Australian Society of Ophthalmologists & Anor v Optometry Board of Australia [2013] QSC 350

SUPREME COURT OF QUEENSLAND CITATION: Australian Society of Ophthalmologists & Anor v Optometry Board of Australia [2013] QSC 350 PARTIES: AUSTRALIAN SOCIETY OF OPHTHALMOLOGISTS (first applicant) THE ROYAL AUSTRALIAN AND NEW ZEALAND COLLEGE OF OPHTHALMOLOGISTS ACN 000 644 404 (second applicant) v OPTOMETRY BOARD OF AUSTRALIA (respondent) FILE NO/S: No 5582 of 2013 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 19 December 2013 DELIVERED AT: Brisbane HEARING DATE: 30 August 2013 JUDGE: Douglas J ORDER: The application by the respondent filed 26 August 2013 is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – STANDING TO INSTITUTE PROCEEDINGS – GENERALLY – where the second applicant has had an historical role in setting standards of patient care in ophthalmology – where the first applicant represents the medico-political interests of ophthalmologists in Australia – where the applicants seek to challenge instruments said to be made under the Health Practitioner Regulation National Law – where the challenge is based on the changes being purportedly outside the scope of the power of the Health Practitioner Regulation National Law – where the respondent alleges the applicants have no standing to bring the claim – where the basis for the respondent‟s allegation is that the applicants have no special interest in the subject matter beyond that of any other member of the public – whether the applicants have a special interest in the subject matter – whether the applicants have standing – whether the application should be dismissed -- 1 of 12 -- 2 HEALTH LAW – ADMINISTRATION OF PUBLIC HEALTH SYSTEM – APPLICATION OF LEGISLATION – GENERALLY – where the second applicant has had an historical role in setting standards of patient care in ophthalmology – where the first applicant represents the medico-political interests of ophthalmologists in Australia – where the applicants seek to challenge instruments said to be made under the Health Practitioner Regulation National Law – where the challenge is based on the changes being purportedly outside the scope of the power of the Health Practitioner Regulation National Law – where the respondent alleges the applicants have no standing to bring the claim – where the basis for the respondent‟s allegation is that the applicants have no special interest in the subject matter beyond that of any other member of the public – whether the applicants have a special interest in the subject matter – whether the applicants have standing – whether the application should be dismissed Health Practitioner Regulation National Law Act 2009 (Qld) Judicial Review Act 1991 (Qld) Alliance to Save Hinchinbrook Inc v Cook [2007] 1 Qd R 102; [2006] QSC 84, cited Australian Conservation Foundation Inc v the Commonwealth (1980) 146 CLR 493; [1980] HCA 53, cited Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49, followed Brisbane Airport Corporation Ltd v Wright [2002] FCA 359, cited Central Queensland Speleological Soc Inc v Central Queensland Cement Pty Ltd (No 1) [1989] 2 Qd R 512, cited Davis v Commonwealth of Australia (1986) 68 ALR 18; (1986) 61 ALJR 32; [1986] HCA 66, considered General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, cited Hussein v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2006) 90 ALD 285; [2006] FCA 286, cited Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, cited Lockwood Security Products Pty Ltd v Australian Lock Co Pty Ltd (2005) 216 ALR 652; [2005] FCA 203, cited North Queensland Conservation Council Inc v Executive Director, Queensland Parks and Wildlife Service [2000] QSC 172, considered Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc [2006] SASC 114, cited Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] -- 2 of 12 -- 3 HCA 50, followed Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50; [1995] FCA 1060, cited Save Bell Park Group v Kennedy [2002] QSC 174, cited Save the Ridge Inc v Australian Capital Territory (2004) 182 FLR 155; [2004] ATCSC 13, cited COUNSEL: K A Mellifont QC with A D Scott for the applicants T Sullivan QC with J Fitzgerald for the respondents SOLICITORS: Russo Lawyers for the applicants King + Wood Mallesons for the respondents [1] The applicants, Australian Society of Ophthalmologists (“the Society”) and the Royal Australian and New Zealand College of Ophthalmologists (“the College”), are, respectively, an incorporated association and a company limited by guarantee whose members are ophthalmologists. The Society represents the “medico-political interests” of that branch of the medical profession while the College is responsible for determining standards of care of its members in the practice of ophthalmology. [2] They wish to challenge instruments said to be made under the Health Practitioner Regulation National Law (“the National Law”) as enacted by the Health Practitioner Regulation National Law Act 2009 (Qld) as being outside the scope of the powers in the National Law under which those instruments were purportedly made and therefore of no force or legal effect. The effect of the instruments is said to be to permit optometrists to prescribe anti-glaucoma medication for the treatment of patients, which would previously have been able to be prescribed only by an ophthalmologist who would have been responsible for the patients‟ treatment. [3] The applicants have delivered amended points of claim relevant to their arguments which include allegations of the facts said to establish their standing to bring the application. The respondent seeks to strike out the amended points of claim and the originating application as not disclosing a reasonable cause of action because of the applicants‟ alleged lack of standing. In those circumstances it is incumbent on the respondent to show that the applicants‟ case on standing is so obviously untenable that it cannot succeed.1 [4] My conclusion is that the applicants have shown that they have standing to bring the application with the result that the respondent‟s application should be dismissed. The pleading on standing [5] The applicants‟ pleaded case in respect of their standing is set out in their amended points of claim as follows: “49. The membership of the First Applicant includes 524 practising ophthalmologists who are also members of the Second Applicant. 50. The membership of the Second Applicant includes 788 practising ophthalmologists. 1 See General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129-130. -- 3 of 12 -- 4 51. The Code of Conduct of the Second Applicant requires its members to treat the interests of their patients as paramount. 52. The Second Applicant requires its members to enter an oath in which they must swear or affirm that patients are their first concern. 53. The Code of Conduct of the Second Applicant requires its members to: „...have a responsibility to promote public awareness of eye care issues and to advocate for improvements in the health care system for the benefit of patients... .... [and] Individually and collectively.., engage with government, industry- and the public to promote health and safety... ... [and] recognise a responsibility to seek to alter those laws and regulations that do not serve the best interests of their patients.‟ 54. The First Applicant's object is to represent the medico-political interests of ophthalmologists. 55. Within the First Applicant's object is to carry out the responsibility of its members under the provisions of the Second Applicant's Code of Conduct quoted at paragraph 53 above. 56. Ophthalmology is a specialty of the profession of medicine recognised: a) under section 13 of the National Law; and b) by the Commonwealth Minister for Health and Ageing under the Health Insurance Act 1973 (Cth). 57. Ophthalmology is the specialty of medicine concerned with the diagnosis and management of disorders of the eye and visual system. 58. The diagnosis and treatment of glaucoma is within the specialty of ophthalmology. 59. The patients of the members of the First Applicant include those patients who are treated by them pursuant to the "shared-care framework" described in paragraph 9 above. 60. The "shared-care framework" enables the members of the First Applicant to ensure that any treatment of patients by optometrists under that framework is in the best interests of those patients because under that framework: 61. The combined effect of the Guidelines and the Ministerial approval is that it permits optometrists to treat glaucoma patients without the supervision of members of the First Applicant. 62. The Guidelines and the Ministerial approval therefore permits optometrists to treat glaucoma patients in circumstances where members of the First Applicant cannot ensure that treatment is in the best interests of those patients. 63. The responsibility of the members of the First Applicant in the Second Applicant's Code of Conduct quoted at 53 above -- 4 of 12 -- 5 includes taking all action open to oppose the Guidelines and the Ministerial approval. 64. These proceedings are within the scope of the action described at paragraph 63 above. … 67. Fellowship with the Second Applicant is recognised by the Medical Board of Australia and the Commonwealth Minister for Health and Ageing as a qualification to attain the specialty of ophthalmology. 68. By its articles of association, the objects of the Second Applicant are, inter alia, to: „...promote the study of the science and practice of ophthalmology and to promote investigation and research in ophthalmology and related sciences and branches of medicine and to bring together ophthalmologists for their common benefit and for scientific discussions and to disseminate knowledge of the principles and practice of ophthalmology by such means as may be thought fit... ...consider all questions affecting the interests of the [Second Applicant] and to promote or oppose any legislative or other measures affecting such matters or concerned with ophthalmology or related sciences or branches of medicine or as are related to the interests of the [Second Applicant].‟ 69. By clause 44(a) of the articles of association of the Second Applicant, the Board of the Second Applicant is required to „further the objects of the [Second Applicant] in such a way as to benefit persons engaged in the training or practice of ophthalmology whether members of the College or not or so as to benefit the general public‟. 70. In pursuance of the objects set out at paragraphs 68 and 69 above, the Second Applicant is responsible for determining standards of care by its members in the practice of ophthalmology in the following ways: a) by clause 7 of its articles of association, it determines the education and training requirements that must be met for admission as a member of the Second Applicant; b) pursuant to a standard made by the Medical Board of Australia under the National Law, it is responsible for determining the continuing professional development requirements that must be met by its members; c) by clause 98(c) of its articles of association, it can discipline a member, including by way of expulsion, for „a repeated failure to reach reasonable professional standards of competence and diligence‟; d) pursuant to its Code of Conduct which sets out standards of care that must be adhered to by its members; and -- 5 of 12 -- 6 e) pursuant to its Guidelines described at paragraph 7 above, it sets standards of care that must be afforded by ophthalmologists in respect of patients treated under the „shared-care framework‟. 71. Any treatment of a patient under the „share-care (sic) framework‟ is subject to these standards because: a) any initial diagnosis by an optometrist of a patient with glaucoma must be confirmed by an ophthalmologist; and b) any treatment of the patient must be in accordance with a treatment plan determined by the ophthalmologist. 72. The combined effect of the Guidelines and the Ministerial approval is that it permits optometrists to treat glaucoma patients in circumstances where that treatment is not subject to the standards of the Second Applicant described in paragraph 70 above.” Background [6] The applicants‟ standing to bring the application is opposed by the respondent. Optometry Board of Australia (“the Board”), essentially on the basis that they have no special interest in the subject matter of the application beyond that of any other member of the public.2 Their position as professional bodies of ophthalmologists is said not to provide that standing for the reasons expressed by Gibbs J in Australian Conservation Foundation Inc v the Commonwealth3 that: “The fact that the Foundation is incorporated with particular objects does not strengthen its claim to standing. A natural person does not acquire standing simply by reason of the fact that he holds certain beliefs and wishes to translate them into action, and a body corporate formed to advance the same beliefs is in no stronger position. If it is the fact that some members of the Foundation have a special interest - and it is most unlikely that any would have a special interest to challenge the exchange control transaction - it would not follow that the Foundation has locus standi, for a corporation does not acquire standing because some of its members possess it …” [7] No individual ophthalmologist has elected to be an applicant in this proceeding. Ms Melllifont QC for the applicants made it clear that the focus of the applicants‟ concerns was on the standards of professional care to be applied to patients rather than their individual members‟ financial interests. [8] The instruments challenged are an approval “purportedly made by the Australian Health Workforce Ministerial Council on 31 March 2010 under s 14 of the National Law for the Respondent to endorse the registrations of optometrists in respect of medicines described therein” and “Guidelines purportedly made by the respondent 2 Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, 526; see also Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, 35-36 and Central Queensland Speleological Soc Inc v Central Queensland Cement Pty Ltd (No 1) [1989] 2 Qd R 512, 530-532, 533-535. 3 (1980) 146 CLR 493, 531; see also Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50, 64, 67, 69, 80-82. -- 6 of 12 -- 7 under s 39 of the national law called the „Guidelines for Use of Scheduled Medicines‟ (undated)”. [9] Since the mid 1990s optometrists have become involved in the treatment of glaucoma pursuant to a “shared care framework” which required confirmation of an optometrist‟s diagnosis of glaucoma by an ophthalmologist who would then initiate treatment and decide on a management plan. That shared care framework was adopted in guidelines made by the Board in 2010 and in similar guidelines made by the College. The challenged instruments changed the Board‟s guidelines and the applicants will contend, if they have standing, that they are invalid. In that context they argue that, in determining standing, regard must be had to the public interest in the observance by statutory authorities of the limitations upon their activities which the legislature has imposed.4 Is the application premature? [10] The applicants argue that it is generally inappropriate to dismiss judicial review proceedings on the ground of standing, relying on this passage from the reasons of Lord Wilberforce in Inland Revenue Commissioners v National Federation of Self- Employed and Small Businesses Ltd:5 “There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application: then it would be quite correct at the threshold to refuse him leave to apply. The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications. But in other cases this will not be so. In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and to the breach of those said to have been committed. In other words, the question of sufficient interest can not, in such cases, be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context.” [11] A similar approach was adopted by Gibbs CJ sitting as a single judge of the High Court in Davis v Commonwealth of Australia6 where he discussed an argument for the applicants who were Aborigines wishing to challenge the validity of the Australian Bicentennial Authority Act 1980 (Cth). They claimed standing on three separate grounds: a direct pecuniary interest in certain clothing bearing the name of the Bicentennial Authority, a special interest in the subject matter of the action by virtue of their being Aborigines and their status as taxpayers. When discussing the asserted strong belief on the part of the plaintiffs that the Act was offensive and undesirable as well as unconstitutional, his Honour said: “However it was submitted on behalf of the plaintiffs that as Aboriginals, descendants of the indigenous inhabitants of this country, they have a special interest in objecting to a statute which is designed to assist the celebration of the settlement and occupation of 4 See Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 267 at [50]. 5 [1982] AC 617, 630. 6 (1986) 68 ALR 18, 23-24; [1986] HCA 66; (1986) 61 ALJR 32. -- 7 of 12 -- 8 Australia by peoples who were not indigenous to this continent. It was further submitted that this interest goes beyond a mere emotional or intellectual concern, and that the cultural and civic interests of the plaintiffs are affected. As at present advised, although I agree that the plaintiffs, as Aboriginals, are members of a class which may have a special interest in challenging the validity of the Act, I find difficulty in accepting that the interest is other than emotional or intellectual. Having regard to the principles which govern applications of this kind it is not necessary for me to express any concluded view whether the plaintiffs have an interest sufficient to give them standing; it is enough to say that it seems to me that the plaintiffs' argument cannot be dismissed as frivolous or hopeless - opinions may differ upon its acceptability and it is not plain and beyond debate that it must fail. It would therefore be wrong to strike out paras 6 and 41 of the statement of claim.” [12] As Mr Sullivan QC pointed out, however, the appeal in Australian Conservation Foundation Inc v The Commonwealth7 was from a summary determination striking out the appellant‟s case because it lacked standing, so the issue can certainly be determined at this stage in a proper case. In such a case it may often be appropriate to take the point at an early stage to save costs.8 Where the case is arguable, however, it may be preferable to determine it at the trial.9 Largely because of my conclusion that the applicants have standing, my view is that, in this case, it would have been preferable to deal with the issue at trial. “Special interest” [13] Decisions such as Alliance to Save Hinchinbrook Inc v Cook,10 Save Bell Park Group v Kennedy,11 and North Queensland Conservation Council Inc v Executive Director, Queensland Parks and Wildlife Service,12 all suggest that these applicants would be entitled to be treated as “persons aggrieved” for the purpose of proceedings under the Judicial Review Act 1991 (Qld).13 But that test may not be appropriate in this case. A person aggrieved may be in a wider category than persons whose interests are, for example, affected by a decision.14 [14] Here the applicants need to show that they have a special interest in the subject matter of the action greater than that of an ordinary member of the public, a test that Mr Sullivan QC submitted was narrower again. Nonetheless, it is a flexible test and 7 (1980) 146 CLR 493. 8 Central Queensland Speleological Soc Inc v Central Queensland Cement Pty Ltd (No 1) [1989] 2 Qd R 512, 530-531, 534-535; Brisbane Airport Corporation Ltd v Wright [2002] FCA 359 at [2]. 9 Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, 552; Hussein v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2006) 90 ALD 285, 295 at [50-51]. 10 [2007] 1 Qd R 102, 106 at [21] 11 [2002] QSC 174 at [14]. 12 [2000] QSC 172 at [9]-[13]. 13 Not that such decisions have escaped criticism; see Save the Ridge Inc v Australian Capital Territory (2004) 182 FLR 155, 160-161 at [18] per Crispin J. 14 See Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc [2006] SASC 114 at [16], [28] and Lockwood Security Products Pty Ltd v Australian Lock Co Pty Ltd (2005) 216 ALR 652, 657; [2005] FCA 203 at [29]. -- 8 of 12 -- 9 has been described in the High Court in Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd in these terms:15 “[46] In the joint judgment of Brennan, Dawson, Toohey, Gaudron and McHugh JJ in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), reference was made to the requirement that the plaintiff have „a special interest in the subject matter of the action‟. Their Honours stated that the rule is flexible and continued that „the nature and subject matter of the litigation will dictate what amounts to a special interest‟. This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law. That would be the consequence of the adoption of the approach taken by the primary judge in this litigation. It will be recalled that, in Onus v Alcoa of Australia Ltd, Brennan J warned that to deny standing may be to „deny to an important category of modern public statutory duties an effective procedure for curial enforcement‟. [47] In Australian Conservation Foundation v The Commonwealth Aickin J suggested a course which in the present case would involve asking whether the interest of the respondents in the observance by the appellants of the prohibition in s 11 (1) of the Funeral Funds Act and of the limitations upon their statutory powers is sufficiently related to the relief claimed. His Honour said: „The “interest” of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed ... [T]he plaintiff‟s interest should be one related to the relief claimed in the statement of claim.‟” [15] The decision in Onus v Alcoa of Australia Ltd16, where a group of Aborigines from a particular tribe wished to restrain a breach of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic), made it clear that a special interest is not limited to a pecuniary interest. Gibbs CJ said the rule requiring the applicant to have a special interest in the subject matter of the action was obviously a flexible one since “what is a sufficient interest will vary according to the nature of the subject matter of the litigation.”17 His Honour went on to say:18 “The position of a small community of aboriginal people of a particular group living in a particular area which that group has traditionally occupied, and which claims an interest in relics of their ancestors found in that area, is very different indeed from that of a diverse group of white Australians associated by some common 15 Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 265-266 at [46]-[47] by Gaudron, Gummow and Kirby JJ (footnotes omitted). 16 (1981) 149 CLR 27 17 (1981) 149 CLR 27, 36. 18 (1981) 149 CLR 27, 37. -- 9 of 12 -- 10 opinion on a matter of social policy which might equally concern any other Australian.” [16] Stephen J said:19 “[T]he distinction between this case and the A.C.F. Case is not to be found in any ready rule of thumb, capable of mechanical application; the criterion of „special interest‟ supplies no such rule. As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff‟s relationship to that subject matter. The present appellants are members of a small community of aboriginal people very long associated with the Portland area; the endangered relics are relics of their ancestors' occupation of that area and possess for their community great cultural and spiritual significance. While Europeans may have cultural difficulty in fully comprehending that significance, the importance of the relics to the appellants and their intimate relationship to the relics readily finds curial acceptance. It is to be distinguished, I think, and will be perceived by courts as different in degree, both in terms of weight and, in particular, in terms of proximity, from that concern which a body of conservationists, however sincere, feels for the environment and its protection. Courts necessarily reflect community values and beliefs, according greater weight to, and perceiving a closer proximity to a plaintiff in the case of, some subject matters than others. The outcome of doing so, however rationalized, will, when no tangible proprietary or possessory rights are in question, tend to be determinative of whether or not such a special interest exists as will be found standing to sue.” [17] Brennan J said:20 “A special interest in the subject matter of an action being neither a legal nor equitable right, nor a proprietary or pecuniary interest, will ordinarily be found to arise from modem legislation enacted to protect or enhance non-material interests - interests in the environment, in historical heritage, in culture. Where such a statute imposes a public duty to protect or enhance a non-material interest a breach of the duty is apt to affect a non-material interest, and it would be vain to search for proprietary or pecuniary damage suffered by a plaintiff. A plaintiff in such a case, though he may be able to show a special interest in what the statute seeks to protect or enhance, would be unable to show a private right or to prove that he has suffered proprietary or pecuniary damage. To deny standing would deny to an important category of modem public statutory duties an effective procedure for curial enforcement.” Submissions [18] The argument for the applicants is that, until recently, standards of patient safety in the treatment of glaucoma have primarily been determined by the second applicant. 19 (1981) 149 CLR 27, 42. 20 (1981) 149 CLR 27, 73. -- 10 of 12 -- 11 The shared care arrangements had ensured that decisions as to the treatment of glaucoma by optometrists have been made by ophthalmologists. Those ophthalmologists are bound by the standards of patient safety determined by the second applicant. The respondent‟s abandonment of the shared care arrangement allows optometrists to treat patients with glaucoma without the supervision of ophthalmologists, which deprives the second applicant of its capacity to determine the standards of care of those patients and, accordingly, gives it a special interest in challenging the instruments. [19] Similarly, in respect of the first applicant, it was submitted that the “medico- political interests of ophthalmologists in Australia” include the obligation of ophthalmologists to individually and collectively advocate for patients‟ safety which includes those patients treated pursuant to the shared care framework. The conclusion urged was that their obligations include opposition to the attempt by the respondent to permit optometrists to treat patients with glaucoma outside of the shared care framework which again led to the applicants having a special interest in challenging the instruments. [20] Ms Mellifont QC submitted that what the applicants brought to the subject matter of this litigation was an informed concern based on information, knowledge and experience which went beyond that of general members of the public. Each organisation had a special interest in patient safety in this area of ophthalmology greater than that of a member of the general public. [21] The Board argues that the fact that the responsibilities for the determination of these standards of treatment by optometrists now rest with it and the Medical Board under the relevant legislation means that the applicants do not have a special interest in seeking to determine the validity of the instruments the subject of this application. The appropriate contradictor, in Mr Sullivan‟s submission, was the Medical Board in its role as the setter of standards for all medical specialities. There was no need for a role to be accorded to the applicants to challenge the legality of the instruments.21 Conclusion and orders [22] The evidence establishes to my satisfaction that the applicants‟ roles in setting and advocating standards of patient care for the treatment of glaucoma by ophthalmologists over many years gives them standing to challenge the validity of instruments which, although directed to the conduct of optometrists, have the effect of removing ophthalmologists from their previous role in the process. The applicants have an interest in the treatment of glaucoma which may be “non- material” but which is very different indeed from that of a diverse group of ordinary Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian – to adapt the language of Gibbs CJ in Onus v Alcoa of Australia Ltd.22 [23] Their functions as organisations, historical roles in the regulation of and advocacy for standards of patient care and the specialised knowledge derived from their membership set them quite apart from other members of the public. In my view 21 Seeking to distinguish North Queensland Conservation Council Inc v Executive Director, Queensland Parks and Wildlife Service [2000] QSC 172 at [35]. 22 (1981) 149 CLR 27, 37. -- 11 of 12 -- 12 their standing is clear and certainly not so obviously untenable that their application should be dismissed at this stage. [24] Accordingly, the application by the respondent filed 26 August 2013 is dismissed. I shall hear the parties further as to costs. -- 12 of 12 --