Legal standing and Court Proceedings
To take part in legal proceedings, a party must have legal standing. This means that they can show that they are affected by the outcome of the litigation and therefore have the right to participate, either by commencing proceedings, responding to an application, or being joined as a party. This page outlines the concept of standing and who has standing in different types of matters.
What is standing?
Standing is the ability to take part in legal proceedings. In many cases, it is clear who has standing in a matter and who does not. For instance, in a personal injury matter, the person who has sustained injury will have standing to take action against the party that allegedly caused it.
In other cases, especially in cases involving public rights, there may be uncertainty as to whether a person has standing. In such a case, the court will hear argument as to whether a person should be allowed to take part in proceedings.
Who has standing?
A person has standing if their rights and interests will be affected by the matter or if they have a ‘special interest’.
A person may have a financial or proprietary interest in a matter, a vocational interest (such as where they have expertise or prior involvement in a subject), or an interest based on an advantage they are likely to gain from the proceedings.
In the 1980 High Court decision of Australian Conservation Foundation v Commonwealth, the test for whether a person has standing in a matter based on a special interest was formulated as whether they are ‘directly affected… over and above an ordinary member of the public.’
Establishing special interest
If a party seeks to initiate or participate in proceedings relating to public rights, such as an environmental matter, they must establish that their interests are affected by the matter is a way that can be differentiated from those of the rest of the public.
This may be because:
- they are the owner of land adjoining land where a development is proposed
- they are a neighbour who will suffer loss of views or amenities as a result of a development
- they are an individual who regularly use the area in question
- they are an organisation that operates tours in the area
- they are a business that has a commercial interest in the area
- they are a group with a spiritual and cultural connection to the land.
Who does not have standing?
When the impact on a party becomes too remote, courts are likely to find that they do not have standing. For example, if a person is a ratepayer in the shire where a development is to take place, and will be affected no more than other residents, they will not be found to have standing.
However, if a person lives in an area where they would be likely to be particularly affected if a separate rate were declared, this may give rise to standing. This occurred in the matter of Clothier v Simper v City of Mitcham,
ACF v Commonwealth
In ACF v Commonwealth, the Australian Conservation Foundation brought an action against the Commonwealth government, arguing that its approval of a development in central Queensland was invalid.
ACF sought to nullify the decision based on the argument that the government had failed to consider the final environmental impact statement as per a procedure set out in the Environment Protection (Impact of Proposals) Act 1974.
A majority of the Full Court found that ACF did not have standing to maintain the action. The approval did not expose ACF to special damage or injure its special interest. The court said that, except in constitutional matters, members of the public with the same interest as anyone else do not have standing to sue to prevent the violation of a public right. The standing to enforce public rights belongs to the Attorney-General.
The fact that ACF’s primary objective was to protect the environment was not sufficient to establish standing.
Conclusion
In summary, while in many legal matters it is easy to determine who has standing, there are some types of litigation where the parties that have standing may not be clear-cut. This is particularly likely in cases that involve public rights, such as environmental matters. In such cases, a person, business or organisation will generally be found to have standing if they will be impacted in a way that is different and greater than the impact on the general population.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.