Re Rev Fr Walter Ogle and Rev Fr John O'Neill v Janet Strickland, At All Material Times Chief Censor of the Censorship Board Constituted Pursuant To the Customs (Cinematograph Films) Regulations 1956 and Kenneth Bardon; David Haines; Graham Wood; D [1987] FCA 36 (13 February 1987)

FEDERAL COURT OF AUSTRALIA

Re: REV. FR. WALTER OGLE and REV. FR. JOHN O'NEILL
And: JANET STRICKLAND, at all material times Chief Censor of the CENSORSHIP
BOARD constituted pursuant to the CUSTOMS (CINEMATOGRAPH FILMS) REGULATIONS
1956 and KENNETH BARDON; DAVID HAINES; GRAHAM WOOD; DEBORAH EHRLICH; WILLIAM
SALTER; BRONWYN BOEKENSTEIN; WILLIAM HUME; ADRIAN CARNELUTTI; UNA JOANNA
DOWNER; ANDREE MARGARET WRIGHT; EVE MILDERN constituting with the First
Respondent the CENSORSHIP BOARD constituted pursuant to the CUSTOMS
(CINEMATOGRAPH FILMS) REGULATIONS 1956 and PAN AMERICAN PRODUCTIONS PTY
LIMITED
No. G264 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.
Lockhart J.
Wilcox J.

CATCHWORDS

Administrative Law - judicial review - persons aggrieved - foreign film approved by Censorship Board and registered by Chief Censor - film alleged to be blasphemous - standing of Ministers of Religion to challenge approval and registration - applicants possessing more than "intellectual or emotional" interest - locus standi considered.

Administrative Decisions (Judicial Review) Act 1977

HEARING

SYDNEY
13:2:1987

Counsel for the Applicant: Mr R P Meagher QC with Mr D L Warren

Solicitors for the Applicant: Forshaws

Counsel for the First and Second Respondents: Mrs P Fleming QC with Mr P Comans

Solicitors for the First and Second Respondents: Australian Government Solicitor

Appearance for Third Respondent: Mr G Penny (Solicitor)

Solicitors for Third Respondent: S D Ratner & Co

ORDER

The appeal be allowed.

The order of the primary judge of 4th April 1986 be rescinded, the motion of the first and second respondents seeking dismissal of the proceedings be dismissed, and the matter be referred back to the primary judge or a judge of this Court for the further hearing of the application.

The orders for costs by the primary judge be set aside and the first and second respondents pay the costs of the appellants of the motion and of this appeal.

No order as to costs of the third respondent.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

I have had the advantage of reading in draft form the reasons for judgment of Lockhart J. I agree with his conclusions the orders he proposes and generally with his reasons. I have also read with great interest the reasons for judgment of Wilcox J.

2. It was conceded before us that if the appellants in this matter had a "special interest" in the sense in which those words have been used by the High Court they qualified as persons "aggrieved" for the purpose of the Administrative Decisions (Judicial Review) Act 1977.

3. In arriving at my conclusion, namely that this appeal should be allowed, I adopt the approach of Stephen J. in Onus v Alcoa of Australia Limited [1981] HCA 50; (1982) 149 C.L.R. 27. At page 42 of that case Stephen J., when speaking of the question whether the appellants had a sufficient "special interest" to give them standing to sue said:

"As the law now stands it seems rather to involve in
each case a curial assessment of the importance of the
concern which a plaintiff has with particular subject
matter and of the closeness of that plaintiff's
relationship to that subject matter.
... Courts necessarily reflect community values and
beliefs, according greater weight to, and perceiving a
closer proximity to a plaintiff in the case of some
subject matters than others. The outcome of doing so,
however rationalized, will, when no tangible
proprietary or possessory rights are in question, tend
to be determinative of whether or not such a special
interest exists as will be (sic) found standing to
sue."

4. In these circumstances it is not surprising that minds may differ when determining whether a "special interest" has been established. The curial assessment which Stephen J. perceived as involved requires value judgments to be made, in particular when assessing matters of weight and proximity. This Court is required to make for itself such assessments and judgments, even in circumstances such as the present when, as I see it, the trial judge correctly identified the relevant principles of law. As Gibbs C.J. said in the Onus case at page 36;

"The rule is obviously a flexible one since, as was
pointed out in that case, (the Australian Conservation
Foundation case) the question what is a sufficient
interest will vary according to the nature of the
subject matter of the litigation."

5. The respondents agreed when before the trial judge that each of the appellants was a minister of religion charged with the duty of teaching and fostering Christian beliefs according to the scriptures. He said in this regard:

"Notwithstanding their special position as ministers of
religion, I do not think that they stand in any
different position from countless other members of the
community who, with varying degrees of commitment,
profess the Christian faith. That circumstance,
coupled with the absence of any threat to any
proprietary or possessory interest, persuades me that
there is no conclusion open other than that standing to
sue should be denied."

6. With respect to the contrary view of the trial judge I am of opinion that the appellants do stand in a different position from other members of the community who profess the Christian faith. I attach significance to the fact that as priests and teachers their interest and their activities are not limited merely to professing the Christian faith. Their interest in my opinion extends beyond that of other members of the Christian community whose limited concern could be fairly described as only "intellectual or emotional", which words were used by Gibbs C.J. at p.35 of the Onus case. The vocation and professional calling of the appellants being more than an intellectual or emotional concern requires greater weight to be given to their interest in the subject matter of the film and in the question whether it is blasphemous. They have, in the words of Stephen J., a "closer proximity" to this subject matter than other members of the community. This interest in my view should be recognized by the Courts.

7. I am confirmed in this opinion for the following further, although not necessarily relevant, reason. If these appellants have not sufficient standing to have reviewed the decision of the respondents the only persons who could have such standing, apart from the Attorney General would, be those with a commercial interest in the decision. Such an interest could prompt a challenge to the finding of blasphemy so as to facilitate or deny the screening of the film in this country. There are sound grounds that so to restrict standing would be unfortunate.

8. I agree with the orders proposed by Lockhart J.

The Reverend Father Walter Ogle is a priest of the Anglican Church in Australia and The Reverend Father John O'Neill is a priest of the Roman Catholic Church in Australia. They claim that a film titled "Je Vous Salue Maria" ("Hail Mary") is blasphemous and they seek to challenge decisions of the Censorship Board and of one of its members relating to the importation of the film into Australia. Underlying the making of the decisions is a finding by the Censorship Board that the film is not blasphemous.

2. The two priests ("the appellants") instituted these proceedings for review of the decisions claiming that they should be set aside by the Court on various grounds available under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). The learned trial Judge held that they had no standing to sue and dismissed the application. They appeal from that decision.

3. The appeal raises an important question concerning the standing of persons to bring proceedings in this Court under the Judicial Review Act. Sub-section 5(1) of that Act provides that "a person who is aggrieved" by a decision to which the Act applies may apply to this Court for a review of the decision. It is said against the appellants that each of them lacks standing to bring the case because they have no interest beyond that of ordinary members of the public. The appellants claim that, as they are ministers of religion, it is their vocation to teach and foster Christian beliefs and that it is part of their duties to reject or repel blasphemy which attacks the very foundation of their faith. They say that their special position as ministers of religion places them in a position different from that of other members of the community and entitles them to sue. That is the question for decision. It falls to be considered in the background of administrative law where the expression "person aggrieved" and other like expressions are used in statutes to define a person's standing to sue. Some analysis of the development of the law in this area is called for.

4. In cases involving the determination of private rights questions of standing rarely arise. It is in civil cases with a public element that a person's standing to sue arises. Proceedings for review of decisions of inferior courts and public officials are proceedings which involve the public interest. They include proceedings for the issue of the prerogative writs of prohibition, certiorari and mandamus (to mention the principal ones) and applications under the Judicial Review Act for the review of decisions of an administrative character made under Commonwealth enactments.

5. The standing of persons to bring public interest proceedings is defined by various formulae in different statutes. It is useful to examine some of them. Expressions commonly used in statutes to determine standing to sue are "person aggrieved", "person interested" and "person with affected interest". The particular expression with which this case is concerned is a "person who is aggrieved". It has long been recognised that these formulae for determining standing to sue should not be given a rigid or inflexible meaning. They are flexible words which derive their meaning and take their colour from the context in which they appear and the nature of the particular statute concerned. As Lord Hewart C.J. said in Seven Oaks Urban Council v. Twynam (1929) 2 KB 440 at pp 443 and 444:

"But as has been said again and again there is
often little utility in seeking to interpret
particular expressions in one statute by reference
to decisions given upon similar expressions in
different statutes which have been enacted alio
intuitu. The problem with which we are concerned
is not, what is the meaning of the expression
'aggrieved' in any one of a dozen other statutes,
but what is its meaning in this part of this
statute? It is a little important to see what this
part of this statute is dealing with."

6. One must therefore approach an examination of the meaning of an expression such as "person aggrieved" with those observations of Lord Hewart C.J. in mind. An examination of the authorities also shows that, as administrative law has evolved, the Courts have shown a discernible, though not always consistent, tendency to construe these expressions liberally. The words "person aggrieved" received a restrictive interpretation over a century ago in Ex parte Sidebotham (1880) 14 ChD 458 where James L.J. said at p 465, in relation to s. 71 of the Bankruptcy Act 1869 (Eng.) which empowered courts to make orders in relation to a "person aggrieved":

"But the words 'person aggrieved' do not really
mean a man who is disappointed of a benefit which
he might have received if some other order had been
made. A 'person aggrieved' must be a man who has
suffered a legal grievance, a man against whom a
decision has been pronounced which has wrongfully
deprived him of something, or wrongfully refused
him something, or wrongfully affected his title to
something."

7. This interpretation was generally accepted for many years, though Lord Esher said, as early as 1887, in Ex Parte Official Receiver In Re Reed, Bowen & Co. (1887) 19 QBD 174 at p 178 that the definition of James L.J. was not an exhaustive definition.

8. A wider interpretation was placed upon the words "any person aggrieved" by the Privy Council in Attorney-General of the Gambia v. Pierre Sarr N'Jie (1961) AC 617 where a question arose as to the meaning of that expression in the context of the West African (Appeal to Privy Council) Order In Council 1949, s. 31 of which provided:

"Nothing in this Order contained shall be deemed to
interfere with the right of His Majesty upon the
humble petition of any person aggrieved by any
judgment of the Court to admit his appeal therefrom
upon such conditions as His Majesty in Council
shall think fit to impose."

9. Their Lordships rejected the submission that a person aggrieved must be a person who has suffered a legal grievance in the sense attributed to it by James L.J. in Ex parte Sidebotham (supra). Lord Denning, who delivered the judgment of the Judicial Committee, said at p 634 (a passage which has been cited with approval and applied in many subsequent cases):

"But the definition of James L.J. is not to be
regarded as exhaustive. Lord Esher M.R. pointed
that out in Ex parte Official Receiver, In re Reed,
Bowen & Co. (1887) 19 QBD 174, 178. The words
'person aggrieved' are of wide import and should
not be subjected to a restrictive interpretation.
They do not include, of course, a mere busybody who
is interfering in things which do not concern him:
but they do include a person who has a genuine
grievance because an order has been made which
prejudicially affects his interests."

10. Another expression "person who feels aggrieved" also appears in statutes, but my research shows that it tends to be treated interchangeably with "person aggrieved": see for example National Trust of Australia (Vic) v. T. & G. Mutual Society (1976) VR 592 and Dalton v. Deputy Commissioner of Taxation 60 ALR 783 at p 797.

11. The expression "person interested" also appears in various statutory contexts: see the Designs Act 1906 s. 28; Lands Acquisition Act 1955: ss. 13 and 39; Conciliation and Arbitration Act 1904: ss. 62, 108 and 143; Bankruptcy Act 1966: ss. 35, 75, 167, 108, 300, 303 and 307 and The Environment Protection (Sea) Dumping Act 1981: s. 33.

12. The words "person with affected interest" are used in some statutes as the test for determining standing to apply for applications for injunctions to restrain breaches of certain provisions of the Companies Act 1981 (Cth) (s. 574) and the Securities Industry Act 1980 (Cth) (ss. 42 and 149). Also, a person has a right of appeal under the Administrative Appeals Tribunal Act 1975 to the Administrative Appeals Tribunal for the administrative review of a decision if his "interests are affected" by the decision: Administrative Appeals Tribunal Act 1975 s. 27.

13. It is important not to shackle the interpretation of these expressions by importing concepts from other statutes in which they appear involving different subject matter and objects, especially when the expressions have received judicial interpretation not intended to have general application or, indeed, application beyond the particular words in the particular context of the particular statute concerned.

14. Before turning to the Judicial Review Act itself I shall discuss two decisions of the High Court upon which considerable reliance was placed by the parties in argument before us. The first of these is Australian Conservation Foundation Incorporated v. The Commonwealth of Australia [1979] HCA 1; (1980) 146 CLR 493 where the Australian Conservation Foundation challenged the validity of certain decisions relating to the Banking Foreign Exchange Regulations and to certain administrative procedures under the Environment Protection (Impact of Proposals) Act 1974 (Cth) in the context of a proposal by a company to establish and operate a tourist resort in central Queensland. Aickin J., who heard the case at first instance, held at p. 508 that the Foundation had no standing to sue because it was not "adversely affected in some way to an extent greater than the public generally". On appeal to the Full Bench of the High Court, Gibbs J. said at pp. 530-531:

"I would not deny that a person might have a
special interest in the preservation of a
particular environment. However, an interest, for
present purposes, does not mean a mere intellectual
or emotional concern. A person is not interested
within the meaning of the rule, unless he is likely
to gain some advantage, other than the satisfaction
of righting a wrong, upholding a principle or
winning a contest, if his action succeeds or to
suffer some disadvantage, other than a sense of
grievance or a debt for costs, if his action fails.
A belief, however strongly felt, that the law
generally, or a particular law, should be observed,
or that conduct of a particular kind should be
prevented, does not suffice to give its possessor
locus standi. If that were not so, the rule
requiring special interest would be meaningless.
Any plaintiff who felt strongly enough to bring an
action could maintain it."

15. His Honour held that the Foundation had no special interest in the preservation of the relevant environment in central Queensland and none in the exchange control transactions. Stephen J. reached the same conclusion as Gibbs J. for substantially the same reasons. His Honour said at p. 539:

"An individual does not suffer such damage as gives
rise to standing to sue merely because he voices a
particular concern and regards the actions of
another as injurious to the object of that concern.
That it is a body corporate rather than an
individual which seeks to do so cannot of itself
alter that position; the fact that that body
corporate has as its main object the voicing, and
encouragement in the community, of just such a
concern no doubt ensures that what it does to give
effect to such an object will not be ultra vires;
it will not otherwise improve its position."

His Honour regarded the Foundation as in substance basing its right to sue on a concern regarding threatened detriment to the environment and this was not sufficient to give it standing.

16. Mason J. took a similar view to Gibbs J. and said at p. 548:

"In this difficult field there is one proposition
which may be stated with certainty. It is that a
mere belief or concern, however genuine, does not
in itself constitute a sufficient locus standi in
a case of the kind now under consideration."

17. Murphy J. dissented and held that the Foundation had standing to bring the proceedings.

18. The later decision of the High Court is Onus v. Alcoa of Australia Limited [1981] HCA 50; (1982) 149 CLR 27. Section 21 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) provided that a person who wilfully or negligently defaced or damaged or otherwise interfered with a relic or carried out an act likely to endanger a relic should be guilty of an offence. Section 2 defined the terms "archaeological relic" and "relic" to include a relic pertaining to the past occupation by the Aboriginal people of any part of Australia whether or not the relic existed prior to the occupation of that part of Australia by people of European descent and specifically included any Aboriginal deposit, carving, drawings, skeletal remains and anything belonging to the total body of material relating to that past Aboriginal occupation of Australia. Two persons who claimed to be descendants and members of the Gournditch-jmara Aboriginal people and custodians of the relics of those people according to their laws and customs brought proceedings in the Supreme Court of Victoria for the purpose of preventing Alcoa of Australia Limited from carrying out on land which it occupied works which, it was claimed, would interfere with Aboriginal relics on that land and in particular would be a breach of s. 21 of the Archaeological and Aboriginal Relics Preservation Act 1972. The Supreme Court of Victoria held that the two persons had no standing to sue. On appeal to the High Court Gibbs C.J. said that, although the two private citizens who brought the action could not show that any right of their own had been infringed, nevertheless they had an interest in the subject matter of the action greater than that of other members of the public and greater than that of other persons of Aboriginal descent who are not members of the Gournditch-jmara people. The appellants and other members of the Gournditch-jmara people would be more particularly affected than other members of the Australian community by the destruction of the relics. The appellants claimed that, in common with other members of the Gournditch-jmara people, they were the custodians of the relics according to the laws and customs of those people, that the relics were of cultural and spiritual importance to them and that they used the relics to teach their children the culture of their people. His Honour said that the case was not one in which a plaintiff sues in an attempt to give effect to his beliefs or opinions on a matter which does not affect him personally except insofar as he holds beliefs or opinions about it. Stephen J. reached the same conclusion and the essence of his Honour's reasoning is to be found at p. 42 where he said:

"As the law now stands it seems rather to involve
in each case a curial assessment of the importance
of the concern which a plaintiff has with
particular subject matter and of the closeness of
that plaintiff's relationship to that subject
matter. The present appellants are members of a
small community of aboriginal people very long
associated with the Portland area; the endangered
relics are relics of their ancestors' occupation of
that area and possess for their community great
cultural and spiritual significance. While
Europeans may have cultural difficulty in fully
comprehending that significance, the importance of
the relics to the appellants and their intimate
relationship to the relics readily finds curial
acceptance. It is to be distinguished, I think,
and will be perceived by courts as different in
degree, both in terms of weight and, in particular,
in terms of proximity, from that concern which a
body of conservationists, however sincere, feels
for the environment and its protection. Courts
necessarily reflect community values and beliefs,
according greater weight to, and perceiving a
closer proximity to a plaintiff in the case of,
some subject matters than others. The outcome of
doing so, however rationalised, will, when no
tangible proprietary or possessory rights are in
question, tend to be determinative of whether or
not such a special interest exists as will be found
standing to sue."

Mason J. said at p. 43 that the relics had great cultural and spiritual significance for the Gournditch-jmara community, the members of which are the guardians of the relics according to their laws and customs, and they use the relics. His Honour agreed with Gibbs C.J. that the appellants had a special interest in the preservation of the relics sufficient to support locus standi. Murphy, Aickin, Wilson and Brennan JJ. reached the same conclusion in separate reasons for judgment. Brennan J. said at p. 74:

"A plaintiff must show that he has been specially
affected, that is, in comparison with the public at
large he has been affected to a substantially
greater degree or in a significantly different
manner. It is not necessary to show that the
plaintiff is uniquely affected; there may be some
others whose interests may be affected in like
manner."

19. It was argued before us on behalf of the appellants that, just as the relics in the Onus Case (supra) had great cultural and spiritual significance to the Gournditch-jmara people, so here the repelling of blasphemy to maintain the sanctity of the Christian faith has great spiritual significance to the appellants as ministers of religion.

20. The Judicial Review Act is an important part of Commonwealth legislation in the field of administrative law to scrutinise administrative decisions and actions of Commonwealth Ministers, officials and statutory bodies. It confers jurisdiction on this Court to hear and determine applications by "a person who is aggrieved by a decision to which this Act applies", i.e. decisions of an administrative character made under Commonwealth enactments. Sub-section 3(4) defines the expression by an inclusive definition which reads as follows:-

"In this Act -

(a) a reference to a person aggrieved by a decision
includes a reference -

(i) to a person whose interests are adversely
affected by the decision; or

(ii) in the case of a decision by way of the
making of a report or recommendation - to
a person whose interests would be
adversely affected if a decision were, or
were not, made in accordance with the
report or recommendation; and

(b) a reference to a person aggrieved by conduct
that has been, is being, or is proposed to be,
engaged in for the purpose of making a decision
or by a failure to make a decision includes a
reference to a person whose interests are or
would be adversely affected by the conduct or
failure."

21. The meaning of the expression "a person who is aggrieved" was considered by Ellicott J. in Tooheys Limited v. Minister for Business and Consumer Affairs (1981) 36 ALR 64. His Honour said at p 79:

"The words 'a person who is aggrieved' should not,
in my view, be given a narrow construction. They
should not, therefore, be confined to persons who
can establish that they have a legal interest at
stake in the making of the decision. It is
unnecessary and undesirable to discuss the full
import of the phrase. I am satisfied from the
broad nature of the discretions which are subject
to review and from the fact that the procedures
are clearly intended in part to be a substitution
for the more complex prerogative writ procedures
that a narrow meaning was not intended. This does
not mean that any member of the public can seek an
order of review. I am satisfied, however, that it
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. In many cases that
grievance will be shown because the decision
directly affects his or her existing or future
legal rights. In some cases, however, the affect
may be less direct. It may affect him or her in
the conduct of a business or may, as I think is the
case here, affect his or her rights against third
parties (see F. Robinson v. Western Australian
Museum [1977] HCA 46; (1977) 16 ALR 623; 138 CLR 283)."

22. This approach of Ellicott J. has been adopted in subsequent decisions of Full Courts of this Court: see Ricegrowers Co-Operative Mills Limited v. Bannerman (1981) 38 ALR 533 at pp 539, 540; Lamb v. Moss (1983) 49 ALR 533 at p 554.

23. The importance of not giving the expression "a person who is aggrieved" a narrow meaning is readily perceived when regard is had to the wide range of decisions under Commonwealth enactments which are susceptible to review under the Judicial Review Act and to the continually expanding field of Commonwealth law. As statutes, regulations, ordinances and other laws of the Commonwealth are continually emerging from the draftsman's pen, the definition of the words "a person who is aggrieved" must be as applicable for future, as it is for current, enactments.

24. There are sound reasons why the expression should not be extended to include a member of the public who does not have a grievance which he or she will suffer beyond that which he or she has as an ordinary member of the public. Otherwise, anyone at all could apply for review of a decision under a Commonwealth enactment and for a statement under s. 13 of the Judicial Review Act of the findings on material questions of fact and the reasons for the decision in question even though the decision may not affect the person beyond being merely emotionally or intellectually concerned or interested in the decision. The right to request a s. 13 statement is conferred by that section upon "any person who is aggrieved by the decision" (sub-s. 13(1) and sub-s. 3(4)). Burdens on Government departments and instrumentalities would be imposed at increased cost to the public purse if an applicant for a statement of reasons under s. 13 did not have some interest in the decision in the sense to which Ellicott J. referred in Tooheys' Case (supra), especially as the person who made the decision is obliged to provide the statement to any person entitled to it without cost to the person seeking it.

25. I do not say that, if anybody at all has standing to bring applications under the Judicial Review Act, the "floodgates" will open and the Court will be swamped with cases. This argument has been advanced on numerous occasions and rejected: see, for example, Dyson v. Attorney-General (1911) 1 KB 410 per Farwell L.J. at 423; The Colonial Sugar Refining Co. Limited v. The Attorney-General for the Commonwealth [1912] HCA 94; (1912) 15 CLR 182, per Griffith C.J. at pp 189-191 and Barton J. at pp 202-4; and Phelps v. Western Mining Corporation Limited (1978) 33 FLR 327 per Deane J. at pp 333-334. It is an argument without substance and reality. There are real constraints which would discourage people from instituting proceedings whose only interest is strong views or feelings. The burden of costs, including the risk of orders for costs being made against them if they lose, and the power of courts to control their own proceedings, including power to dismiss proceedings or strike out pleadings if they are vexatious, frivolous or an abuse of process are examples of some constraints.

26. If the Judicial Review Act had provided that "any person" had standing to seek review of administrative decisions under Commonwealth enactments it may be that any member of the public could apply. Parliament conferred the right to seek an injunction under s. 80 of the Trade Practices Act 1974 on the Attorney-General, the Trade Practices Commission and "any other person". It is now settled that those words confer the right to sue on any member of the public, whether a consumer or not: World Series Cricket Pty. Limited v. Parish (1977) 16 ALR 181; Phelps v. Western Mining Corporation Limited (supra); Glorie v. W.A. Chip & Pulp Co. Pty. Limited (1981) 1 TPR 84. Parliament has used words of limitation, however, in sub-s. 5(1) of the Judicial Review Act; the words "a person who is aggrieved" do not mean the same as "any person".

27. This case is concerned with three decisions which were made by members of the Censorship Board ("the respondents"); constituted pursuant to the Customs (Cinematograph Films) Regulations. The regulations were made under the Customs Act 1901. The three decisions were to grant a licence to import the film, to approve its registration and to register it pursuant to the regulations. Until a film has been registered in accordance with Part II of the regulations it shall not be delivered from the control of Customs. The Censorship Board is constituted by regulation 5 and it consists of the Chief Censor, the Deputy Chief Censor and other members (reg. 5(2)). Part II relates to the importation of films and advertising matter. The importation of a film is prohibited unless a licence to import it has been granted under the regulations by the Chief Censor or an officer on his or her behalf (reg. 9(1)). The grant of a licence under the regulations is subject to the conditions and requirements specified in the regulations and to such conditions and requirements as are specified in the licence (reg. 10). A film shall not be delivered from the control of Customs until it has been registered in accordance with Part II (reg. 11). Regulation 13, so far as is presently relevant, provides that a film shall not be registered if, in the opinion of the Board, the film is blasphemous, indecent or obscene.

28. The registration of a film may be granted either without conditions or subject to such conditions as the Censorship Board thinks fit and subject to the importer giving security to the satisfaction of the Collector of Customs for the observance of the conditions subject to which the registration has been granted and certain other conditions specified in regulation 19(b). Among those lastmentioned conditions is a condition that the film shall not, unless the consent in writing of the Censorship Board has first been obtained, be exhibited in Australia by the importer or any other person in a form other than the form in which the film has been registered (reg. 19(b)(i)).

29. Part IV of the regulations provides for the review of decisions of the Censorship Board by a body called the Cinematograph Films Board of Review. "A person aggrieved" by a decision of the Censorship Board on a matter arising under the regulations may apply to the Board of Review to review the decision of the Censorship Board (reg. 39(1)). On the hearing of the application for review the Board of Review may confirm the decision of the Censorship Board or direct it to grant the permission sought by the applicant either with or without conditions (reg. 39B).

30. Father Ogle and Father O'Neill allege that the film is blasphemous and that the respondents have, by the decisions referred to, allowed the third respondent, Pan American Productions Pty. Limited (the importer of the film), to import it. They claim that the decisions of the Censorship Board should be set aside by the Court on various grounds including the grounds that the decisions were not authorised by the regulations, that relevant considerations were left out of consideration by the Board and that no person acting reasonably could have reached the decision reached by the Board if its members had properly directed themselves as to the applicable law.

31. The respondents filed a notice of motion to dismiss the proceedings on the ground that the appellants lack standing in that neither of them is "a person who is aggrieved" by the decisions within the meaning of sub-s. 5(1) of the Judicial Review Act. The learned primary Judge determined the question of standing as a preliminary point rather than at the final hearing and held that the appellants did not have standing to pursue the application.

32. It was agreed by counsel for the respondents before his Honour, for the purpose only of dealing with the notice of motion, that:

1. each of the appellants is a minister of religion charged with

the duty of teaching and fostering Christian beliefs
according to the Scriptures;

2. the film is blasphemous; and

3. the respondents have by their decisions allowed and permitted

the third respondent to import the film into Australia and to
show it in theatres to persons other than minors.

33. The primary Judge concluded that the appellants did not have standing to pursue the application. His Honour said:

"Notwithstanding their special position as
ministers of religion, I do not think that they
stand in any different position from countless
other members of the community who, with varying
degrees of commitment, profess the Christian faith.
That circumstance, coupled with the absence of any
threat to any proprietary or possessory interest,
persuades me that there is no conclusion open other
than that standing to sue should be denied. ...
Many people in the community have a concern about
the screening of a blasphemous film. But that
concern, in whatever depth and however genuinely
and sincerely it may be felt, does not permit such
a person to resort to the Court."

34. Blasphemy is an indictable misdemeanour at common law: R v. Ramsay 15 Cox, C.C. 231. See also the Blasphemy Act 9 and 10 Wm. III Ch 32. The essence of the crime of blasphemy is to publish words concerning the Christian religion which are so scurrilous and offensive as to pass the limits of decent controversy and to be calculated to outrage the feelings of any sympathiser with or believer in Christianity: R. v. Gott (1922) 16 CrAppR 87. A temperate and respectful denial of the existence of God is not an offence against the law which does not render criminal the mere propagation of doctrines hostile to the Christian faith. The crime consists in the manner in which the doctrines are advocated. Whether in each case this is a crime is a question of fact for the jury: Bowman v. Secular Society Limited (1917) AC 406. See also R. v. Ramsay (1883) 15 Cox C.C. 231.

35. In Stephen's Digest of the Criminal Law 9th Edn. 1950 at p. 163 there is the following passage:

"Every publication is said to be blasphemous which
contains any contemptuous, reviling, scurrilous or
ludicrous matter relating to God, Jesus Christ, or
the Bible or the formularies of the Church of
England as by law established. It is not
blasphemous to speak or publish opinions hostile to
the Christian religion, or to deny the existence of
God, if the publication is couched in decent and
temperate language. The test to be applied is as
to the manner in which the doctrines are advocated
and not as to the substance of the doctrines
themselves.

Everyone who publishes any blasphemous document is
guilty of ... publishing blasphemous libels."

36. This statement of the law was approved by Lord Scarman in R. v. Lemon (1979) AC 617 at p 665.

37. It has been held not to be blasphemous to vilify any non-Christian or the Jewish religion: R. v. Gathercole (1838) 2 Lewin 237. It is an interesting question whether the offence of blasphemous conduct would extend to the Jewish religion or religions other than Christianity if the point were tested today in Australia.

38. For further discussion on the offence of blasphemy see 1 Hawkins, Pleas of the Crown C.5; Tomlin's Law Dictionary, 4th Edn. 1835; The Law Dictionary, 1815; Wharton's Law Lexicon, 14th Edn. 1938; Watson and Purnell Criminal Law in New South Wales 1971 pp. 511, 629 to 631; Bourke's Criminal Law Victoria 3rd Edn. 1981 pp. 1394, 1395, 1396; and Halsbury's Laws of England 4th Edn. Vol. 11 para. 1009.

39. The appellants are in holy orders in hierarchical Christian churches. As ministers of religion they are in a special position compared with ordinary members of the public in that it is their duty and vocation to maintain the sanctity of the Scriptures, to spread the Gospel, to teach and foster Christian beliefs and to repel or oppose blasphemy. Blasphemy is the denial of the basis tenets of the Christian faith. The doctrines and teachings of the Christian faith are of "great cultural and spiritual significance" to the appellants (to adopt the language of Stephen J. in the Onus Case (supra)) and certainly are of no less significance to Christians than were the Aboriginal relics to the Gournditch-jmara community in the Onus Case (supra). The appellants are not meddlers or "busy bodies". Nor are they people who have mere intellectual or emotional concern about the film. Their position is therefore different from the position which the High Court perceived the Australian Conservation Foundation to have in the Australian Conservation Foundation Case (supra). See also the judgment of Gibbs C.J. in Davis v. The Commonwealth of Australia, 13 November 1986 (unreported). The decisions impugned in this case have a greater effect upon the appellants than they have upon ordinary members of the public. It is true that the appellants have no special interests in the subject matter of the decision in the sense of legal or equitable rights or proprietary or pecuniary interests; but they are persons aggrieved because to repel blasphemy is a necessary incident of their vocation. To deny them standing would deny an important class in the community an effective means and procedure for challenging decisions of the kind involved in this case.

40. Whether members of the community who profess the Christian faith, but are not ministers of religion or otherwise part of the hierarchy of a Christian denomination, would have standing to bring a case of this kind is for me an open question which I do not find it necessary to decide. It must be kept in mind, however, that some Christian sects have little or no hierarchical structure, yet their followers are devout believers in their religious teachings. To deny them standing is a conclusion which would not be lightly reached, but I prefer to express no view on the question as it does not arise and was only briefly touched on in argument.

41. It is useful to consider who, if anybody, would have standing to challenge decisions of the kind in question here under the Judicial Review Act if the respondents are correct in their assertion that the appellants are merely ordinary members of the community; having no grievance which will be suffered as a result of the decisions complained of beyond that which they have as ordinary members of the public. Counsel for the respondents could refer to no such people.

42. There are many denominations within the Christian church and there is considerable variation between them with respect to hierarchical structure, division between spiritual and temporal arms and between clergy and laity. The organisation of some churches may permit clearly defined bodies to speak with authority for them on matters of religious teaching and dogma. The capacity of bodies within other churches to authoritatively state the tenets of those churches may not be so clear or may not exist at all as it is well known that some churches or sects have little or no hierarchy and no organisation to speak with authority for them.

43. It may, therefore, be possible to point to a body within a particular church of whom it could be said that it truly represents that church in the formulation and expression of doctrinal matters and hence be more readily perceived as having standing under the Judicial Review Act. But the absence of any such body in other churches or sects, the members of which are devout Christians, cannot be called in aid to deny the right of those members to apply for a review. The precise identification of the person or persons who would have standing in those circumstances may arise in some future case, but I need not decide it here. Nor does it follow that the existence of a body within a church to authoritatively determine matters of dogma would have the effect of denying its priests, ministers or pastors standing to sue in this Court if they are not members of the authoritative body.

44. The evidence does not touch the question whether there are within the Anglican and Roman Catholic churches in Australia bodies or persons who can speak with the authority of the church on questions of blasphemy. Hence, it is not suggested in this case that the appellants should be denied standing because there is some higher authority within the churches concerned to whom is entrusted the task of determining doctrinal questions.

45. There is much force in the view that, if people such as the appellants who are priests of the church cannot complain, there would be no effective avenue for challenging, under the Judicial Review Act, decisions by the Censorship Board involving a finding that a film is not blasphemous. The consequence of a finding by the Censorship Board that a film is blasphemous is that it is unlawful for the film to be registered. Yet the Board's finding that the film is not blasphemous may, in particular circumstances, be contrary to law or otherwise liable to be aside under the Judicial Review Act. It would be curious if nobody, with the possible exception of the Attorney-General, had standing to challenge the finding before the Court. If, on the other hand, the Censorship Board had determined that the film was blasphemous then plainly there would be at least one person who would answer the description of a "person aggrieved", namely, the third respondent (the importer of the film) because it would have a proprietary or pecuniary interest. Others may have interests of this kind also, for example, the owner of the copyright in the film. It would be strange, indeed, if the decision of the Censorship Board that a film is blasphemous could be challenged under the Judicial Review Act, but a decision that it is not blasphemous could not. It is no answer to say that the regulations themselves provide for the review of decisions of the Censorship Board, although the existence of another avenue of appeal or challenge may be a relevant consideration for the Court in the exercise of its discretion once it is satisfied that a ground for review of the decision has been established.

46. One final matter requires attention. Decisions of the kind under review in this case have the effect of allowing a film to be imported, registered in accordance with the regulations and delivered from the control of Customs. It does not follow that the film will be shown in cinemas or otherwise used commercially. Those interested in its commercial exploitation may, for example, decide not to screen the film in Australia because circumstances have changed since the making of arrangements to import it and it would not be profitable to do so. It seems that in the present case the film was delivered into the custody of the third respondent and subsequently screened in cinemas.

47. Are the appellants "aggrieved" by the decisons under challenge here or is their complaint in essence that the film should not be shown or should not have been shown to the public? Is there a sufficient nexus between the decisions under review and the screening of the film in Australia? It is an offence to publish blasphemous libel. This is a common law offence and is regulated by statute: see for example Crimes Act 1900 (N.S.W.) s. 574 and Crimes Act 1958 (Vic.) s. 469AA. Also, injunctions may be granted to restrain the publication of a blasphemous libel by the screening of a film. Whether such proceedings could be brought only by the Attorney-General or by others is not a question which I need to consider. I am satisfied that there is sufficient nexus between the decisions in question here and the subject matter of the complaint of the appellants to enable them to challenge the decisions under the Judicial Review Act. Registration of the film under the regulations and delivery of the film from the control of Customs enables the film to be exhibited in Australia: see regs. 9, 10, 11 and 19. Further, for the purposes of these proceedings it was agreed before the primary Judge and before us on appeal that:

"The first and second respondents have by the
decisions referred to allowed and permitted the
third respondent to import the film into Australia
and to show it in theatres to persons other than
minors."

48. I would allow the appeal; rescind the order of the primary Judge dismissing the application; dismiss the motion of the first and second respondents seeking dismissal of the proceeding; refer the matter back to the primary Judge or other Judge of this Court for the further hearing of the application; set aside the orders for costs made by the primary Judge; and order the first and second respondents to pay the costs of the appellants of the motion and of this appeal. No order for costs in favour of or against the third respondent is called for because it is a submitting respondent.

Lockhart J has set out the facts behind this appeal and has discussed the principal authorities relevant to its determination. I agree that the appellants have standing to bring their application for review of the decisions of the respondent Board members concerning the film "Je vous salue Marie".

2. Reference was made, during the argument on behalf of the respondents, to the rules which have been developed by the courts to govern the question whether a particular plaintiff or plaintiffs should be accorded standing to seek injunctive or declaratory relief in a matter involving a general public interest, such as the enforcement of a statute. These rules are not directly relevant to the question raised by the present appeal: the proper scope of the words "person who is aggrieved" as used in ss.5, 6 and 7 of the Administrative Decisions (Judicial Review) Act 1977. However, as Lockhart J has pointed out, this formula -- which is used as the criterion of standing in many statutes -- is not of fixed content. The application of the formula has responded not only to varying situations at a given time but also to developing judicial attitudes as to the availability of the courts for the resolution of legal issues causing concern in the community. It seems to me desirable, in the application of this formula to cases brought under the Administrative Decisions (Judicial Review ) Act, that this Court does not lag behind any expansion of attitude which is occuring in respect of injunctive relief. Were the Court to do so, plaintiffs would not be barred from proceeding -- for example, under s.39B of the Judiciary Act 1903 -- but both the parties and the Court would be deprived of the advantages provided by the Administrative Decisions (Judicial Review) Act. These advantages are not merely procedural; they include the considerable flexibility of action conferred upon the Court by ss.10, 15 and 16.

3. The most recent decision of a Full Bench of the High Court of Australia in relation to the standing necessary to obtain an injunction compelling observance of a statute is Onus v Alcoa of Australia Limited [1981] HCA 50; (1981) 149 CLR 27. In that case the Court unanimously held that the plaintiffs were entitled to maintain the proceedings notwithstanding that the conduct of the defendant did not impinge upon their legal rights or property interests. They were members of an Aboriginal group, the Gournditch-jmara people, to whom the relics on the defendant's land were of cultural and spiritual importance. The decision is one of major importance. In contemporary Australia, with its multitude of cultures and religions, it is likely that groups of people, concerned about a public issue, will not infrequently be able to demonstrate that the issue has, for them, special significance of a cultural or spiritual nature. "Cultural" and "spiritual" are words of wide application.

4. The liberalisation of standing rules evident in Onus is consistent with attitudes expressed in other common law countries. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; (1982) AC 617 at p.641 Lord Diplock spoke out against a reversion "to technical restrictions on locus standi" which would "reverse that progress towards a comprehensive system of administrative law that I regard as having been the greatest achievement of the English courts in my judicial lifetime".

5. Lord Diplock's words were quoted and applied by the Court of Appeal in New Zealand in Environmental Defence Society Inc v South Pacific Aluminium Ltd (No 3) (1981) 1 NZLR 216 at p.220-221, the Court adding:

"... the proceedings challenge the legality of
Government action. It is unrealistic to
expect the Attorney-General to do this and we
see no reason why it must be left to
individuals directly affected to undertake the
burden. In the exercise of the Court's
discretion, responsible public interest groups
may be accepted as having sufficient standing
under the National Development Act."

6. In constitutional cases the Supreme Court of Canada has gone one step further, discarding altogether the requirement of special damage or special interest. The philosophy underlying that decision was expressed by Laskin J, speaking for the majority of the Court, in Thorson v Attorney General (Canada) (No 2) 43 DLR (3d) 1 at p.18: "where all members of the public are affected alike ... and there is a justiciable issue respecting the validity of legislation, the Court must be able to say that as between allowing a taxpayer's action and denying any standing at all when the Attorney-General refuses to act, it may choose to hear the case upon the merits". See also Nova Scotia Board of Censors v McNeil (1975) 55 DLR (3d) 632 and Minister of Justice of Canada v Borowski (1981) 130 DLR (3d) 588.

7. There is no decided case which prevents this Court adopting, in the application of the formula "person who is aggrieved", the attitudes to which I have referred. On the contrary, the modern authorities on the statutory use of this formula -- like the authorities on its use in relation to prerogative writs: as to which see Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (Gummow J, 17 December 1986 not reported) -- emphasise its width and flexibility. Lockhart J has quoted a passage from the judgment of the Judicial Committee of the Privy Council in Attorney-General of the Gambia v N'Jie (1961) AC 617, a passage which was adopted by Gibbs CJ in Koowarta v Bjelke-Petersen (1982) 153 CLR 169 at p.185 for the purpose of construing the words "person aggrieved" in the Racial Discrimination Act 1975. I add a reference to Arsenal Football Club v Ende (1979) AC 1, a case in which a person in the position of a ratepayer was held entitled -- as a "person ... who is aggrieved" -- to object that the valuation for rating purposes placed upon the property of the club was inadequate. The decision did not depend upon Mr Ende's own rate liability; it was impossible for him to demonstrate that the amount of his assessment would be affected in any way. The members of the House of Lords rested their decision upon his concern about rating inequities. The ground of decision was articulated by Lord Wilberforce at p.17 in these words:

"On principle, and on the history of this
matter, there is no reason, in the absence of
express limiting words, for confining
grievances to demonstrable injurious effects.
Uniformity and fairness have always been
proclaimed, and judicially approved, as
standards by which to judge the validity of
rates. Indeed I believe that many men feel a
more acute sense of grievance if they think
they are being treated unfairly in relation to
their fellow ratepayers than they do about the
actual payments they have to make. To produce
a sense of justice is an important objective
of taxation policy."

See also per Lord Morris of Borth-y-Gest at pp.22, 24 and per Lord Fraser of Tullybelton at p.33

8. In at least two Australian cases non-financial concern has been recognized as being sufficient to cause a person to be "aggrieved": see National Trust of Australia (Vic) v Australian Temperance & General Life Assurance Society Ltd (1976) VR 592, Australian Conservation Foundation v Shell Refining (Aust) Pty Limited (1983) VR 385. There need be no concern that such recognition will lead to an unmanageable proliferation of cases. In this area of the law the "floodgates" argument has been thoroughly discredited: see the Report of the Law Reform Commission, "Standing in Public Interest Litigation", ALRC 27 paras.188-196. As Professor Kenneth Scott wryly noted in his article "Standing in the Supreme Court: A Functional Analysis" (1973) 86 Harvard Law Review 645 at p.674: "The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a specter which haunts the legal literature, not the courtroom". Litigation -- in the public interest and for no personal advantage, especially against a wealthy opponent and under a costs regime requiring the losing party to pay the costs incurred by the victor -- has some similarity to marriage as described in the Book of Common Prayer: it is "not by any to be enterprized, nor taken in hand, inadvisedly, lightly, or wantonly".

9. Lockhart J has pointed out that s.13 of the Administrative Decisions (Judicial Review) Act, which deals with the obligation for a decision-maker to give reasons, adopts the notion of "person who is aggrieved". Section 13 enables "any person who is entitled to make an application to the Court under section 5 in relation to the decision" to seek reasons. His Honour refers to the possible burden on government of too broad an entitlement to reasons. This concern was also voiced by the Law Reform Commission which recommended, in para.269 of its report, that, notwithstanding its proposed liberalisation of the standing criterion used in s.5, the formula "person aggrieved" should continue to be used for s.13 purposes.

10. The recommendation of the Law Reform Commission was only a provisional one, in the sense that the Commission suggested that it would be appropriate at a future date to consider the application to s.13 of any new criterion adopted for s.5. I agree that the situation ought to be monitored. If it should happen that an expanded reading of "person who is aggrieved" causes a significant increase in the number of applications for reasons under s.13, there may be a case for amendment of the section so as to ease any unreasonable burden. But it seems to me that this is highly unlikely. People without a material interest in a decision are unlikely to put themselves to the trouble of making a request for reasons unless they are, at least, giving serious thought to embarking upon legal proceedings. In practice, this means unless they are prepared to go to the trouble and expense of obtaining legal advice; without which most would be unaware of the terms of s.13. I suspect that time will prove the ground to remain as dry under the floodgate marked s.13 as under that marked s.5.

11. The more substantial worry about a liberalised interpretation of the standing criterion used in s.5, from the policy viewpoint, is whether the abandonment of a requirement that the plaintiff have at risk a legal right or some material interest will lead to an inadequate presentation of the issues to the court. The courts are entitled to insist upon a plaintiff who will adequately represent the case sought to be made, in the public interest; a plaintiff who, in the words of Brennan J, speaking for the United States Supreme Court in Baker v Carr (1962) 369 US 186 at p.204, has "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions". As this passage reveals Baker v Carr was a constitutional case; but, of course, the need is the same in any case.

12. However, to assume that competitive instincts are aroused only by concern for material wealth would be to ignore history. Much of the progress of mankind has been achieved by people who have sacrificed their own material interests in order to champion ideals against fierce resistance. The recent Australian experience is that, in cases where ideologues have been able to gain access to the courts, cases have been hard fought and professionally conducted. I illustrate the point by referring to ten reported cases, involving diverse issues arising in different parts of Australia and a variety of plaintiff groups: Kent v Johnson (1973) 21 FLR 177, Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473, Benjamin v Downs (1976) 2 NSWLR 199, Attorney General (Vict); ex rel. Black v Commonwealth of Australia [1981] HCA 2; (1981) 146 CLR 559, Glorie v W A Chip & Pulp Co Pty Limited (1981) 39 ALR 67, Tasmanian Wilderness Society v Fraser (1982) 42 ALR 51, Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38, Parramatta City Council v Hale (1982) 47 LGRA 319, Fraser Island Defenders Organisation Limited v Hervey Bay Town Council (1982) 51 LGRA 94, Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160. In half of these cases the plaintiffs were wholly successful; in some others substantially so. In all of them the issues were fully and competently presented on behalf of the plaintiff. There was no want of "concrete adverseness". Reference might be added to the participation of voluntary groups in planning appeals and to the Aboriginal land cases, including Millirrpum v Nabalco Pty Limited (1970) 17 FLR 141, Koowarta, and the various Northern Territory Aboriginal land claims -- several of which have been fought to the High Court -- in the result of which no individual plaintiff has had an interest other than as an occupant, and custodian for the time being, of traditional land.

13. However, notwithstanding this record, cases occasionally arise in which a person who presents as plaintiff is manifestly incapable of representing in an adequate way the interest which he or she espouses. The answer to that problem is not to deny standing to the many in order to cope with the few; but rather to refuse the claim of the few on discretionary grounds. This is the solution which was recommended by the Law Reform Commission in its recent report. In the present case, there is no reason to doubt the capacity of the appellants adequately to represent the interest of those who oppose the distribution of the subject film.

14. The adoption of the view that the Court should recognize as "a person who is aggrieved", for the purposes of the Administrative Decisions (Judicial Review) Act, at least those who would, in the same cause, be accorded standing to seek injunctive or declaratory relief means that the present appeal must succeed. The appellants have no difficulty in demonstrating that the issue which they seek to litigate has a significance to them, of a spiritual kind, which is significantly different from the importance of the issues to members of the community generally.

15. The facts alleged by the appellants have yet to be investigated. However, as is agreed on behalf of the respondents, they must be taken as correct for the purposes of this appeal. They include claims by the appellants that they hold as tenets of their faith views about God, Jesus Christ and the Virgin Mary which are denied by the subject film. Details of these alleged denials are set out in the affidavit of the second appellant, Rev. Fr. John O'Neill. Moreover, it is alleged, the denial takes the form of blasphemy. This means, as Lockhart J has explained, that the allegation is that the film makes its denials in such a scurrilous and offensive form as to pass the limits of decent controversy and to outrage the feelings of committed Christians. The appellants are committed Christians. They are susceptible, therefore, to an offence and to an outrage which would not be shared by non-believers. Upon their case they, with other believers, have suffered from the release of the film a damage different in kind from the general damage which is suffered by all members of the community when the law is breached. And this special damage arises out of matters of spiritual concern.

16. As it happens the appellants are also priests; that is they are persons who have dedicated their lives and their talents to the propagation of beliefs some of which, they claim, are denied by the film. If it were necessary for them to do so, they would, I think, be entitled in relation to standing to rely upon the frustration of their professional activities which, on their case, the film will occasion. But I prefer not to rest my decision upon this additional factor. It seems to me that the damage they claim to sustain as Christians is enough.

17. In my opinion the appeal should be allowed. For the appellants formidable obstacles remain. The facts have yet to be established. If the appellants' case is proved, a question will arise as to the type of relief which is now appropriate to be given, having regard to the fact that the film has been released for exhibition -- and has actually been exhibited -- in Australia. But these are matters for the trial. The appellants should be recognized as persons aggrieved by the decision of the respondents and allowed to take the matter to trial.

18. I agree with the orders proposed by Lockhart J.