Economic interests can be enough to make people, companies and
organisations a "person aggrieved" and give them the
right to challenge an administrative decision, after the High
Court's decision this morning in Argos Pty Ltd v Corbell,
Minister for the Environment and Sustainable Development  HCA
The Argos decision turned on the ACT's Administrative
Decisions (Judicial Review) Act 1989, but as it is based on the
Commonwealth's Administrative Decisions (Judicial Review) Act
1977, it's relevant to Commonwealth decision-makers too. In
this Alert we'll refer to both Acts as the ADJR Act.
The economic interests in the Argos case
The ACT Minister for the Environment and Sustainable Development
approved a proposed commercial development in the suburb of
Giralang. This included a new supermarket.
The owners of supermarkets in Evatt and Kaleen, which are on
either side of Giralang, said that this would make their own
businesses less profitable; the landlord of the Kaleen supermarket
said the new supermarket could even force the Kaleen supermarket to
close, which would affect it.
Broad standing under the Administrative Decisions
(Judicial Review) Act
A person can challenge an administrative decision if he, she or
it is a "person aggrieved", which the Act says includes
"a person whose interests are adversely affected by the
decision" (section 3B(1)(a) in the ACT ADJR Act; section 3(4)
in the Commonwealth ADJR Act).
When a person is challenging a decision made under a particular
statute, that statute's scope or purpose does not limit
or alter the test for standing. That means that it
doesn't matter if the person's interests themselves are not
within the scope or purpose of the particular statute. For the
majority of the High Court, any attempt to limit the test in this
way would undermine the ADJR Act's purpose or even make the
ADJR self-defeating. The Planning Act is concerned with the general
commercial health of the Territory. However, in this case, it was
not necessary to prove that a trader's desire to be protected
from competition was directly relevant to the decision being made
under the Planning Act or the Territory Plan.
The particular statute's scope or purpose can be relevant to
standing, however, if they help the court to understand
what those interests are and how those interests are
affected by the decision that's being challenged.
Why these economic interests were enough
First, the High Court held that there is no general rule that
detriment to the economic interests of a business cannot satisfy
the statutory test of "person aggrieved". The High Court
confirmed that a "person aggrieved" should not be read
The next question is what sort of economic interests would be
enough. The High Court did not set out a simple test; it said
this will be a question of fact and degree,
looking at issues such as whether the effect is direct or indirect.
Clearly, however, mere speculation will not be enough. The more
direct, or proximate, the effect of a decision on a person's
interests, the more likely it is that the person will be a
In this case, the majority accepted that the interests of the
companies which ran the supermarkets were enough to make them
"persons aggrieved". It was enough to show that there was
a real risk that their turnover would be adversely affected by the
proposed development. The landlord's interest, however, was
based on speculation that its tenant's business would fail,
leading to a loss of rental income. There was no evidence of how
likely the business failure would be, and thus of how likely it was
to lose rent. The landlord's interest was held to be too remote
to give it standing under the ADJR Act.
A wider range of interests, a wider pool of potential
challengers of an administrative decision
The High Court has given a resounding affirmation of the ADJR
Act and the role it plays. It rejected taking a narrow
interpretation that would limit the right of a person to challenge
an administrative decision. It does however require the interest in
the decision to be more than speculative or an apprehension of
The decision is a reminder that in making administrative
decisions for government decision-makers to broadly consider the
effect of their decisions – and the prudent approach is to
document that, including in any written reasons.
Down the track, decision-makers may need to brace themselves for
potentially more challenges.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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