Last updated 30 August 2016

Only an aggrieved person may apply for a statutory order of review under the Judicial Review Act 1991 (Qld) (Judicial Review Act). An aggrieved person is one whose interests are or would be adversely affected by decision, relevant conduct or failure to make a decision (s 7 Judicial Review Act). If the decision complained of is the making of a report or recommendation, a person whose interests would be adversely affected if a decision was or was not made in accordance with the report or recommendation can seek judicial review.

The phrase ‘a person whose interests are adversely affected by the decision’ has been interpreted on a number of occasions, and it generally requires that a person must have an interest that is greater than the interest of a member of the general public. This will not be a problem when an applicant has been directly and materially affected by a decision (e.g. being refused a licence).

The difficulty primarily arises when a person or public interest group is not directly affected by a decision in the same sense, but has a degree of concern about the decision (e.g. an environmental group that wants to challenge a decision to grant development permission to a developer).

Traditionally, it was necessary for the Attorney-General to bring an action against a decision that affected the public interest, and it was a matter of discretion whether or not the Attorney-General chose to do so. An individual or group might have standing to seek judicial review if it could be shown that the infringement of the public interest affected them more than other members of the public, or they had a greater interest in the subject matter of the decision than other members of the public. A mere intellectual or emotional concern was not enough, and courts tended, under common law, to find that environmental groups had only that kind of interest.

Under the state and Commonwealth legislation, courts have generally taken a relatively liberal view, and courts will look at a number of factors to determine whether an individual or group has standing, including:

  • relevant organisational objects
  • government recognition of a group’s concern through funding or an invitation to participate in projects or conferences
  • a history of involvement in the subject matter through submissions over a substantial period of time
  • the size of the group’s membership
  • community perceptions of the group’s ability to represent the public interest.

A very broad approach was adopted in the case of North Queensland Conservation Council Inc v Executive Director, Queensland Parks and Wildlife Service [2000] QSC 172, where it was considered that standing should be granted unless to do so would involve an abuse of process (i.e. open standing). This approach has not, as yet, received the endorsement of any appellate court.

Special costs orders

Section 49 of the Judicial Review Act enables a party to the proceedings (other than the decision maker) to ask the court for a special costs order: either that another party indemnify the requesting of the order for its costs, or that each party should bear its own costs regardless of the outcome. One advantage for an applicant in making a costs application under s 49 is that it allows the applicant to assess the strength of the claim at an early stage before significant costs are incurred. Failure to secure a costs order may prompt an applicant to reconsider their position.