Standing and involvement in legal proceedings

What is standing?

Standing is the legal ability for someone to commence or be involved in legal proceedings.

Do I need standing?

In order to appear in court or to take part in a proceeding, a person must have standing. If you do not have standing, you will not be able to commence or continue legal action.

Who has standing?

The test for standing is sometimes defined by relevant legislation.

However, if there is no legislation, the general rule in Australia is that for a person to have standing, their private rights and interests are (or will be) affected by the matter, or they have a “special interest” in the subject matter.

In most cases, standing will not be an issue. For example, in personal injury cases, the person who has suffered injury is entitled to bring an action. In a case of trespass to rented property, the tenant (not the landlord) has that right to sue as it is the tenant’s right to possession of the property that is affected. A person whose private interests have been (or will be) adversely affected by an act or decision of a public body has standing to seek judicial review.

However, if you are seeking to enforce a public right, that is, a right conferred on the public at large, the issue of standing may be more difficult to determine and may be contested by the other party. For example, it may be difficult for you to commence action against a factory which is polluting a neighbourhood if you are not a member of that neighbourhood or directly affected by the pollution. In these cases, you need to show a “special interest” in the subject matter, that is, your interest in the subject matter of the action is beyond that of any other member of the public. For example, a community group representing the interests of the neighbourhood may be able to demonstrate special interest.

The courts have said that the rules of standing need to be applied flexibly and have been prepared to apply the “special interest” test liberally.

Determining questions of standing

Standing may either be determined as a preliminary issue in the court proceedings or as part of the judge’s final determination of the merits of the case. When the court will determine standing will depend on the particular circumstances of the case – cost and convenience may favour standing being determined as a preliminary issue.

Other options

Litigation guardians

  • Where a person does not have the capacity to bring an action either because of mental or physical incapacity or because the person is a minor, the action may be brought on his or her behalf by a litigation guardian.
  • A litigation guardian may be appointed by the court or by the Queensland Civil and Administrative Tribunal.

Attorney-General’s Fiat

  • Where a person does not have standing to enforce a public right, they can request that the Attorney grant a fiat, or consent, that the action be brought in the Attorney-General’s name.
  • See LawRight’s factsheet on Attorney-General’s Fiat for when this is granted.

Amicus curiae

  • A person may appear as an amicus curiae, or “friend of the court”, where they can provide submissions on law or facts which the court would not otherwise receive.
  • A party to a proceeding may seek leave to have an amicus curiae appointed.
  • An amicus curiae is most likely to be appointed where a party is unwilling or unable to protect their own interests and where the case involves an important legal question for the general community or disadvantaged people.
  • Examples of people or bodies acting as amicus curiae include the Attorney-General, Human Rights Commissioners, advocacy groups and barristers and solicitors.

Intervener

  • Where a person or organisation is not a party to a proceeding but will either be bound by the decision or their legal interests will be substantially affected, they can apply to the court as an intervener.
  • The Judge or Magistrate has the discretion to determine whether or not to allow a person or organisation to intervene.
  • If successful, the intervener will become a party to the proceedings and will have all the rights and obligations of the original parties.

Class Actions or representative proceedings

  • Legal action may be commenced by one or more persons on behalf of themselves and others who have the same interest in the subject matter of the proceedings.
  • See LawRight’s factsheet on Class actions for more information.