisions (Judicial Review) Act 1989"

  ""

  ""96. Further issues arise in relation to the standing of the appellants to
apply for a review of the Commissioner's decision
under section 5 of the
Administrative Decisions (Judicial Review) Act .

  

   97. The relevant test is whether either appellant is a "person who is
aggrieved" by the decision. Subsection 3(4) provides
that a reference to this
term includes a reference to a "person whose interests are adversely affected"
by the decision. As previously
mentioned, the requirement that a person be
aggrieved has been broadly construed but involves at least a grievance
suffered beyond
that experienced as a ordinary member of the community. These
terms have also been construed in the context of the corresponding
Commonwealth statute. They have been held to require the existence of a
special interest which is imperiled in some way by the decision
: Tooheys Ltd
v Minister for Business and Consumer Affairs at 79 ; US Tobacco Co v Minister
for Consumer Affairs at 87; and Queensland
Newsagents Federation Ltd v Trade
Practices Commission (1993) 46 FCR 38 at 43. In Rayjon Properties Pty Ltd v
Department of Housing,
Local Government and Planning (Qld) (1994) 85 LGERA
251, at 253, Thomas J referred to these decisions in construing the same terms
in similar Queensland legislation and held, not surprisingly, that it was not
sufficient for a commercial competitor to complain
that he had lost the
advantage of seeing his rival hindered, frustrated or delayed.

  

   98. Each application for review also
included the claim that the relevant
appellant was aggrieved because "it considers the decision to be contrary to
law". Subsection
3(4) recognises that a person may be so aggrieved in the case
of decisions made under certain statutes including the Land (Planning and
Environment) Act. Despite the absence of any words of limitation, I do not
interpret this provision as deeming any potential objector to be a person
aggrieved simply because he or she may hold a view that the decision was
incorrect in law. As Gibbs J pointed out in Australian Conservation
Foundation
v The Commonwealth [1979] HCA 1;  (1980) 146 CLR 493 at 530, albeit in a quite different
context, if a belief that the law should be enforced in a particular manner
were to be sufficient to give standing then anyone who felt strongly enough to
bring an action could maintain it. It seems unlikely
that the legislature
intended to confer on mere busybodies or meddlers a right to apply to the
Supreme Court for an order of review.
In my view it remains necessary for a
potential applicant to have a grievance suffered beyond that experienced as an
ordinary member
of the community though the section appears to recognise that
a person who has such a special interest may be aggrieved even though
that
interest has not been adversely affected by the decision if he or she
considers that decision to be wrong in law. Mr Einfeld
did not make any
submission to the contrary though he did contend, in my view correctly, that
the test was a broad one.

  

   99.
It is true, of course that different terminology has been employed in
the description of the test for standing under The Administrative Decisions
(Judicial Review) Act. However, the issues raised by the appellants in
relation to that test are essentially the same as those raised in relation to
rights
of objection under section 237 of the Land (Planning and Environment)
Act .

  

   100. For the reasons previously given in relation to those issues, I am not
satisfied that either appellant has any special
interest of a kind that would
enable it to be regarded as a "person aggrieved", even if it genuinely
considers the decision of the
Commissioner to be contrary to law. Accordingly,
I find that the appellants lack standing to apply for an order of review.

  


  101. Furthermore, even if the appellants had been able to establish
standing, their applications would have faced formidable difficulties.

  

   102. The first such difficulty would have arisen from the fact that the
applications were filed outside the application period
and the appellants
needed to establish adequate grounds for an extension of time.

  

   103. Despite the absence of any supporting
affidavit Mr Einfeld submitted
that the facts were clear from the record of proceedings and not in dispute.
The grounds for extending
time were both straightforward and compelling. The
appellants had quite properly proceeded to exhaust their rights of review
under
section 276 of the Land (Planning and Environment) Act before seeking
alternative relief. The applications to the Tribunal had been dismissed only
because of rulings concerning the standing
of the appellants. The appellants
had not anticipated those rulings. The substantive issues relating to the
decision to approve the
lease variation had still not been reviewed. Any
prejudice to the position of the second respondent had not been caused by the
appellant's
failure to pursue their rights in a timely manner.

  

   104. In other circumstances, I would have readily acceded to this
submission
but in the present case other discretionary considerations arise.
It would plainly be inappropriate to grant an extension of time
to permit an
applicant to commence proceedings which it had no standing to bring. However,
even if the appellants had been able to
establish standing the second
respondent would have been entitled to raise other considerations of some
cogency.

  

   105. The
lease variation had potentially important consequences for the
commercial interest of the second respondent. As previously mentioned,
it
seems to me that a delay of several months might be significant and
significant loss or prejudice might ultimately be caused.
On the other hand,
the position of the first appellant was jeopardised, if at all, only by the
possibility that the change in purpose
clause might enable a club to be
operated in the relevant premises, that other legal impediments to the
operation of poker machines
in those premises might be removed and, in that
event, there might be some further competition for the revenue generated by
the operation
of such machines. The second appellant will apparently suffer no
detriment save insofar as its interests may be said to be affected
by the
potential for increased competition for its members.

  

   106. Nonetheless, the appellants have sought to raise a number
of issues of
public policy and whilst I have held that these are insufficient to establish
standing they would clearly be relevant
to any review of the Commissioner's
decision which might be undertaken pursuant to section 5 of the Administrative
Decisions (Judicial Review) Act . It seems to me that the validity and weight
of the appellants' contentions may also be of relevance. Accordingly, the
appellants'
applications for extension of time should be considered in the
light of the substantive issues which they seek to raise on the hearing
of
their applications for review.

  

   107. The only grounds upon which a decision may be reviewed are those
stipulated in section 5. That section is in the following terms:

  

   (1) A person who is aggrieved by a decision to which this Act applies that
is made
after the commencement of this Act may apply to the Supreme Court for
an order of review in respect of the decision on any 1 or more
of the
following grounds:

  

   (a) that a breach of the rules of natural justice occurred in connection
with the making of the
decision;

  

   (b) that procedures that were required by law to be observed in connection
with the making of the decision were
not observed;

  

   (c) that the person who purported to make the decision did not have
jurisdiction to make the decision;

  

   (d) that the decision was not authorised by the enactment under which it
was purported to be made;

  

   (e) that the making
of the decision was an improper exercise of the power
conferred by the enactment under which it was purported to be made;

  

 
 (f) that the decision involved an error of law, whether or not the error
appears on the record of the decision;

  

   (g) that
the decision was induced or affected by fraud;

  

   (h) that there was no evidence or other material to justify the making of
the decision;

  

   (j) that the decision was otherwise contrary to law.

  

   (2) The reference in paragraph (1)(e) to an improper
exercise of a power
includes a reference to -

  

   (a) taking an irrelevant consideration into account in the exercise of a
power;

  

   (b) failing to take a relevant consideration into account in the exercise
of a power;

  

   (c) an exercise of a power
for a purpose other than a purpose for which the
power is conferred;

  

   (d) an exercise of a discretionary power in bad faith;

  

   (e) an exercise of a personal discretionary power at the direction or
behest of another person;

  

   (f) an exercise of
a discretionary power in accordance with a rule or
policy without regard to the merits of the particular case;

  

   (g) an exercise
of a power that is so unreasonable that no reasonable
person could have so exercised the power;

  

   (h) an exercise of a power
in such a way that the result of the exercise of
the power is uncertain; and

  

   (j) any other exercise of a power in a way that
constitutes abuse of the
power.

  

   (3) The ground specified in paragraph (1)(h) shall not be taken to be made
out unless -

  

   (a) the person who made the decision was required by law to reach that
decision only if a particular matter was established,
and there was no
evidence or other material (including facts of which he or she was entitled to
take notice) from which he or she
could reasonably be satisfied that the
matter was established; or

  

   (b) the person who made the decision based the decision
on the existence of
a particular fact, and that fact did not exist.

  

   108. In each case the grounds of application are as follows:

  

   1 Although the first respondent was advised, and the second respondent
accepted, that the decision was a defined decision
of a class prescribed by
the Territory Plan in effect under the Land Act ("the Plan") for the purposes
of s114 of the Land Act, he
nevertheless made his decision:

  

   (a) in the absence of a mandatory preliminary assessment required by ss
113, 114 115 and
231 of the Land Act; and

  

   (b) without having considered or evaluated any such mandatory preliminary
assessment .

  

   2
Although the first respondent found that his decision was subject to the
provision of the Plan, he nevertheless failed to consider
or take into
account:

  

   (a) the significant social and economic effects of the development for
which the second respondent
had applied,

  

   (b) the public interest,

  

   (c) government policy, or

  

   (d) the unlawful use of the demised premises
that the Variation would
permit,

  

   all of which are referred to in Appendix I.2 of the Plan.

  

   3 In the premises:

 


   (a) the procedures that were required by the Land Act and the Plan to be
observed in connection with the making of the decision
were not observed;

  

   (b) the decision was not authorised by the Land Act;

  

   (c) the making of the decision was an improper
exercise of the power
conferred on the first respondent by the Land Act, in that the first
respondent failed to take relevant considerations
into account in the exercise
of the power;

  

   (d) the decision involved an error of law; and

  

   (e) the decision was otherwise
contrary to law.

  

   109. In supporting these grounds, Mr Einfeld again relied upon submissions
attacking the decision not to
require a preliminary assessment which, he
claimed, was mandatory.

  

   110. In my view this decision can no more be impugned
in the proceedings
under the Administrative Decisions (Judicial Review) Act than it could in the
proceedings for prerogative relief. Again, the "relevant minister" has not
been joined as a party and neither
the decision that a preliminary assessment
was not required nor any perceived failure to comply with section 114 has been
directly
challenged. Nor do I accept that the jurisdiction legitimately
invoked by the application for review of the approval of the lease
variation
extends to authorise any review of such a decision or failure of compliance.
In the Tradesmens Union Club & Ors the
Minister for the Environment Land
and Planning & Anor (unreported SCACT, 18 December 1997) I expressed the
view that section
276 did not authorise an application to the Administrative
Appeals Tribunal to review a decision under section 113 or any alleged
failure
to comply with the terms of section 114 of the Act. The definition of the term
"approval" in section 222 of the Act has since
been amended but only in a
manner which reflects the repeal of sections 240 and 241. For the reasons
expressed in that judgment I
remain of the view that it is not open to the
Tribunal to review such a decision or perceived breach of duty either directly
or by
treating it as falling within the powers and discretions conferred on
the relevant decision maker for the purpose of section 44(1) of the
Administrative Appeals Tribunal Act . In the present case, there is a further
impediment to any contention that any such decision may be reviewed as a
result of the
jurisdiction conferred by section 44(1) in that any perceived
failure to comply with section 114 of the Land (Planning and Environment) Act
would have been a failure by the relevant minister as a result of an allegedly
erroneous decision by his or her delegate, whilst
the decision to approve the
change in purpose clause was made by the Commissioner. Consequently, there is
no conceivable basis for
any contention that the power and/or duty conferred
by one or both of those sections fell within the description of "powers and
discretion
that are conferred by any relevant enactment on the person who made
the decision". Section 17 of the Administrative Decisions (Judicial Review)
Act is in less expansive terms and similarly fails to authorise any ancillary
inquiry into the merits of such a decision.

  

   111.
That does not mean that the relevant minister's failure to comply with
section 114 could not be challenged under the Administrative
(Decisions
Judicial) Review Act if it could be regarded as an administrative decision.
The Minister's delegate had undoubtedly made
an administrative decision to the
effect that section 114 did not make notice requiring a preliminary assessment
mandatory because
the proposal fell within one or more of the exceptions in
Schedule II.1 of the Plan. However Mr Rayment argued that section 114 does
not
require the Minister to make a decision. It merely requires him or her to
issue a notice requiring a preliminary assessment in
certain circumstances. He
maintained that the section is "objective" and does not confer any discretion
on a person such as the delegate
who decides whether the proposal falls within
any of the exceptions.

  

   112. Section 3 of the Administrative Decisions (Judicial Review) Act
provides that the Act applies to decisions of an administrative character
"made, proposed to be made or required to be made . . .
under an enactment . .
.". Whilst I am inclined to agree with Mr Rayment's submission that the
decision made by the Minister's delegate
does not answer this description, I
am not required to make any final determination of this issue in these
proceedings because the
applications do not purport to challenge any such
decision and neither the Minister nor the delegate have been joined as
parties.

  

   113. Since the review sought could not extend to any such decision the
present proceedings must be resolved upon the assumption
that the decision of
the minister may not be impugned.

  

   114. Alternatively, Mr Einfeld submitted that the first respondent
had
fallen into error by failing to take into account the relevant minister's
failure to comply with the requirements of section
114 and/or the absence of
any preliminary assessment that would have been obtained but for that failure.

  

   115. In my view
these submissions are also unsustainable. For reasons
previously given, I do not accept that the first respondent was deprived of
jurisdiction to determine the application for approval of the lease variation
because of any decision not to require such an assessment,
even if that
decision could be said to have involved contravention of section 114.
Furthermore, even if the Commissioner had thought
that there had been some
breach of section 114, and there is no evidence to suggest that he did, he
would not thereupon have become
obliged or even entitled to refuse to exercise
his duty to make a decision under section 230. Nor, in my view, would he have
been
entitled to take the view that any perceived contravention of section 114
required him to refuse approval under that section. Of
course, the absence of
a preliminary assessment necessarily meant that the first respondent was
deprived of any additional information
that might have been thereby provided
and, if he had not been satisfied that the material available to him was
sufficient to enable
him to make a decision in accordance with his statutory
responsibilities, it would have been open to him to have refused the
application.
In particular, it would have been open to him to have taken the
view that in the absence of a preliminary assessment he could not
be satisfied
that the proposal was not inimical to the public interest. However, that was a
judgment for the first respondent to
make in the context of all of the
information then available to him. The Act does not authorise the court to
review that exercise
of judgment.

  

   116. The other grounds upon which the appellants sought review related to
contentions that the first respondent
had failed to consider or take into
account the various matters referred to in ground 2 of the applications. In my
view, these contentions
must also be rejected. The statement of reasons
suggests that the first respondent took into account the matters which had
been raised
in the appellants' objections.

  

   117. If, having taken those considerations into account, the first
respondent made a decision
which he was authorised to make, that decision
cannot be challenged under section 5 of the Act by the mere contention that
the relevant
considerations should have induced him to decide the matter
differently. Furthermore, for the reasons previously expressed I do not
accept
the validity of the contention that the lease variation would permit "the
unlawful use of the demised premises". It was not
incumbent upon the first
respondent to take into account that consideration because the proposition
was, in my view, manifestly incorrect.

  

   118. In all of the circumstances, I am not satisfied that the issues which
the appellants raised in support of their applications
for review justified
granting an extension of time and having regard to the other discretionary
factors to which I have referred
I have concluded that their applications
should be refused. Nor am I satisfied that any grounds for review under the
Administrative Decisions (Judicial Review) Act have in fact been established.

  

   119. In deference to the submissions which have been made I should,
perhaps, mention section
9(2) of the Act which provides, inter alia, that the
court may, in its discretion, refuse to grant an application for review if -

  

   (i) the applicant has sought a review by a court including the Supreme
Court of the matter otherwise than under this Act;

  

   (ii) adequate provision is made by a law other than this Act under which
the applicant is entitled to seek a review of that
matter; or

  

   (iii) the matter to which the application relates arises under the
Buildings (Design and Siting) Act 1964 , the
Land (Planning and Environment)
Act 1991 or the Heritage Objects Act 1991 and is a matter being reviewed, or
for which application has been made for review, under a law other
than this
Act, whether on the application of the person who has made application to the
Supreme Court for review of the matter under
this Act or any other person.

  

   120. However, having regard to the view which I have taken of the appeals
from the decision
of the Tribunal, I would not have refused the present
applications on any of these bases.

  

  "The significance of registration
under the Land Titles Act"

  ""

  ""121. A further impediment to the relief which the appellants seek arises from
the fact that the lease variation has now
been registered. Hence it has
effectively varied the lease and any arguments about the validity of the
approval which authorised
that variation may be of merely academic interest.

  

   122. Mr Einfeld sought to meet this consideration by adverting to section
161 of the Land Titles Act 1925 which is in the following terms:

  

   161 (1) In any proceedings in which the correctness or otherwise of the
Register is in issue,
the Court may require the Registrar-General to correct
the Register or direct the Registrar-General not to do so.

  

   (2) In
any proceedings in the Court in relation to -

  

   (a) any land;

  

   (b) any transaction, contract or application relating
to land; or

  

   (c) any instrument, memorial or other entry affecting land;

  

   the Court may, by order, direct the Registrar-General
-

  

   (d) to correct, record, substitute, issue or cancel any certificate or
memorial, or to correct, record, substitute, make
or cancel any entry in the
Register, notwithstanding that the relevant duplicate certificate has not been
produced to the Registrar-General;
or

  

   (e) otherwise to do any acts and make any entries that are necessary to
give effect to any judgment or order of the Court
given or made in those
proceedings;

  

   and the Registrar-General shall give effect to such a direction.

  

   (3) An order
made under subsection (2) is not effective to vest a
registrable interest in any person before the appropriate entry is made in the
Register.

  

   123. He submitted that subsection (2) confers upon the court a discretion
which is unlimited in its terms and wide
enough to apply in the present
circumstances. The indefeasibility of title generally conferred by the Land
Titles Act is, he contended, limited at least in relation to the period before
a bona fide purchaser or mortgagee acquires an indefeasible title.
Indeed, he
maintained that the need to preserve the effectiveness of objections and
applications to the Tribunal provides a compelling
reason for the court to
exercise the discretion. As he put it in his submission, if the horse has
bolted then the subsection enables
the court to catch it and put it back where
it should be.

  

   124. In answer to this contention Mr Walker submitted that the
section was
merely facultative in that it conferred a power on the court to grant
incidental relief when fraud or some other relevant
cause of action had been
established. It is plain that such relief could not be granted as an incident
of the present proceedings.
The relief sought in the present proceedings is
limited to orders quashing the relevant approval and remitting the matter to
the
Commissioner or the Administrative Appeals Tribunal for further
consideration.

  

   125. Any construction of the power conferred
by section 161 must plainly
occur in the context of the statutory scheme of which it is a part. Section
57(1) provides that the relevant estate or interest in land vests upon
registration. Section 58 is in the following terms:

  

   Notwithstanding the existence in any other person of any interest, whether
derived by grant from
the Crown or otherwise, which but for this Act might be
held to be paramount or to have priority, a person becoming registered as
proprietor of land or of any interest in land under this Act shall, except in
case of fraud, hold the land or interest, subject to
such interests as are
notified on the folium of the Register constituted by the grant or certificate
of title of the land, but absolutely
free from all other interests whatsoever
except as to -

  

   (a) the interest of a proprietor claiming the same land under a prior
certificate of title or under a prior grant registered under this Act;

  

   (b) any right of way or other easement created in
or existing upon the same
land which is not described, or is misdescribed in the relative certificate of
title;

  

   (c) any portion
of land that may be wrong description of parcels or of
boundaries be included in the grant, certificate of title, lease or other
document or instrument evidencing the title of the registered proprietor, not
being a purchaser or mortgagee thereof for value, or
deriving from or through
a purchaser or mortgagee thereof for value;

  

   (d) any prior tenancy for a term not exceeding 3 years;

  

   (e) any eases, licences or other authorities granted by the Territory and
in respect of which no provision for registration
is made; and

  

   (f) any unpaid rates, taxes or other moneys which are expressly declared by
any Act or law to be a charge upon
land:

  

   Provided that the land which is included in any certificate of title or
registered instrument shall be deemed to be
subject to the reservations,
exceptions, conditions and powers (if any) contained in the grant thereof.

  

   126. Section 154
provides, inter alia, that a person deprived of any land
or interest in land by the registration of an adverse interest may bring
an
action for damages whilst sections 143 and 144 enable recovery from the
Australian Capital Territory in certain circumstances.

  

   127. In this context I am unable to accept that in enacting section 161 the
legislature intended to create a broad discretion
to destroy or vary estates
or interests in real property. It is true that an obvious distinction may be
drawn between estates or
interests in land and lease variations such as the
one in question, but no such distinction is reflected in the terms of the
section.
Those terms either give rise to a broad discretion in relation to all
entries on the register sufficient to enable substantive rights
to be impugned
or they merely authorise the court to correct the register in order to reflect
the findings and orders of the court
consequent upon the establishment of a
sufficient cause of action. In my view the latter construction is the correct
one and, as
Mr Walker has submitted, the section is facultative.

  

   128. No action has been brought which purports to invoke the terms of
section 161 and, whilst Mr Einfeld foreshadowed further proceedings if his
clients were ultimately successful in persuading the Commissioner
to refuse
the application, it is difficult to see what cause of action could be pleaded
which would give the appellants a viable
claim for relief of that kind. The
appellants do not assert that they have any interest in the land in question
and would not have
been entitled to lodge a caveat under section 30 to prevent
the registration of the lease variation. Furthermore, there can be no
suggestion of fraud and the issues raised by the appellants do not fall within
any of the exceptions provided by section 58. There
is certainly nothing in
the Land Titles Act or the Land (Planning and Environment) Act to suggest that
such a power could be invoked at the instance of a third party claiming no
interest in the relevant land but merely
pointing to perceived errors in the
approach taken by government officials who had given some antecedent approval.
It seems to me
that to accept that the normal indefeasibility of title could
be impugned in this manner would seriously erode public confidence
in the
whole system of land tenure in the Australian Capital Territory.

  

   129. Mr Einfeld submitted that the answer to this
concern was to be found
in the principle that a bona fide purchaser for value without notice of the
invalidity of the antecedent
approval would be entitled to maintain the
indefeasibility of his or her title, but he maintained that the title was
defeasible under
section 161 whilst it remained in the hands of the original
lessee. Such a distinction might make sense when title to land has been
obtained
fraudulently. In those circumstances, it is obviously appropriate
that the court be empowered to take from the initial transferee
the fruits of
his or her own fraudulent or illegal behaviour whilst maintaining
indefeasibility in respect of any bona fide purchaser
for value who has taken
the interest in land without notice of the fraud. In cases such as the
present, however, the distinction
is meaningless. It is not suggested that the
second respondent was guilty of fraud or of any illegal conduct. At the time
the lease
variation became effective the second respondent was aware that the
Commissioner had approved the variation notwithstanding the objections
made by
the appellants and also aware that the Tribunal had ruled that they had lacked
the standing to be objectors or to maintain
proceedings to review the
approval. Furthermore, as previously mentioned, the second respondent had paid
a substantial sum for betterment
tax. Consequently, apart from the fact that
it was the party originally entitled to the benefit of the lease variation, it
was in
no different situation than that of any other bona fide purchaser for
value without notice of illegality.

  

   130. Even if some
cause of action could be devised which would provide some
legal basis for invoking the discretion which Mr Einfeld maintains is
conferred
by section 161(2) there would be sound reasons for declining to
exercise any such discretion. There has been no suggestion that the lessee has
been
guilty of any impropriety. The relief sought in the present proceedings
is dependent entirely upon allegations that the Commissioner
made certain
errors in the discharge of his statutory responsibility. It is not suggested
that the second respondent caused or contributed
to those errors. The approval
apparently became effective, by virtue of section 249 of the Land Act , on the
day on which it was
given or, at any rate, no later than the day on which the
Tribunal ruled that the appellants had not had standing to object under
section 237 or apply for review under section 276. In reliance upon the
effectiveness of that approval the lessor issued the variation
of lease and
the lessee paid the sum of $30,000 betterment tax. The Executive then
proceeded to have the variation of lease registered
in accordance with its
statutory obligation under section 250. The appellants, who were represented
throughout the proceedings conducted
before the Administrative Appeals
Tribunal by senior counsel, must be taken to have been aware of these
statutory provisions. In
any event, the statement of reasons for the approval,
which was a document tendered during those proceedings, made it plain that
the
approval was subject to the condition that the lessee do all that was
necessary to ensure that the instrument was registered
within 14 days of being
notified that it was available for registration. Despite this, the appellants
took no steps to restrain the
lessor from registering the relevant instrument
pending any appeal from the Administrative Appeals Tribunal or any other
proceeding.
They did not even foreshadow the likelihood of such proceedings
and request that registration be deferred.

  

   131. For these
reasons, I am of the view that any application under section
161 of the Land Titles Act would inevitably fail. Consequently, even if the
validity of the approval for the lease variation could now be impugned that
would
not enable the appellants to have the lease further varied so that the
purpose clause reverted to its former terms. Accordingly,
I am of the view
that there would be no utility in granting any of the relief sought in these
proceedings and I would in any event
have dismissed them on that ground.

  

   132. Mr Walker also argued that none of the proceedings before me could
properly be regarded
as proceedings of the kind referred to in subsection
161(2). In support of this contention he relied by way of analogy on
Comptroller-General
of Customs & Anor v Kawasaki Motors Pty Ltd (No 2) [1991] FCA 518; 
(1991) 32 FCR 243 in which the Full Court of the Federal Court of Australia
held that proceedings for judicial review of administrative
decisions
concerning customs duty and seeking a refund of the monies paid as a
consequence were not proceedings for the recovery
of money. I am inclined to
think that this decision is distinguishable because the description of
relevant proceedings in section 161 is significantly wider than that with
which the Full Court was concerned. In particular, it extends to "any
proceedings . . . in
relation to, . . . any . . . application relating to
land". That formulation would seem to be apposite to describe the present
proceedings.
However, this issue does not arise for determination. Mr Einfeld
has not sought relief under section 161 in these proceedings but merely
foreshadowed the possibility of further proceedings to obtain such relief in
the event that the appellants
were to succeed in having the Commissioner's
decision reviewed and the lease variation ultimately overturned.

  

   133. The appeal
and the applications made in these proceedings must be
dismissed.