ADMINISTRATIVE AND CLERICAL OFFICERS ASSOCIATION AND ANOR v CONN AND ORS
Supreme Court of the Northern Territory of Australia. Kearney J.
13 August 1987; 26 February 1988, at Darwin.

Locus Standi - non-compliance	with		statutory	requirements relating		to		filling	of	position			in	Public	Service application by public servant and public service		union		for declaration		that	appointment			void			standing		to	seek declaration - test of standing		to	enforce	public		duty specific	interest	in	subject - matter of action - whether standing should be decided as a preliminary issue.
Practice and Procedure	application	for	declaration Attorney-General should be named to represent the Crown.

Statutory duty, Breach of non-compliance with statutory requirements relating to filling of position in Public Service - requirements creating a public duty, not a private right - application by public servant and public service union for declaration that appointment void - standing to seek declaration - test of standing to enforce public duty.

Cases applied:
'FAI Insurances Ltd v Winneke (1982) 41 ALR 1
,Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
,Australian Conservation Foundation Inc. v The Commonwealth of Australia (1980) 146 CLR 493
'.,,Robinson v The Western Australian Museum (1977) 138 CLR 283

Cases referred to:

1

,Boyce v Paddington Borough Council (1903) 1 Ch.109 Northern Territory of Australia v Skywest Airlines Pty Ltd
(1987) 48 NTR 20
, Baker v Carr (1962) 369 U.S. 186
.Davis v Commonwealth of Australia (1986) 68 ALR 18 United State v Students Challenging Regulatory Agency
Procedures (SCRAP) (1975) 412 U.S. 669

Statutes:
Public Service Act, ss.19(2), 29(3) and (4), 30, 66(2)(a)(iii)
Public Service Regulations, ss.6, 17, 21 and 33(1)(d)

Counsel for the Defendants/Applicants: Solicitor for the Defendants/Applicants:

Counsel for the Plaintiffs/Respondents:

T.I. Pauling Q.C.
B.L. Johns

Solicitor for the Northern Territory

Bracher

Solicitors for the Plaintiffs/Respondents: McCormack & Co.

ORDER

Application by defendants refused.

kea880024
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No.341 of 1987

BETWEEN:

ADMINISTRATIVE AND CLERICAL OFFICERS ASSOCIATION
First Plaintiff

and
JANIS ANGELA PORTER
Second Plaintiff

AND:  NEIL CONN

and

First Defendant

ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY
Second Defendant

and
PUBLIC SERVICE COMMISSIONER FOR THE NORTHERN TERRITORY
Third Defendant

CORAM:	Kearney J.

REASONS FOR DECISION
(delivered 26 February 1988)

The application

By Interlocutory Summons filed on 4 August 1987 the defendants seek to have these proceedings dismissed or permanently stayed, on the basis that neither plaintiff has standing to sue; that is, that neither plaintiff is entitled

to raise the issue and	apply Alternatively,	the	defendants dismissed, on the basis		that process of the court.

for	the	remedy	they	seek. ask that the proceedings be they		are		an	abuse	of		the

The application came on before me on 13 August 1987 as a preliminary issue; I rule on it today. I record  that at the outset leave was granted to the plaintiffs to discontinue the proceedings against the then-named Second Defendant, the Administrator, and to substitute in his place the Attorney-General, as the proper legal representative of the Crown in right of the Northern Territory, in its executive capacity. The application was not opposed. The Attorney-General is clearly the correct person to represent the Executive - in practical terms the Government - in legal proceedings; see FAI Insurances Limited v Winneke & Ors (1982) 41 ALR 1.

The background to the application

By Originating Summons filed on 4 June 1987 the plaintiffs instituted these proceedings claiming in essence that:-

The First Plaintiff is a registered trade union,	a body	corporate	representing	Northern	Territory

public servants in industrial and employment matters. The Second Plaintiff is a Northern Territory public servant and, as such, is eligible to be considered for promotion to the position of Under-Treasurer for the Northern Territory.

On or about 28 November 1986 the Second Defendant, or alternatively, the Third Defendant, or alternatively a Minister or Ministers unknown to

the	plaintiffs, called Marat	Pty

purported Ltd	to

to fill

appoint	a company the	position	of

Under-Treasurer for the Northern Territory; or alternatively, to appoint the First Defendant to fill that position upon terms that the salary and other benefits incidental to that position were paid to and conferred on Marat Pty Ltd.

The plaintiffs sought a declaration that the

appointment as Under-Treasurer of the First as	the	case	might	be,	of	Marat	Pty unlawful as being ultra vires the power of purported		to		make	that	appointment		to

Defendant,	or, Ltd, is void and the	person	who that		position;

alternatively, that the terms and conditions of	appointment of the First Defendant as Under-Treasurer, are unlawful.

In	the	Originating	Summons, the plaintiffs based their	claim		for		a	declaration	on	9	different	grounds

involving various breaches of provisions of certain Acts. However, by Statement of Claim delivered on 27 July 1987, as amended on 13 August 1987, the plaintiffs changed to a considerable degree the basis upon which they seek relief.

It is necessary to set out the substance of the grounds relied on by the plaintiffs because for the purposes only of dealing with this application to dismiss the proceedings for lack of standing, the matters alleged in those grounds are not in issue. Mr Pauling made it clear that the plaintiffs' allegations, or many of them, would be very much in issue if the action came to trial. At this stage, however, they are not in issue, as the defendants have not yet delivered their Defence and presently contend that the plaintiffs are not entitled to litigate those issues. The grounds constitute the matrix of the case which the plaintiffs seek to make, and which the defendants

contend they are not entitled	to	make. grounds on which the plaintiffs rely are:-

In	summary,	the

(a)	There was no advertisement of the vacant position of Under-Treasurer before whichever purported appointment, either that of the First Defendant or of Marat Pty Ltd, was made, even though the Third Defendant had not first directed that there be no such advertisement; that is, the requirements of s.29(3) of the Public Service Act (herein "the Act") were not met in relation to the vacancy.

1. (b)

Alternatively, the Third	Defendant	directed	that there	be	no such advertisement, but did so for an

improper	purpose,	namely,
prospective	applicants	for

to	conceal	from the position the fact

that there was a vacancy and thus to give the First Defendant an unfair advantage over those prospective applicants, and not for any purpose of the Act.

2.  (a)

2.   (b)

The purported appointment either of the First Defendant or Marat Pty Ltd to the position in question was not advertised, even though the Third Defendant had not first directed that there be no such advertisement; that is, the requirements of s.29(4) of the Act were not met in relation to the appointment.

Alternatively, the Third Defendant directed that there be no such advertisement but did so for an improper purpose, namely, to conceal the fact and nature of the appointment made and not for any purpose of the Act.

The	purported	appointment made) was ultra		vires	the

of	Marat	Pty Ltd (if power	of	the	person

making	the	appointment,

in	that	only a natural

person may be appointed as Under-Treasurer.

The appointment of Marat Pty Ltd (if made) was designed to avoid the purposes of the Act and was not made for any purpose of the Act; and accordingly was unlawful null void and of no effect.

The means by which the First Defendant was appointed to the position and the terms of that appointment were designed to avoid the provisions
of the Act and not to accomplish any purpose of the Act; and accordingly were unlawful null void and of no effect. The terms of the appointment were, inter alia, that the salary and other benefits of the position would be paid to Marat Pty Ltd, and this for the improper purpose of reducing the First Defendant's income tax rather than for any purpose of the Act.

The Second Plaintiff had the qualifications and experience to perform the duties of
Under-Treasurer, and an application by her for that position would have warranted proper consideration.

The failure by the Second and Third Defendants to perform their duties under the Act in relation to the making of the appointment to the position of Under-Treasurer deprived the Second Plaintiff of

the opportunity to apply for that position and to be considered for promotion to it, causing her loss and damage.

The appointment of Marat Pty Ltd to the position of Under-Treasurer, if made, resulted in the First Plaintiff being deprived of the opportunity of gaining the successful applicant for that position as a member, and it has thereby suffered damage.

It can be seen, therefore, that the case on which the plaintiffs base their claim for relief, and which the defendants contend they are not entitled to attempt to make out, is that -

Either the requirements of ss.29(3) and (4) of the Act were not complied with when the position was filled; or

if those requirements were complied with, the directions given by the Third Defendant not to advertise the vacancy and the later appointment , were for improper purposes in the sense that they were not given for the purposes of the Act but for the purpose of concealing the situation and in the case of the s.29(3) direction, of giving an unfair advantage to the First Defendant.

Any appointment of Marat Pty Ltd to the position was ultra vires the Act, and designed to avoid its purposes.

The First Defendant was appointed by means designed to avoid the provisions of the Act and not to accomplish any purpose of the Act but to reduce his income tax.

The Second Plaintiff, qualified for consideration for appointment as Under-Treasurer, suffered loss and damage in that she had been deprived of the opportunity to apply and to be considered for that position by the failure of the Second and Third Defendants to perform their duties under the Act.

The First Plaintiff had suffered damage, if it was Marat Pty Ltd which had been appointed as Under-Treasurer, by losing a potential member.

It is desirable to stress that these 6 matters, which raise different issues are in fact as yet mere unproved allegations by the plaintiffs, the grounds they allege as the basis for the relief they seek, and it is only for the purpose of deciding the question whether the plaintiffs are entitled to bring these proceedings that the allegations are treated as not in issue.

'

It may be noted on this point that Mr Pauling Q.C. stated from the Bar Table that it was a fact that the First Defendant and not Marat Pty Ltd who had been appointed as Under Treasurer. However, that goes to a matter of fact alleged by the plaintiffs and any challenge would require to·
be pleaded by way of traverse in the Defence, if the proceedings are not dismissed today. I consider I should deal with the defendants' claim that the plaintiffs are not entitled to sue, on the basis of the factual background relied on by the plaintiffs to found the declaration they seek. Standing is raised here as a preliminary issue; the merits of the case have not been gone into, and are not capable of being gone into, at this stage. The materials before me were very scanty, and the argument very limited.

For the purposes of this application the defendants rely on the affidavit of Meredith Smith Harrison sworn on
4 August 1987. It is there deposed that any qualified person, whether or not a Northern Territory public servant, may be appointed to the Departmental Head position of Under-Treasurer.

The plaintiffs rely in this application on the affidavit of the Second Plaintiff sworn on 12 August 1987. It is there deposed as follows: she is a Northern Territory public servant of Executive level; her qualifications and employment history are as set out therein; the First

Defendant, or a company controlled by him [that is, Marat Pty Ltd], was appointed Under-Treasurer in late November or early December 1986; the vacancy of the position of Under-Treasurer was never advertised; she would have given serious consideration to applying for appointment to· that position had it been advertised; and her qualifications and experience are such that she would have been a suitable and serious applicant for the position.

It is common ground that, in terms of the Act, the Under-Treasurer is a Departmental Head; and that under s.19(2) that position may be filled by the promotion or transfer of a public servant or by the appointment of a person from outside the Public Service.

The dismissal application - the defendants' case

The defendants' case is two-pronged.

The first submission relates to the Second Plaintiff. It is submitted that most of the contents of the Second Plaintiff's affidavit of 12 August 1987 (set out

above) are irrelevant because there is	nothing court	to	suggest	that	only	persons	with qualifications, or public servants, are		eligible

before	the
particular to	apply

for	the	position	of	Under-Treasurer;	accordingly,	her

qualifications as set out do not tend to show that she is within some small pool of eligible applicants so as to have the special interest in the filling of the position which she is required to show. In other words, the statement of her qualifications does not assist the court in its task, on the question of the Second Plaintiff's standing to sue, of assessing the importance of her concern with the filling of the position of Under-Treasurer by the First Defendant, the subject matter of the action. The Second Plaintiff, while

eligible	in consideration

her for

capacity promotion

as	a	public	servant	for
to	the	position	of

Under-Treasurer, suffers no loss from non-advertising of the

vacancy	as	the	position	could	have	been	filled	by

appointment from outside the Public Service. She has no "special interest" in the question of the filling of that position and therefore lacks standing to bring these proceedings. For this proposition the defendant relied on Onus v Alcoa of Australia Limited (1981) 149 CLR 27 and Australian Conservation Foundation Inc v The Commonwealth of Australia (1980) 146 CLR 493.

The defendants' second  submission is as follows. In these proceedings the plaintiffs claim that because certain . requirements of the Public Service Act were not observed when the position of Under-Treasurer was filled
for  example, the requirement in s.29(3) that in the absence
of a contrary direction the  vacancy  be  advertised     the

purported appointment made to that position in November or December 1986 is unlawful and of no effect. That is not so. It is clear from the Act that the Third Defendant has a discretion on the matter of advertising and it is quite proper in appropriate circumstances for a ·vacancy not to be advertised and for a particular person to be "head-hunted" for appointment as Under-Treasurer. There is no right of appeal against any such appointment but by these proceedings the plaintiffs are in fact seeking to appeal that appointment. What the plaintiffs are complaining about is a procedure which the Act itself contemplates. The provisions of the Public Service Act in question in these proceedings create duties owed to the public and the plaintiffs have no standing to enforce compliance with those public duties because they lack the necessary degree of proximity to the subject matter of the action, the filling of the position in 1986, which is required of private individuals who seek to enforce a public duty. For this proposition the defendants relied on Boyce v Paddington Borough Council (1903) 1 Ch.
109 at 114; Robinson v The Western Australian Museum	(1977)
138 CLR 283; and the Onus and Australian Conservation Foundation cases (supra).

The dismissal application - the plaintiffs' case

The substantive principles which govern the question of the plaintiffs' standing to sue are to be found in Robinson, Australian Conservation Foundation and Onus (supra).

For the purposes of deciding the application by the defendants the question is: do the plaintiffs have a special interest in the subject matter of their action? The plaintiffs' grounds raise as issues that the defendants did not observe the requirements of the Act which relate to the making of the appointment to Under-Treasurer, when filling that position; and that, in doing so, the defendants flouted the requirements of the Act, for  improper  purposes. Section 30 of the Act provides for recruitment and promotion procedures designed "to preclude patronage, favouritism and unjustified discrimination". The plaintiffs do not contend that the First Defendant was not an appropriate person to be appointed as Under-Treasurer. Their case is that  the failure by the defendants to follow the correct procedures when appointing him, procedures laid down by statute, promotes that which is intended to be precluded by  s.30. The Government as law-maker must display some minimum respect for the law; Northern Territory of Australia v Skywest Airlines Pty Ltd (1987) 48 NTR 20 at 46. The action should be dismissed on the basis that the plaintiffs lack

standing, only if the plaintiffs' claims are clearly not arguable; that is not the case. The Act is distinguishable from the legislation considered in Australian Conservation Foundation (supra) which bore only on the conduct by the Minister of his Department;· the Act very largely is concerned with the rights and duties of public servants. So in bringing their action the plaintiffs are not in the same position as the Foundation was held to be; they cannot be described as mere meddlers because they have a real interest in the issues they raise, which involve statutory procedures which govern the way in which a senior public servant should have been appointed. The First Plaintiff has a legitimate role in promoting the career structure of its public servant members. It has a statutorily-recognized role not only in industrial matters affecting Northern Territory public servants, but also in the process of promotion provided for under the Act; s.66(2)(a)(iii) of the Act and Regulations 6, 17, 21 and 33(1)(d) of the Public Service Regulations. Its proximity to the subject matter of the action will, however, only properly be understood from a consideration of the evidence after the pleadings are closed, the parties are properly at issue, and the action is brought to trial; it will involve the resolution  of conflicting assertions of fact and a complex inter-mix of Northern Territory and Commonwealth legislation. Accordingly, this is not a case where the question of standing to sue should be  determined as a preliminary issue, because it appears from the

Statement of Claim that the plaintiffs have a reasonably arguable case. Although the Second Plaintiff would suffer the damage pleaded, the test of standing is not that she would suffer special damage but whether she has a special interest in the First· Defendant's appointment to the position. The First Plaintiff has duties to perform under the Act which affect the members of the Public Service, and it therefore has an interest in seeing that the system for the regulation of the Public Service works in the manner provided for by the Act. On the basis of the factual situation alleged by the plaintiffs and not in issue on this application it is not obvious that the First Plaintiff as the appropriate organisation of public servants referred to in the Act, has no special interest in ensuring that the Act is not subverted. The Second Plaintiff's case in the action is that the failure to observe certain statutory procedures led to her losing an opportunity to be considered for promotion to the position of Under-Treasurer. That is the loss she claims to have sustained. The question on  the issue of standing, whether that loss is peculiar to her, is one of fact and degree, which will only be resolved on the evidence at the trial; so it is not appropriate to resolve the question of standing as a preliminary issue. The damage does not in any event have to be exclusive to the Second Plaintiff. That there is power to appoint an
Under-Treasurer  from  outside  the Public Service is not in
issue, but the vacancy must first be advertised as  the  Act

requires unless the Third Defendant otherwise directs, and any such direction must be for a proper purpose of the Act. The effect of denying locus standi to the plaintiffs would be that there would be no one who could complain of the alleged failure ·by the defendants to observe the requirements of the Act, and the defendants would then be free to ignore the statutory requirements with impunity; the Court should be slow so to decide, as a preliminary matter.

The authorities cited

In Boyce's case (supra) the question was whether the plaintiff could maintain his action without the concurrence of the Attorney-General. It was held that he could, on the basis that he was suing in respect of an interference with a public right (to have certain space kept as open space), from which interference he personally sustained special damage (in the form of the loss of the unimpeded access of light to his building's windows). At
p.114 Buckley J. said:-

"A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with ... and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the
public right."

The subject matter of these proceedings is a particular appointment to the position of Under-Treasurer; in the terminology of Buckley J. I do not consider that any "private right" of either plaintiff is interfered with by that appointment; what is contended is that there has been an "interference with a public right" and so each plaintiff must show "special damage peculiar to himself from the interference".

In Robinson's case (supra) the finder of the remains of a Dutch vessel which had foundered off the Western Australian coast in 1656, sought declarations that certain State legislation which vested rights in the wreck in the Museum, was beyond the legislative competence of the State Parliament. The plaintiff claimed that he had a special interest in the question whether the legislation was valid because it denied his right as finder to the possession of the wreck and destroyed his claim for reimbursement of salvage expenses. The High Court held that the plaintiff, as finder of the wreck, had standing to seek the declarations, and the legislation was invalid.

Barwick C.J. said at pp.292-3:-

"It is said on behalf of the defendant that the plaintiff has no greater interest than any other member of the public to contest the validity of the Western Australian Acts. But I am clearly of the opinion that the plaintiff has a greater interest than any other member of the public to seek the

assistance of the Court to determine the validity of the legislation. He located and relocated the remains of the ship and, in fact, he has done acts of possession in respect of it, i.e. of such possession of which such remains are capable. He has 'worked' the ship for a considerable period of time. He claims to have done such acts as would entitle him either to salvage in the strict sense of the word or to fair compensation for his efforts if the Acts in question were not operative...  It is sufficient for present purposes that he has claimed to be entitled either to salvage or compensation.

The Acts would prevent the plaintiff from seeking to assume possession or, if the right conclusion be that he has already been in possession, to continue possession, of the wreck. If valid, his claim to salvage or compensation would seem to be denied by the legislation...

The	plaintiff		is		not merely in the member	of	the		public	who	falls prohibition		of			the	statute..•

position of a within	the
It	is	no

exaggeration to say that no member affected to the same extent as is the provisions of the Acts to referred."
(emphasis mine)

of the public is the plaintiff by which	I	have

Mason J. commented on the locus standi rule at pp.327-328:-

"The rule is generally expressed in the proposition that a person not affected in his private rights may not sue for declaratory relief. Sometimes the rule is expressed more liberally, as it was by Gavan Duffy C.J., Starke and Evatt JJ. in Anderson v The Commonwealth (1932) 47 CLR 50, at p.52 when their Honours said that the right of an individual to bring an action for an ultra vires declaration does not exist 'unless he establishes that he is "more particularly affected than other people" (see Brice on Ultra Vires, 2nd ed., p_.366)'. The rule is said to be directed against multiplicity of actions. In truth it reflects a natural reluctance of the part of the courts to exercise jurisdiction otherwise than at the instance of a person who has an interest in the subject matter of the litigation in conformity with the philosophy that it is for the courts to decide actual controversies between

parties, not academic or hypothetical questions. Reflection on the considerations which underlie the rule do not provide much assistance in defining the nature of the interest which a plaintiff must possess in order to have locus standi. However, it does indicate that the plaintiff must be able to show that he will derive some benefit or advantage over and above that to be derived by the ordinary citizen if the litigation ends in his favour. The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another. Here the plaintiff does not seek performance of a public duty; nor does he assert that he will suffer special damage through interference with a public right	cases which are notorious for their difficulties."
(emphasis mine)

Murphy J. applied the American test, stating at pp.344-345:-

"In Baker v Carr (1962) 369 U.S. 186 at p.204, the United States Supreme Court stated that 'The gist of the question of standing' is whether the plaintiff has 'alleged 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.' (See also Flast v Cohen (1968) 392 U.S. 83 at p.99; 20 Law Ed.2d 947 at
p.961; Crouch v The Commonwealth (1948) 77 CLR 339)."

I note that 2½ years later, in the Australian Conservation Foundation case (supra) at p.530, Gibbs J. (as he then was) considered that the American test adopted by Murphy J. was similar to that which his Honour considered should be applied in Australia. In Robinson's Case (supra) Gibbs J. considered that the plaintiff had standing to sue for a different reason; his Honour said at p.301:-

"He had worked on the wreck, and had recovered things of value from it, and was prevented by the operation of the statutes from continuing to do so. In other words the statutes prevented him from carrying on the activity in which he had been engaged and thereby caused him possible pecuniary detriment; they interfered with what was for him his trade or business."
(emphasis mine)

His Honour observed at pp.302-303:-

"The question whether a plaintiff has sufficient interest to challenge the validity of legislation - an interest greater than that of any ordinary member of the public - may sometimes depend upon the resolution of controverted questions of law or fact. It may be clear enough that if the plaintiff has the right or interest which he claims, and if the legislation has the effect which he ascribes to it, the legislation, if valid, will so affect the plaintiff as to give him standing to sue, but it may be disputed that he has such a right or interest, or that the legislation has such an effect. In such a case it will be a matter for decision whether the court proceeds to determine the disputed questions whose only immediate relevance is to establish whether the plaintiff has standing to sue, or whether it will be satisfied to accord standing to the plaintiff on the ground that he asserts, not implausibly, that his interests are threatened by the operation of the legislation in question. The court has a discretion: it is not bound to take one course rather than the other. If the plaintiff's claim to have a locus standi is merely colourable, and can easily be exploded, the court will no doubt proceed immediately to decide the question of standing and, having decided it against the plaintiff, will dismiss the action. But if the investigation of the claim requires the consideration of weighty and complex questions which may never fall for decision if the issue of validity is decided against the plaintiff if may be more convenient to proceed immediately to determine the validity of the challenged statute."
(emphasis mine)

;	•. •

Stephen J.,	dissenting,	considered	that	the
plaintiff was not entitled to relief because his only right was to salvage for objects he had already recovered, a right not affected by the legislation. His Honour said at p.315:-

"In one respect only, that is, by his exclusion from the wreck and its site, has he, in my view, felt the impact of the legislation and in that instance it has affected him no differently from any other member of the public."

What Buckley J. said in Boyce's case (supra) was expanded and applied by the High Court in the Australian Conservation Foundation case (supra).

The Foundation had sued the Commonwealth and some Ministers for declarations under an Act and Administrative Procedures under the Act, that certain approvals relating to the establishment and operation by a company of a resort and tourist area, were unlawful and invalid because, inter alia, the procedures had not been observed in certain respects. The question of standing to sue was raised as a preliminary issue, as here; the Foundation relied on its well-known interest in the preservation of the environment, and on the fact it had lodged a submission under the Administrative Procedures. At instance, Aickin J. discussing Robinson's case (supra) said at p.508:-

"It appears to me that although the matter is expressed in slightly different ways in the various

judgments there is a clear majority of the Court for the proposition that unless a plaintiff is adversely affec ed in some way to an extent greater than the public generally he may not maintain an action for an injunction or a declaration in respect of either the validity of a statute or some breach by the executive government or statutory authorities in respect of matters of public law and in particular of breaches of statute or regu- lations." (emphasis mine)

I respectfully adopt that test and apply it here.  His Honour turned to the provisions of the legislation under which the approvals had been given and concluded at p.510:-

"I am unable to draw an inference from the provisions of the Act and the Administrative Procedures that they show a legislative intention that any private citizen may apply to the court to enforce compliance with their requirements by the executive government or by statutory authorities. It appears to me that the Act and the Procedures are directed towards the regulation of internal governmental procedures and the relations between different organs of government, whether exercising the executive power of the Commonwealth or performing functions as statutory authorities (as defined).
The procedures are entirely within the control of the executive government .•. Private citizens may be adversely affected by government decisions and in appropriate cases may resort to the Courts to challenge the power to make a particular decision having such an effect upon them, but that is a matter quite different from enforcement of these internal governmental procedures. If these are duties of an enforceable character placed on Ministers and others, they are enforceable only by the Attorney-General or by those who are themselves adversely affected more than or differently from the qeneral public. It is, in my opinion, clear that a private individual, whether a person or a corporation is not given, by the Act, either expressly or by implication, a status enabling him to apply to the Court to enforce compliance." (emphasis mine)

' •	•

I consider that the latter part of these remarks are applicable to the Act so far as it applies to the specific appointment under attack in this case. His Honour turned to the question of the link between standing to sue and the remedy sought ·and said at p.511:-

"In my view the authorities to which I have referred above establish that it is an essential requirement for locus standi that it must be related to the relief claimed. I do not mean that, where the relief is discretionary, locus standi depends on showing that the discretion must be exercised favourably. What is required is that the plaintiff's interest should be one related to the relief claimed in the statement of claim. Here the primary relief is a declaration that whatever decision was made was unlawful and invalid. Thus, in the present case, if the decision was to grant exchange control approval to some transaction, that approval was null and void and the transaction if carried out was illegal, so that an offence was committed by persons who may well have known nothing of the procedural defects of which the plaintiff complains. There is, it seems to me, no relationship between that relief and the failure of the Minister to reply promptly to the plaintiff's request for information. The giving of such a reply is not made by the Act or the Administrative Procedures a condition precedent to the making of a decision by the Minister or anyone else.
In my opinion, the failure to comply with the Administrative Procedures complained of does not give a person who makes a submission an enforceable right to have the relevant administrative decision, and action taken thereunder, declared void and illegal, or merely void."
(emphasis mine)

I note that the case which the plaintiff seeks to make in this action is very different to that which the Foundation sought to make; it cannot be said, in my opinion,

that the plaintiffs' interests are not related to the relief sought.

Aickin J. found the plaintiff lacked standing and ordered that the Statement of Claim be struck out and the action dismissed. On appeal the Full Court of the  High Court held that the Foundation had no special interest in the subject matter of the action over and above that enjoyed by the public generally and accordingly it had no locus standi to sue for an injunction or declaration to prevent the violation of a public right or to enforce the performance of a public duty.

Gibbs J. said at p.524:-

" the Act does not expressly create any  rights, and the duty which it casts upon each Minister of State is one which is to be performed by him in the course of administering the affairs of his department. That is a public duty, and it is not owed to any particular person or persons."

His Honour concluded that the Foundation had no right to ensure that the Administrative Procedures were observed and continued at p.526:-

"For the reasons I have given, the action was not brought by the Foundation to assert a private right. It is brought to prevent what is alleged to be a public wrong. The wrong is not one that causes, or threatens to cause, damage to the Foundation, or that affects, or threatens to affect, the interests of the Foundation in any

material way. The Foundation seeks to enforce the public law as a matter of principle, as part of an endeavour to achieve its objects and to uphold the values which it was formed to promote.  The question is whether, in these circumstances, it has standing to sue.

It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction.  The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.

The rules plaintiff (emphasis

as to standing are the seeks	a	declaration
mine)

same	whether	the or an injunction."

In the present case, the Second Plaintiff is not seeking to enforce the Act as a matter of principle, and that is not the type of case which the First Plaintiff seeks to make. His Honour then quoted what Buckley J. had said in Boyce's case (supra) at p.114 and continued at p.527:-

"The general principle stated in Gouriet v Union of Postal Workers, (1978) A.C. 435 that a private person, who is in the same situation as any other member of the public has no standing to claim either an injunction or a declaration to enforce a public right or duty, has been consistently applied in this Court.
Although the general rule is clear, the formulation of the exceptions to it which Buckley J. made in Boyce v Paddington Borough Council is not altogether satisfactory. Indeed the words which he

,,

used are apt to be misleading. His reference to 'special damage' cannot be limited to actual pecuniary loss, and the words 'peculiar to himself' do not mean that the plaintiff, and no one else, must have suffered damage. However, the expression 'special damage peculiar to himself' in my opinion should be regarded as equivalent in meaning to 'having a special interest in the subject matter of the action'."
(emphasis mine)

I note that this formulation by Gibbs J. was applied in the Onus case (supra) by Stephen J. (p.41), Mason J. (p.43), and Murphy J. (p.45) and now clearly is the criterion to be applied on the question of standing; see, for example, Davis v Commonwealth of Australia (1986) 68 ALR 18. Dealing with the nature of the "special interest" required his Honour said at pp.530-531:-

"...[a special] 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."
(emphasis mine)

I apply this rule to determine whether the plaintiffs have the necessary "special interest".

On the question whether the Foundation's concern for the environment and the perceived threat to it represented by the development, could be treated as "special damage  peculiar to himself", in the words of Buckley J,,  so as to give standing to sue, Stephen J. 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 doubts ensures that what it does to give effect to such an object will not be ultra vires: it will not otherwise improve its position."

I consider that the position of the  First Plaintiff, in relation to its concerns about matters dealt with under the Act, is very different to that of the Foundation and its concerns in relation to the legislation there in question.

In the Onus case (supra) the High Court held that the plaintiffs, descendants of the Gournditch-jmara Aboriginal people and custodians by custom of their relics, had standing to sue for an injunction restraining Alcoa from carrying out on its land certain works which the plaintiffs claimed would interfere with those relics, in breach of an Act. The plaintiffs had standing because as members of that

Aboriginal group their customary obligations to guard the relics and their use of the relics, gave them a special interest in the subject matter of the action which was greater than that of members of the public generally. The Court rejected a submission that the Act had been passed for the benefit of Aboriginal people as a class (so that any member of that class could sue without proving special damage or a special interest). The Act had been passed for the benefit of the public at large and did not confer any private rights on Aboriginals as a class.

At p.35 Gibbs C.J. discussed the conflicting considerations which underlie the law relating to the standing of a private person to sue and continued:-

"The principle which has been settled by the courts does attempt a reconciliation between these considerations. That principle was recently stated in Australian Conservation Foundation Inc. v The Commonwealth (1980) 146 CLR 493. 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: (1980) 146 CLR at pp.530-531, 537, 547-548.
The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation." (emphasis mine)

Stephen J. said at p.42:-

" the distinction between this case and the A.C.F. Case is not to be found in any ready rule of thumb, capable of mechanical application; the criterion of 'special interest' supplies no such rule. 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."  (emphasis mine)

I approach the question of the existence of "special interest." in the way indicated by Stephen J.:	the factors are the importance of the plaintiffs' concern with the particular appointment in quest.ion, and the closeness of their relationship to that appointment.

Murphy J. noted that the the test in Baker v Carr (supra) which he had applied in the Australian Conservant.ion Foundation case (supra) was not limited to constitutional cases and said at p.44:-

"It is sufficient for standing that a plaintiff have an interest exceeding that of members of the public generally in preventing breach of a public right or in securing the performance of a public duty. The interest need not be peculiar to the plaintiff. It is enough that the plaintiff's interest, even if many others also have it, is not the same as that of members of the public generally. A legal interest is not necessary to establish standing; it need not be proprietary; a

cultural	or	other (emphasis mine)

interest	may	suffice.

I	apply	the part of his Honour's remarks I have emphasized to the interests of the plaintiffs in this case.

Conclusions

The duties created by the Act in relation to the particular appointment the subject of this litigation are public duties not owed to any particular person or persons. The Act was not passed for the benefit of public servants as a class, but to regulate the Public Service in the public interest. In the course of regulating the Public Service, the Act, inter alia confers certain benefits on public servants. Except where, in the circumstances of the particular case, a public servant acquires a right through the operation of the Act to have standing to sue, for breaches of public duties under the Act a public servant must show a special interest greater than that of members of the public generally, though not necessarily greater than that of other Northern Territory public servants.  Members of a class may have in common a special interest greater than that of the general public.

Although for the reasons which later appear, it is not necessary to reach a concluded view, both plaintiffs have sufficiently shown that if they succeed in their action they are likely to derive some material benefit or advantage over and above that which would have been derived by the ordinary citizen; the merits, of course, have not been explored. Their special interest in the particular appointment under the Act which is in question is greater than that of any ordinary member of the public. They are both adversely affected to an extent greater than the public generally, by the breaches of the Act which they allege against the defendants. It is clear that the enforcement of public duties under the Act as a matter of principle is a matter solely for the Attorney-General, but that is not the purpose of the plaintiffs in instituting this litigation.

There is no doubt that the subject matter of the action is in actual controversy between the parties; it does not involve mere academic or hypothetical questions. The personal stake of both plaintiffs in the outcome appears to be such as to ensure true adversarial disputation, and the presentation of the best argument.

The question of the standing of the plaintiffs was raised before me as a preliminary issue; the parties are not yet at issue, and the merits have not been gone into. The defendants seek as yet no decision as to whether the rights

asserted by the plaintiffs xist, or whether the facts they allege are true and support their claim. There has been as yet no meticulous examination of the duty of the defendants under the Act and the nature of the alleged breaches which is really an essential preliminary to the determination of standing. The defendants dispute that what they are alleged to have done or not to have done has the effect under the Act for which the plaintiffs contend, but it was not sought

to	have	these		questions circumstances	it	appears

resolved	before	me.	In	the
to	me as a matter of discretion

that the better course is to accord standing to the plaintiffs on the ground that they assert, not implausibly, that their special interests are affected by what they

allege	was	done or not done.

Standing may depend upon the

resolution of the questions ultimately	prove	to	be.

in	issue,	whatever	they	may The determination of standing in

this case cannot be divorced from	a	consideration	of	the
merits	at	the	trial,	at which time the law and facts are

determined.

I do not regard the plaintiffs' claim	to	have

standing as merely colourable and easily exploded. Their arguments cannot be dismissed as frivolous or hopeless. It may be that when the issues are narrowed by the pleadings the question of standing may again emerge but at the moment it cannot be said that this action is "no more than a vehicle for the vindication of the value interests of concerned bystanders": United States v Students Challenging Regulatory Agency Procedures (SCRAP) (1975) 412 U.S. 669 at
687.

•.	V

No argument was directed to the alternative ground of this application, that the proceedings are an abuse of the process of the court; accordingly, it is unnecessary to deal with that aspect.

The defendants' application of 4 August 1987 is refused. The plaintiffs have leave to join in Marat Pty Ltd as a defendant. The plaintiffs must have the costs of the application of 4 August in any event. I certify  for counsel.