Truth, Justice and the Australian Way About 'Open Standing': Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd
6 Pages Posted: 6 Jun 2008
Date Written: June 6, 2008
In 1998, the constitutionality of the 'open standing' provisions contained in the Trade Practices Act 1974 (Cth) was directly challenged in the High Court for the first time since their enactment.
This issue came to a head in 1998, when a community group, Truth About Motorways (TAM), brought suit under the TPA against Macquarie Infrastructure Investment Management Ltd (MIIM). TAM was concerned about the publication and distribution of a prospectus produced by MIIM in order to attract investor for units in an investment trust proposing to invest in the construction and private ownership of a toll road in Sydney. TAM alleged that claims made in the prospectus about anticipated volumes of traffic on the road constituted misleading conduct within the meaning of section 52 of the TPA. Significantly, TAM neither claimed a special interest in the subject matter of the dispute nor that it had suffered any loss or damage on account of MIIM's conduct. It relied instead exclusively on the open standing provisions contained in sections 80 and 163A of the TPA. MIIM filed a defence pleading that TAM had no standing to maintain an action against it. MIIM argued that so far as §§ 80 and 163A of the TPA purported to confer standing on TAM they were constitutionally invalid.
In March 2000, the Australian High Court considered MIIM's constitutional claim. The detail of MIIM's argument was succinctly summarized by Chief Justice Gleeson and Justice McHugh in a joint judgment.
Keywords: Environmental Law, Constitutional Law, Australia
JEL Classification: K33
Suggested Citation: Suggested Citation