Animal Liberation v Conservator of Flora and Fauna (Administrative Review)

Case •

[2009] ACAT 9

•

14 May 2009

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

Animal Liberation v Conservator of Flora and Fauna (Administrative Review) [2009] ACAT 9

AT 47 of 2009

Catchwords:             ADMINISTRATIVE REVIEW – review of decision to issue licence to kill kangaroos – interim orders - application for stay – operation of legislative provisions – relevant factors

ACT Civil and Administrative Tribunal Act 2007 (ACT), ss 22Q, 53, 56

Tribunal:Ms Linda Crebbin

General President

Date of Decision:      14 May 2009
Date of Ex Tempore Reason: 14 May 2009

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          NO: AT 47 of 2009

RE:     ANIMAL LIBERATION

Applicant

AND:CONSERVATOR OF FLORA AND FAUNA

Respondent

AND:DEPARTMENT OF DEFENCE

Party Joined

DECISION

Tribunal:  Ms Linda Crebbin, General President

Date of Order:  15 May 2009

Decision:

The Tribunal orders that:

  1. The Department of Defence be joined as a party to the proceedings.

  2. The operation of licence LK2009145 granted to the Department of Defence on 9 April 2009 is suspended until further order.

  3. The final hearing of the application is expedited.

    4.   The respondent and the party joined are required by noon on 22 May 2009 to give each other party and the Tribunal:

    a)   a statement of facts and contentions;

    b)   the statement of any witness on whose evidence the respondent, and the party joined, relies; and

    c)any other material intended to be relied upon by the respondent and the party joined at the hearing.

    5.   The applicant is required by noon on 29 May 2009 to give each other party and the Tribunal:

    a)   a statement of facts and contentions;

    b)   the statement of any witness on whose evidence the applicant relies; and

    c)any other material intended to be relied upon by the applicant at the hearing.

  4. The matter is to be listed for hearing commencing at 10.30am on Tuesday 2nd June 2009 and continuing as needed on the 3rd and 5th June 2009.

It is noted that:

For the purpose of compliance with order 4, documents should be sent to the applicant at Suite 904, Level 9, 32 York St, Sydney NSW 2000.

…………………………….

General President

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          NO: AT 47 of 2009

RE:     ANIMAL LIBERATION

Applicant

AND:CONSERVATOR OF FLORA AND FAUNA

Respondent

AND:DEPARTMENT OF DEFENCE

Party Joined

EX TEMPORE REASONS FOR DECISION

  1. These reasons relate to the Tribunal’s decision to suspend or “stay” the operation of licence LK2009145 which was granted by the first respondent to the second respondent on 9 April 2009. The application to stay the licence is made pursuant to section 53 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the Act).
  2. Although headed “Interim Orders”, s53 gives the Tribunal power to grant interlocutory injunctive relief, and it is determinative of the Tribunal’s power in relation to such applications. It could be tempting to look to s56 of the Act with the very broad powers that it contains to enable the Tribunal to make whatever order it wishes in any particular case, and to assume that the broad power could be used in a case such as this instead of s53. However, the more prescriptive s53 is the provision that the Tribunal needs to look at for this purpose, and I will encourage the legislature to consider renaming the section to make it clear that it is prescriptive of the Tribunal’s powers in relation to such orders.
  3. The power to grant interlocutory injunctive relief is a significant power. It must be exercised cautiously.  I am very conscious of Dr Jarvis’s suggestion that it would be inappropriate of this Tribunal to be tempted into using this first occasion of looking at how the Tribunal should exercise that power as one in which some guiding principles should be made. I agree that we are too young a body to do that. 
  4. It is surprising that s53 provides the Tribunal with a powerful tool that is somewhat different, on the face of it at least, from similar powers available for other bodies. It provides as follows:

Interim orders

(1)This section applies if, before the hearing of an application—

(a)    a party to the application applies to the tribunal for an order under this section; and

(b)    the tribunal is satisfied that, if an order under this section were not made before the hearing of the application, the party applying for the order would be disadvantaged or suffer harm.

(2)The tribunal may make any order (an interim order) it considers appropriate to protect the position of the party that applied for the order.

  1. The Tribunal’s task is to first consider whether the applicant for the order would be disadvantaged or would suffer harm if the order sought was not granted, and then if so satisfied, to consider whether an order should be made to protect that party’s position.  The section does not give specific guidance about the matters the tribunal should consider when exercising the discretion to make an order.
  2. It seems appropriate that the tribunal should draw on the common law jurisprudence relating to stay applications. It is, after all, the framework in which decision-makers have operated for a long time. The factors that the Tribunal should consider in making a decision about what, if any, order is appropriate to make if it is first satisfied that the requirements of s53(1)(b) are met, include:
    • the prospects of success of the applicant;
    • the balance of convenience to the parties; and
    • the damage or harm that might be caused to any other party if the relief sought is granted. 

The last factor would normally be formulated by referring to the harm or damage that might be caused to any party if the relief is granted or refused, but s53(1)(b) picks up that component of the factor in relation to the applicant for the order.

  1. The burden of proof to be adopted when applying s53 is clearly a civil burden; the Tribunal needs to be satisfied on the balance of probabilities, of the matters in s53(1)(b) before making an order. However, given the significant impact of interlocutory injunctive relief, the standard referred to as the Briginshaw standard should apply in these matters.

Would the Applicant be disadvantaged or suffer harm?
Prospects of success
Balance of convenience

  1. I found this consideration a very difficult one.  I accept Dr Jarvis’s approach, and that of Mr Roser, that “harm” requires that some direct and real injury, actual damage or loss of some form, be demonstrated by the applicant. In this case, I do not believe that the applicant can demonstrate that it will suffer harm if the order sought is not granted. Disadvantage, however, is another thing altogether.
  2. There is not much in the way of judicial consideration or jurisprudence in relation to the word “disadvantage”.  In authorities relating to interlocutory injunctive relief generally, “disadvantage” does not appear amongst the words commonly used to describe what the decision-maker is required to consider. Dr Jarvis’s very helpful reference to the definition of disadvantage in the Oxford Concise Dictionary is a reasonable approach in the absence of any clear authority. Disadvantage is defined first, as “lack of advantage, unfavourable position or circumstance” and secondly, as “loss or injury”. 
  3. If the meaning of the word “disadvantage” is restricted to “loss or injury”, it is difficult to see what is added to s53(1)(b) when the word “harm” is used beside it. “Disadvantage” must mean something different from “harm”.
  4. In this case, I have found that s22Q(2) of the Act gives the applicant standing to bring these proceedings. The applicant does not have a personal or commercial interest in the proceedings. It has standing because its objects and purposes relate to the subject matter of the proceedings. If a narrow approach is taken to the interpretation of “disadvantage”, it will almost inevitably be the case that a body, the objects and purposes of which relate to a matter the subject of a decision sufficient to give it standing, will struggle to show that it would suffer the requisite harm or disadvantage to allow a stay order to be made in a particular case. If it is accepted that all parties coming before the Tribunal should be able to access the full range of the Tribunal’s powers, s53(1)(b) should not be interpreted narrowly.
  5. For these reasons, I am inclined to think that, rather than loss or injury, the disadvantage referred to in s53 should be described as a lack of advantage, or an unfavourable position or circumstance.
  6. The applicant is unable to say that it will suffer harm  - any actual loss or damage - if a stay is not granted. However, I am satisfied that the applicant will suffer disadvantage. The disadvantage relates to the effectiveness of the application that it has brought.  Unless the subject matter of the application - in this case, kangaroos - is preserved while the application is considered, the applicant will not be able to meet the aims it sets out to achieve.
  7. Dr Jarvis put very strongly that the application would still be effective if it proceeded without a stay, because the applicant’s aim should be seen as ensuring rigorous and appropriate decision-making conducted on a proper basis by the respondent. Indeed, Dr Caulfield, emphasised that same issue by drawing attention to the objects in s6(e) and (f) of the Act in his closing submissions.  I don’t accept Dr Jarvis’ submission. It is clear that the aim of this application is to have the decision to issue a licence to the second respondent set aside, so as to stop the culling of kangaroos. If the culling is not suspended while the application is determined, the purpose of the application will be defeated.
  8. I am therefore satisfied that this applicant will suffer disadvantage if a stay order is not made. That takes me to consider what order is appropriate in the circumstances under s53(2) of the Act.
  1. I am unable in this case to really form any view as to the prospects of success of the application.  That is a complex question and it would take a lot more than the time available to get to a point where I could even form a prima facie view on the prospects of success.  Dr Caulfield did, in his case, point to inconsistencies in some of the documentation that has been used by the conservator to support its decision, but we simply do not know enough about how that decision was reached and what was taken into consideration, to look at the issue of prospects in any sensible way. I do not think that that, by itself, means that an order should not be made.
  1. The issue of balance of convenience is difficult to divorce from the issue of what damage others might suffer.  The respondent did not point to any damage that it might suffer if the stay was granted.  It is the licensing body in relation to land that it does not occupy.  Dr Jarvis drew the Tribunal’s attention to potential damage to threatened species if the stay was granted, but I do not know that there was sufficient evidence for me to be satisfied that there would be damage to threatened species if there was a delay in the operation of the licence for a short period of time.
  2. In relation to the joined party, the Department of Defence, we had uncontested evidence, from Major-General Cossen about the significant financial damage that the department would suffer if the planned cull was delayed.  Also, although it was not presented in this way, her evidence demonstrated that the Department of Defence’s training program could be damaged by a delay..
  3. I am very conscious of the significance and the importance of considering financial loss to a party.  I cannot be clearly satisfied that the loss would involve additional costs caused by the stay. I took the Major General’s evidence to be that there are costs that are currently being incurred, and they will continue to be incurred whether or not a cull continues. The Defence Department would be paying for things to be done that are not done, or are not able to be done because of the stay of the licence. Also, she said that a further licence might be needed next year, if the cull could not be completed in the time available. Although she did not say so, I assume that there could be some costs incurred next year if the objectives required for this year cannot be achieved under this licence. 
  4. I am not satisfied that that is sufficient concern for me to find that a stay should not be granted, and although I think it is a fine balance I am satisfied that the balance of convenience favours the applicant and the staying of the licence pending the determination of the  primary application.
  5. The order of the Tribunal is therefore to grant the application for a stay. The decision of the Conservator of flora and fauna made on 9 April 2009 to issue licence LK2009145 is stayed until further order.

……………………..

Ms Linda Crebbin
General President

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      

APPLICANT:                
RESPONDENT:            

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      

SOLICITORS:  APPLICANT:          

RESPONDENT:      

OTHER:  APPLICANT:          

RESPONDENT:      

TRIBUNAL MEMBER:

DATE/S OF HEARING:  PLACE: CANBERRA  

DATE/S OF DECISION:  PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS:

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