Binginwarri Friends of the Jack and Albert River Catchment Area Inc v VicForests
[2021] VSC 824
•13 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2021 02863
| Binginwarri Friends of the Jack and Albert River Catchment Area Inc | Plaintiff |
| v | |
| VicForests | Defendant |
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JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 November 2021 |
DATE OF JUDGMENT: | 13 December 2021 |
CASE MAY BE CITED AS: | Binginwarri Friends of the Jack and Albert River Catchment Area Inc v VicForests |
MEDIUM NEUTRAL CITATION: | [2021] VSC 824 |
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PRACTICE AND PROCEDURE – Preliminary issue – Standing – Whether plaintiff has standing to bring claim in relation to alleged unlawful logging operations – Whether plaintiff has sufficient interest in the subject matter of the action such as to support standing – Where plaintiff incorporated six days prior to commencing proceeding – Where standing to bring proceeding determined as a preliminary question – Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 and Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 applied – Standing not established – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Korman with Dr Kylie Weston-Scheuber | Oakwood Legal |
| For the Defendant | Mr N Hutley SC with Mr E Nekvapil | Johnson Winter & Slattery |
HIS HONOUR:
By this proceeding, commenced by writ, the plaintiff, an incorporated association, seeks declaratory and injunctive relief in respect of forestry operations conducted by the defendant, VicForests, that it contends are unlawful. These reasons respond to a summons issued by the defendant that seeks to deal with the question of the plaintiff’s standing to bring the proceeding as a preliminary issue. The defendant also seeks security for costs.
For the reasons that follow, I am persuaded that it is appropriate to determine standing as a preliminary issue. On the assumption that I would proceed in that fashion, I heard full argument on standing and am in a position to determine the question now. In my opinion, the plaintiff does not have standing to bring the proceeding. For that reason, the proceeding cannot be maintained. It is unnecessary to deal with the application for security for costs.
A separate question?
The first issue is whether, as the defendant contends, the question of standing should be determined as a preliminary question in advance of the trial of the proceeding. In my view, it is appropriate to adopt that course. Whether it is appropriate to consider a separate question depends on the particular circumstances of the case.[1] As the Court of Appeal observed,[2] differing views can be taken on the question of when standing should be determined. This is illustrated by the observations of the High Court in Australian Conservation Foundation Inc v The Commonwealth[3] and Onus v Alcoa of Australia Ltd.[4]
[1]Kinglake Friends of the Forest Inc v VicForests (No 3) [2020] VSC 777; Warburton Environment Incorporated v VicForests (No 2) [2020] VSC 738.
[2]VicForests v Kinglake Friends of the Forest [2021] VSCA 195.
[3](1980) 146 CLR 493; [1980] HCA 53 (‘ACF’).
[4](1981) 149 CLR 27; [1981] HCA 50 (‘Onus’).
In many cases, any saving in time and cost will be illusory and it is often not possible or it is undesirable to determine standing as a preliminary issue.[5] In this case, a preliminary question is appropriate and consistent with proper case management. The relevant facts are not in dispute – most of them are the subject of an agreed statement of facts. To the extent that inferences are to be drawn from the agreed facts or reference is necessary to other facts in the affidavit material those facts are not, for present purposes, controversial.
[5]Loielo v Giles (Ruling No 2) [2020] VSC 723, [10] (Ginnane J).
The issue of standing is sufficiently discrete from the issues that would be determined at trial, and given that an injunction in favour of the plaintiff is in place, it is convenient and in the interests of justice that its entitlement to bring the proceeding is determined at an early stage. Having regard to the allegations in the statement of claim, it is likely that any trial would be of some complexity and involve expert evidence and the consideration of a detailed regulatory regime. In the event that the Court finds that the plaintiff does not have standing, the issue will be dispositive of the proceeding as a whole.
This course was not opposed by the plaintiff. Accordingly, I shall order that the question of standing be determined as a preliminary question and will proceed immediately to determine the question.
Agreed facts
On 2 August 2021, the plaintiff was incorporated under the Associations Incorporation Reform Act 2012 (‘the Act’), and its certificate of incorporation is the document exhibited as exhibit ‘MM-1’ to the affidavit of Marian Macdonald affirmed 11 August 2021 and filed in these proceedings (‘Macdonald affidavit’).
On 5 August 2021, the plaintiff held its inaugural meeting. A redacted version of the minutes of the plaintiff’s inaugural meeting is exhibit ‘MM-2’ to the Macdonald affidavit.
The plaintiff’s object, adopted on 5 August 2021, is to:
Preserve the Nooramunga and Corner Inlet wetlands, by protecting, maintaining and improving the natural environment, native flora and fauna, and biodiversity of the Jack and Albert River catchment area.
The members of the plaintiff, at the time proceedings were commenced on 11 August 2021, and as at the date of the statement of agreed facts, are:
(a) Marian Macdonald;
(b) Kaye Proudley;
(c) Cathy Trembath;
(d) Leon Trembath;
(e) Samantha Marks;
(f) Jenny Davies; and
(g) Kevin Heggen.
(‘members of Binginwarri’).
Libby Heggen and Melinda Darer were members of the plaintiff at the time of its inaugural meeting but are no longer members, having resigned on 9 August 2021.
The Jack and Albert River Restoration Project
The Jack and Albert River Restoration (‘JARR’) Project, a landscape-scale project commenced in 2006. The JARR Project’s objectives were to improve the ecology of the area of land within the black boundary in the map exhibited as exhibit MM-3 to the Macdonald affidavit (the Jack and Albert River catchment area) and to enhance the resilience, biodiversity and environmental health of the Jack and Albert River system.
The boundaries of the Jack and Albert River catchment area were determined for purposes of the JARR Project by Paul Martin, Landcare Project Applicant for the JARR Project.
Each member of the plaintiff has landholdings in the Jack and Albert River catchment area.
Funds were brought into the JARR Project for on-ground work between 2008 and 2014 from Landcare network’s funding. Work programs were and still are carried out by various organisations, including Greening Australia, Trust for Nature, West Gippsland Catchment Management Authority, Wellington Shire, and Hancock Plantations.
The YYLN
The Yarram Yarram Landcare Network (‘YYLN’) was established in 1995 and covers an area including the Jack and Albert River catchment area. One of the objectives of the YYLN is to work to protect, enhance and/or connect biodiversity throughout the region. In the 2019-2020 financial year, projects carried out in the Jack and Albert River catchment area included:
(a) removal of willow trees along a 1.3 kilometre section of Golden Creek, fencing and revegetating the areas;
(b) provision of an on-ground project officer for the JARR Project;
(c) protection of the Jack, Albert and Tarra river catchments from woody weeds by control of blackberry, box thorn and gorse at 50 landowners’ properties;
(d) removal of willows along Reedy Creek and fencing and revegetating the area to create new habitats for Martin’s Toadlet; and
(e) completion of water monitoring at six sites in the Jack and Albert River catchment area, completing in-field and laboratory-based analysis to inform future on-ground works.[6]
[6]Further activities carried out under the auspices of the YYLN are set out in exhibits MM-5 and MM-6 to the Macdonald affidavit.
The Binginwarri Landcare sub-group
The Binginwarri Landcare sub-group, established in 1987, ceased operations in 2006, and recommenced operations in 2010. It is a sub-group of the YYLN and is a voluntary organisation run by volunteers to undertake action and activities to maintain and protect the land and native flora in the region to enable it to be used by people and animals. Its activities include tree planting, bird and other fauna observation, weed and pest control, plant identification workshops, and sharing of knowledge about the area so it can be maintained and enjoyed by all.
In relation to the members of Binginwarri:
(a) Marian Macdonald:
(i) has a landholding, which until July 2020 was adjacent to the Alberton West State Forest (in which coupes the subject of this litigation are located) and (having sold a portion of the holding) is now about 800 metres from the forest boundary;
(ii) was a member of the Albert River Landcare Group;
(iii) is a member of the Binginwarri Landcare sub-group;
(iv) was a participant in a number of JARR projects, including erosion control and blackberry control on her own landholding, and roadside weeds for trees project, carried out on public land;
(v) published an article in her blog titled ‘What wildlife does for farms’;[7]
[7]A copy of that article is exhibit MM-9 to the Macdonald affidavit.
(vi) engaged in land rehabilitation work, including fencing, weeding, and revegetation between 2009 and the present, aimed at improving the natural environment, native flora and fauna, and biodiversity of the Jack and Albert River catchment area in various locations in the vicinity of the Alberton West State Forest;
(vii) in September 2020, gave an interview to ABC Radio Gippsland about biodiversity in the Alberton West State Forest and the risks posed to it by illegal firewood logging;
(viii) has held public field days on her property for the purpose of community education and information sharing; and
(ix) has been recognised by the West Gippsland Catchment Management Authority and the Trust for Nature for her contribution to the environmental outcomes achieved in the Jack and Albert River catchment area;
(b) Kaye Proudley:
(i) has a landholding adjacent to the Alberton West State Forest;
(ii) has been involved in protecting the environment of the Jack and Albert River catchment area since moving there in 2005 with her husband, on her property, on private properties owned by the Murphy, Macdonald and Favoul families adjoining the Alberton West State Forest, and on public roadside land;
(iii) is a member of the Binginwarri Landcare sub-group;
(iv) was:
1. responsible for re-commencing the operations of the Binginwarri Landcare sub-group in 2010;
2. a JARR committee member;
3. a board member of the YYLN for seven or eight years, running its seedbank for two years;
4. a participant in the JARR erosion control project, carried out on private land belonging to the Favoul and Murphy families; and
5. a participant in the JARR roadside weeds for trees project carried out on public land;
(v) has engaged in land rehabilitation work aimed at improving the natural environment, native flora and fauna, and biodiversity of the Jack and Albert River catchment area on her and her husband’s landholding and in various locations in the vicinity of the Alberton West State Forest, including land owned by other families;
(vi) between 2009 and 2015, was largely responsible for researching and producing a series of six natural history brochures aimed at educating the community about the wide range of flora and fauna that exists in the Jack and Albert River catchment area, including the Strzelecki Koala;
(vii) runs educational tours for local people, including Landcare members, covering topics such as orchids, plants, wildflowers, insects, fungi, reptiles and birds;
(viii) has run several annual Clean-Up Australia Days to remove rubbish from public spaces in the Jack and Albert River catchment area, along the Hedley Range Rd, Tap Tap Rd, and the Alberton West State Forest;
(ix) has done tree planting throughout the Jack and Albert River catchment area, on private properties from high in the Strzelecki ranges to properties on the Jack River flats, including land belonging to the Macdonald family and her own land, as well as on many roadside reserves, particularly along Nugents Rd and Hedley Range Rd, involving many thousands of plants;
(x) has grown over 10,000 trees and donated them to Landcare and nonLandcare members for the purpose of planting vegetation corridor connections to the Alberton West State Forest on private properties that did not receive funding through the JARR Project or for some other reason required extra plants to top-up their JARR allocation;
(xi) runs a plant identification and seed-collection day in the Alberton West State Forest to encourage and teach others to grow and plant trees;
(xii) helped to set up a website for the Binginwarri Landcare sub-group, including photographing all of the species in order to teach locals and others about the Jack and Albert River catchment area;
(xiii) has written many articles for the Binginwarri Landcare sub-group and other local newsletters on the natural history of the area;
(xiv) has run a Landcare sub-group for over 10 years, encouraging others to be involved in tree planting and teaching about the total catchment area from the Strzelecki Ranges to Corner Inlet;
(xv) has been involved in the initial planning of the program to re-grass the Corner Inlet shallows, which is public land;
(xvi) walks in the Alberton West State Forest on a weekly basis at least, sometimes more often, and has done so for the past 16 years;
(xvii) has hand-weeded pasture grasses out of the Alberton West State Forest for the past 10 years, trying to maintain the health of the forest; and
(xviii) has been recognised by the West Gippsland Catchment Management Authority and the Trust for Nature for her contribution to the environmental outcomes achieved in the Jack and Albert River catchment area;
(c) Samantha Monks:
(i) has an 80 acre landholding in Hiawatha, in the Jack and Albert River catchment area;
(ii) has been intensively working to restore damp forest on her property, linking it to the warm temperate rainforest gullies below her land, which flow into the Little Albert River and then the Albert River;
(iii) is a member of the Binginwarri Landcare sub-group;
(iv) was a committee member of JARR, and the JARR Project Officer for almost 10 years, co-ordinating the delivery of on-ground works across multiple project sites. The JARR Project is a landscape level project which does not discriminate as to land tenure or membership of Landcare. Most of the project work is carried out on private land, government roadsides and reserves, and Crown riverside frontages leased by landowners adjoining the Jack and Albert river systems;
(v) The projects in which Ms Monks was involved, initially on behalf of the YYLN and later on behalf of the West Gippsland Catchment Management Authority, included:
1. protection and revegetation of remnants and creation of landscape scale bio links;
2. invasive plant and animal control programs;
3. erosion control;
4. salinity remediation;
5. salt marsh protection;
6. pasture programs; and
7. community engagement;
Ms Monks project managed and facilitated the above projects, which were government-funded. She engaged in negotiations around the funding conditions with the landowners and managers, and reported to the relevant authority responsible for the funding at critical stages and upon completion;
(vi) has engaged in land rehabilitation work aimed at improving the natural environment, native flora and fauna, and biodiversity of the Jack and Albert River catchment area in various locations in the vicinity of the Alberton West State Forest, including land owned by the Heggen, Pretty, Murphy and Favoul families;
(vii) was one of the co-ordinators of a major JARR Project in July 2012 which received funding from the Department of Sustainability and Environment’s Communities for Nature Grant Round 1, and which worked across strategically identified areas on private land within the JARR area, targeting and supporting landholders to protect and enhance remnant vegetation and connect high priority core habitat areas from the Strzelecki Ranges to the Hedley Range and Alberton West State Forest. Major aims of this landscape scale project were:
1. protect, enhance and/or connect remnant vegetation in priority ecological vegetation communities, which include warm and cool temperate rainforest, lowland forest and damp forest;
2. reduce the impacts of blackberry, a weed of national significance, on biodiversity within the JARR area; and
3. protect, enhance or connect priority habitat for the Strzelecki Koala;
(viii) worked closely during her years as JARR Project Officer with the JARR Committee and Landcare members including Cathy and Leon Trembath (Madalya Landcare Group), Kaye Proudley (Binginwarri Landcare Group), Jenny Davies (Albert River Landcare Group), Marian MacDonald (Albert River Landcare Group) and Kevin Heggen (Binginwarri Landcare Group), helping to restore and enhance remnant vegetation on large tracts of their private land to connect and form bio links for endangered and threatened fauna, including the Strzelecki Koala, Lace Monitor, Greater Glider, Yellow-bellied Glider, and Powerful Owl;
(ix) completed a diploma of conservation and land management and was employed by West Gippsland Catchment Management Authority as the Landcare Project Officer for the YYLN between February 2008 and March 2016. In this capacity, has co-ordinated and delivered the following land rehabilitation projects aimed at improving the natural environment, native flora and fauna, and biodiversity of the Jack and Albert River catchment area in various locations in the vicinity of the Alberton West State Forest:
1. Communities for Nature Grant Round 1: JARR Project (2012-2016) – the Department of Sustainability and Environment – conducted as part of the four year blackberry removal project over a large number of private landholdings;
2. Action on the Ground – Gippsland Plains Soil Carbon Trials – productivity and climate change responses (2012-2015) – Australian Government’s Department of Agriculture, Fisheries and Forestry – conducted on private land owned by J and B Nichols in East Stradbroke, E Balderstone in Darriman, and R and J Foat in Woodside;
3. Coastal Saltmarsh Protection Project (2009-2016) – this project won the Natural Environment Award at the 2014 Victorian Coastal Awards for Excellence and went on to win the Coastcare Award at the 2015 Victorian Landcare Awards. It was a finalist at the Australian Landcare Awards in 2016 – conducted on several private properties along Alberton River, including land belong to the Egan family, east of the Alberton West State Forest;
4. Gippsland Plains Drought Tolerant Pastures Demonstration (2008-2011) – conducted on 10 private landholdings across Woodside, Darriman, Giffard, Giffard West, and Stradbroke;
5. Gippsland Coastal Plains Gorse Control Program (2009-2013) – conducted along public roadsides from Binginwarri to the coast, in privately owned vacant blocks in the township of Port Albert and on some private properties;
6. JARR Salinity Remediation Project (2008) – conducted on privately owned land on the coast, possibly at Tarraville;
7. Roadside Weeds and Rabbits Program (2008-2013) – conducted along public roadsides;
8. Recycling for Recovery-Black Saturday Fires (2009-2010) – involved removal of blackberry along public roadsides;
9. JARR Blackberry Suppression/Erosion Control (2009-2013) – conducted on private landholdings owned by the Murphy, Faul, and Macaulay families; and
10. Serrated Tussock in the West Gippsland Region (2011-2013) – conducted mostly alongside public roadsides;
(x) has worked actively with HVP Plantations to retain Strzelecki Koala habitat on HVP’s land by:
1. inspecting the habitat area with the HVP Stewardship Forester and working with him to compile detailed site descriptions, assessments, and maps for the proposed koala protection area – part of this project included connectivity through her own land;
2. corresponding with the HVP General Manager with a view to creating a landscape scale koala project establishing wildlife corridors and linkages with remnant vegetation on HVP land, stretching from the Strzelecki Ranges to Hedley Range and the Alberton West State Forest; and
3. organising and promoting a koala information night, with four guest speakers addressing the topic of ‘The Strzelecki Koala: a unique population under threat?’, held at the Alberton West recreation reserve; and
(xi) has been recognised by the West Gippsland Catchment Management Authority and the Trust for Nature for her contribution to the environmental outcomes achieved in the Jack and Albert River catchment area;
(d) Jenny Davies:
(i) has a 140 acre landholding adjacent to Marion Macdonald’s landholding, and approximately 800 metres from the Alberton West State Forest;
(ii) is a member of the Binginwarri Landcare sub-group;
(iii) has been a Landcare member for 36 years and was the individual Landcare award winner for 2007;
(iv) was
1. together with Leon Trembath, responsible for founding JARR in 2006 – as chair of the Albert River Landcare Group she worked with Leon Trembath, who was chair of both YYLN and the Madalya Landcare Group, to form JARR;
2. a JARR sub-committee member;
3. the holder of leadership roles with the YYLN and was for many years on its steering committee;
4. involved with Waterwatch as a monitor for over 10 years, receiving an award for conducting 76 site visits to monitor water quality in the Albert River between August 2008 and April 2021; and
5. a participant in numerous projects through JARR and the YYLN to enhance and protect remnant vegetation, manage salinity, and control erosion;
(v) has engaged in the following work aimed at improving the natural environment, native flora and fauna, and biodiversity of the Jack and Albert River catchment area, through rehabilitation and protection of native vegetation on her own property:
1. fencing off, protecting and re-creating 10 hectares of wetland habitat, with extensive revegetation; and
2. a salinity control program involving revegetation of her land with salt-tolerant species;
(vi) has engaged in the land rehabilitation work including tree planting, fencing, erection of shelters and picnic grounds, and revegetation aimed at improving the natural environment, native flora and fauna, and biodiversity of the Jack and Albert River catchment area; and
(vii) has been recognised by the West Gippsland Catchment Management Authority and the Trust for Nature for her contribution to the environmental outcomes achieved in the Jack and Albert River catchment area, and by Landcare with an Individual Landcare award for her work in landscape scale restoration;
(e) Leon Trembath:
(viii) has, together with his wife Cathy Trembath, an 85 acre bush landholding, which he and his wife restored from a degraded hill farm to land that is covered by a Trust for Nature Covenant;
(ix) was:
1. together with Jenny Davies, responsible for founding JARR in 2006;
2. involved in JARR from its inception to the present, including as its first chairman and a committee member;
3. involved in YYLN, including as chairman between 2005 and 2010, seedbank chairman between 2004 and 2007, and steering committee member between 1998 and 2005;
4. convenor of the Ginger Group and Working Group to establish the Victorian Landcare Council in 2008 and inaugural chair of the Council (now known as Landcare Victoria Inc) between 2008 and 2009;
5. initiator and member of the original working group to create the National Landcare Network and original Victorian Landcare Council representative on the Network for 2009;
6. representative for Victoria to the National Landcare Network in 2009;
7. a board member of Leongatha seedbank, between 1998 to 2008;
8. involved in GippsLandcare as treasurer in 2006 to 2007, chair in 2007 to 2009, and YYLN representative in 2005 to 2009;
9. Chairman, Madalya Landcare Group in 2002-2004 and 2008; and
10. a Landcare member since 1997 to date;
(x) has engaged in land rehabilitation work including weed suppression, tree planting, and bird surveys aimed at improving the natural environment, native flora and fauna, and biodiversity of the Jack and Albert River catchment area in various locations in the vicinity of the Alberton West State Forest; and
(xi) has been recognised by the West Gippsland Catchment Management Authority and the Trust for Nature for his contribution to the environmental outcomes achieved in the Jack and Albert River catchment area;
(f) Cathy Trembath:
(i) has, together with her husband Leon Trembath, restored a degraded hill farm to land that is covered by a Trust for Nature Covenant;
(ii) moved to Madalya in 2004 and became a member of Madalya Landcare;
(iii) was:
1. a founding member of the JARR committee; and
2. an active member of the YYLN Board of Management in 2005 to 2010 and 2015 to 2019;
(iv) has engaged in the land rehabilitation work including weed suppression, tree planting, and bird surveys aimed at improving the natural environment, native flora and fauna, and biodiversity of the Jack and Albert River catchment area in various locations in the vicinity of the Alberton West State Forest; and
(v) has been recognised by the West Gippsland Catchment Management Authority and the Trust for Nature for her contribution to the environmental outcomes achieved in the Jack and Albert River catchment area;
(g) Kevin Heggen
(i) has:
1. a 120 acre landholding adjacent to the eastern side of the Alberton West State Forest which includes 26 hectares of covenanted land adjoining the Alberton West State Forest through a Trust for Nature stewardship; and
2. a 900 acre landholding adjacent to the western side of the Alberton West State Forest which includes 200 hectares of covenanted land adjacent to the Alberton West State Forest through a Trust for Nature stewardship;
(ii) has been a Landcare member for 36 years and was the inaugural individual Landcare award winner, at some time before 2000;
(iii) was:
1. a YLLN Vice President and board member;
2. a former chairman and inaugural member of JARR; and
3. involved in restarting the previously inactive Binginwarri Landcare Group to include local people in land management issues and provide support to others doing so;
(iv) has engaged in land rehabilitation work aimed at improving the natural environment, native flora and fauna, and biodiversity of the Jack and Albert River catchment area;
(v) has co-ordinated fox control around Corner Inlet and tube stock planting;
(vi) has, in the context of his environmental work, helped to link natural resource agencies to help achieve better outcomes for conservation and the landholder. Encouraged the Yarram Depot of the West Gippsland Catchment Authority and the Greening Gippsland Biodiversity Project to work together, leading to over eight collective projects in the Yarram Yarram region within two years;
(vii) operates a business, Hedley Range Services, which provides pest, plant, and animal services to the Department of Sustainability and Environment, the Department of Primary Industries, Parks Victoria, Greening Australia, West Gippsland Catchment Authority, and Landcare, and has employed over 50 people to work on JARR Project programs over 20 years;
(viii) on 21 July 2021, emailed the Office of the Conservation Regulator in relation to timber harvesting operation in the Alberton West State Forest, providing information in relation to species identified there;
(ix) has run several workshops and information days on environment protection topics for the public, including events run in conjunction with Greening Australia called ‘Is your bush healthy? How to tell and what you can do about it’ and another, held on his land, titled ‘What to do once the fence goes up’, regarding fencing of existing remnant vegetation sites;
(x) was personally involved through the donation of his time and resources to the construction of the Grand Strzelecki Track, a 110 kilometre walking track through the Strzelecki Ranges; and
(xi) has been recognised by the West Gippsland Catchment Management Authority and the Trust for Nature for his contribution to the environmental outcomes achieved in the Jack and Albert River catchment area.
The Act
Section 5 of the Act provides that a majority of the members of an ‘association’ that is unincorporated may authorise a person to apply to the Registrar for the incorporation of the association and approve the rules of the proposed incorporated association.[8] An association is defined to mean an association, society, club, institution or body formed or carried on for any lawful purpose and that has no fewer than five members.[9]
[8]It is not necessary to deal with the registration of a registrable body under div 2 of pt 2 of the Act.
[9]The Act s 3.
If an application is made in accordance with s 6 of the Act, the Registrar must register the association.[10] On registration the association becomes an incorporated association;[11] any property held on trust or otherwise for the association vests in the incorporated association;[12] and as a body corporate, has perpetual succession, may acquire and deal with property, and may sue or be sued in its corporate name.[13]
[10]Ibid s 7.
[11]Ibid s 8.
[12]Ibid s 9.
[13]Ibid s 29.
The plaintiff adduced in evidence its certificate of incorporation and the minutes of its inaugural meeting on 5 August 2021, with some redactions on the basis of privilege. Those minutes record the adoption of the object of the association as set out at [9] above. The minutes also record decisions that an annual fee of $5.00 be levied on members and to establish an online funding platform, a media team, and a bank account.
At the commencement of the hearing, the defendant called on a notice to produce requiring the production of the following:
1.Any notice of a meeting at which there was to be a vote as to whether to apply for the incorporation of the Plaintiff, issued pursuant to section 5(2)(b) of the Associations Incorporation Reform Act 2012 (Vic).
2. The minutes of any meeting during which a vote was held to determine whether to apply for the incorporation of the Plaintiff, pursuant to section 5(2) of the Associations Incorporation Reform Act 2012 (Vic).
3.Any record of the authorisation provided to any persons to apply for the incorporation of the Plaintiff, pursuant to section 5(1)(a) of the Associations Incorporation Reform Act 2012 (Vic).
4. Any record of the approval of the proposed rules of the Plaintiff, including a copy of those proposed rules, pursuant to section 5(1)(b) of the Associations Incorporation Reform Act 2012 (Vic).
5. The application to incorporate lodged on behalf of the Plaintiff with Consumer Affairs Victoria.
No documents were produced.
The pleading
By its statement of claim, the plaintiff seeks injunctive and declaratory relief in respect of what it alleges are forestry operations conducted in breach of the Sustainable Forests (Timber) Act 2004. The plaintiff alleges that the defendant has engaged in and will, unless restrained, continue to engage in timber harvesting operations in the Jack and Albert River catchment area, including in identified logging coupes.
The plaintiff alleges that these logging operations are in breach of various prescriptions under the Code of Practice for Timber Production 2014 (‘the Code’), the Management Standards and Procedures for timber harvesting operations in Victoria’s State Forests 2014 (‘the Management Standards’) and the Planning Standards for timber harvesting operations in Victoria’s State forests 2014, including:
(a) by failing to conduct site inspections and undertake pre-harvest planning in order to identify and protect threatened fauna;[14]
[14]Including the Cobra Greenhood (Pterostylis grandiflora), Clover Glycine (Glycine latrobeana), and the Velvet Apple-berry (Billardiera scandens var Brachyantha).
(b) by failing to apply the precautionary principle in breach of cl 2.2.2.2 of the Code, in respect of the conservation biodiversity values, including the Lace Monitor (Varanus varius), Strzelecki Koala (Phascolarctos cinereus), the Greater Glider (Petauroides volans), the Powerful Owl (Ninox strenua), and certain fauna;
(c) by failing to consider relevant experts and research in breach of cl 2.2.2.3 of the Code, in respect of identifying and adequately protecting biodiversity values; and
(d) by failing to address risks to biodiversity values listed in the Management Standards during planning.
The injunctions sought by the plaintiff are framed so as to catch logging operations in any logging coupe in Victoria, the Gippsland Forestry Management Area, the Jack and Albert River catchment area, or in the coupes specifically identified in the pleading.
Submissions on standing
The defendant submits that the plaintiff does not have a special interest in the subject matter of the litigation and therefore lacks standing.
Relying on ACF, the defendant says that the stated object of the plaintiff, which is directed to the preservation and conservation of the forest and natural environment, is insufficient to confer standing.[15] It relies on the observation of Sackville J in North Coast Environment Council Inc v Minister for Resources[16] that an ‘organisation does not demonstrate a special interest simply by formulating objects that demonstrate an interest in and a commitment to the preservation of the physical environment.’[17]
[15][15] ACF (1980) 146 CLR 493, 531 (Gibbs J), 539 (Stephen J), 547 (Mason J); [1980] HCA 53.
[16](1994) 55 FCR 492.
[17]Ibid 512; see also, Environment East Gippsland v VicForests [2010] VSC 335, [78] (Osborn J).
It submits that the plaintiff, which was incorporated on 5 August 2021, six days before it commenced the proceeding, cannot rely on the pre-incorporation activities of its members to establish its own standing. The defendant starts with the proposition that as an incorporated association, the plaintiff has a legal personality that is separate and distinct from its members. Next, it says that in order to establish standing the plaintiff has to point to its own activities, conduct, and interests and it cannot derive standing by a process of attribution of its members’ individual activities undertaken before incorporation. It says that ACF is against the plaintiff and that, to the extent that the plaintiff relies on Western Australian authority, to which I shall come, that line of cases has been qualified in subsequent cases and can be distinguished.
The defendant submits that because the focus must be on the interest of the plaintiff, the connection of its corporators or members before incorporation is irrelevant to the question of whether the corporation, after it comes into existence, has standing.
The plaintiff submits that the knowledge and state of mind of a corporation is always the knowledge and state of mind of natural persons. It is legitimate, and sometimes necessary, to attribute members’ concerns and interests to an incorporated association in order to ascertain the association’s corporate character. Questions of separate legal personality and members’ limited liability are irrelevant to the exercise. Secondly, it says that a substantial body of binding authority establishes that it is permissible to attribute the members’ special interest to a newly formed corporation. Thirdly, it submits that High Court authority is opposed to the defendant’s technical and restrictive approach to the question of standing. Standing rules should be interpreted flexibly, to facilitate rather than frustrate equitable intervention in public law.
On the first aspect, the plaintiff submits that there are no fixed rules or tests to apply in order to determine whether a party has a special interest in the subject matter of the litigation. It is not necessary that the relationship between the putative plaintiff and the subject matter of the litigation reflect any legal right or interest and that it is permissible to consider intangible matters in order to assess the plaintiff’s ‘character’, a concept that captures the entity’s culture, identity, or intentions.
It submits that the law has long attributed the acts or knowledge of individuals to a corporate entity in a variety of contexts. It does so, for example, where it is necessary to attribute a state of mind to a company or in the context of criminal liability. The plaintiff calls in aid the approach of Lord Hoffman in Meridian Global Funds Management Asia Ltd v Securities Commission,[18] where his Lordship observed that it may be necessary for a court to fashion a special rule of attribution for the particular substantive rule with which the court is concerned.[19]
[18][1995] 2 AC 500; [1995] 3 All ER 918.
[19]Ibid [8].
It submits that where all of the members of an incorporated association have a special interest in the subject matter, then the corporate entity will also be a genuinely interested party. The plaintiff accepts, based on an observation of Gibbs J in ACF, that this may not be the case when only some members have a sufficient interest. In ACF, Gibbs J said:
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.[20]
[20]ACF (1980) 146 CLR 493, 531; [1980] HCA 53 (citations omitted).
However, the plaintiff submits that this observation was not couched in terms that would apply to it, in circumstances where all of its members, rather than some, have the relevant interest.[21] The plaintiff seeks to draw some comfort from the judgment of Boddice J in Save Surfers Paradise Inc v Gold Coast City Council.[22] That case concerned a challenge to decisions of the Gold Coast Council to sell certain property, including an existing car park. The plaintiff was an incorporated association whose objects included to oppose the sale of the property, to maintain and secure adequate public car parking in Surfers Paradise, and to promote and support trade and commerce in the interests of business owners, rate payers and residents in the Surfers Paradise area.
[21]Emphasis added.
[22][2018] QSC 181.
After referring to the relevant principles, Boddice J noted that the applicant had been incorporated after the decisions and its objects and activities reflected the interests of its members, however, it did not follow that the applicant itself did not have the requisite special interest.[23] He noted that merely incorporating an organisation with relevant objects will not provide that organisation with standing it otherwise would not have. In a passage relied on by the plaintiff, Boddice J continued:
Further, the circumstances of the applicant, in the context of the surrounding material, supports a conclusion that the applicant, through its public activities, is actively pursuing the interests of its members and supporting organisations. Some of those members have commercial interests affected by the decisions in a material way, greater than an ordinary member of the public. Such an impact would be sufficient to constitute a special interest for that individual member. However, a special interest of its individual members is insufficient to constitute the requisite special interest of the applicant. A party’s special interest may nevertheless be established by evidence that each of its members have a requisite interest in the subject matter.[24]
[23]Ibid [30] (citations omitted).
[24]Ibid [32].
As authority for the last sentence in that paragraph, Boddice J cited Manuka Business Association Inc v ACT Executive,[25] a decision of Higgins J in the ACT Supreme Court. In that case, Higgins J held that a local representative business group had standing to challenge a decision to lease crown land and erect a large retail and residential complex with car parking spaces to replace and augment existing public parking. Higgins J found standing where the association was representative of traders and local owners, had made submissions on the mandatory preliminary assessment, had a particular interest in the development of the precinct ‘not only from an economic perspective but also from an environmental and social one’,[26] and because each of its members would have a real interest in the subject matter.
[25](1998) 146 FLR 464; [1998] ACTSC 86 (‘Manuka’).
[26]Ibid 469.
The plaintiff also relies on a number of cases in which standing has been considered based on the attributes and interests of its members or clients. It is convenient to refer to some of those cases now.
In Shop Distributive & Allied Employees Association v Minister for Industrial Affairs,[27] the High Court considered whether a shop employees’ union had standing to challenge a decision as to shop trading hours. The Court proceeded on the basis that the union had the same interest as its members.
[27](1995) 183 CLR 552; [1995] HCA 11 (‘Shop Distributive’).
In Ex Parte Helena Valley/Boya Association (Inc) v State Planning Commission and Beggs,[28] a proceeding was brought in the Supreme Court of Western Australian seeking certiorari and other relief in relation to amendments to a planning scheme to permit a development of land. The applicants were individual owners of land near the proposed development and an incorporated association. The association was incorporated after the amendment to the planning scheme that permitted the development. Ipp J, with whom Pidgeon J agreed, found that the individuals had standing because the proposed amendment affected the enjoyment of their own land.[29] He also held that the association had standing. He reached that conclusion on the basis that the ‘representative character of the [a]ssociation, its history, the purpose for which it was formed and the special interests of its members, when taken together, entitle it to apply for prerogative relief’.[30] Ipp J referred to the judgment of Jacobs J in Australian Conservation Inc v South Australia[31] in support of the association’s standing as a ‘representative body’, with members such as ratepayers and electors who were concerned to protect the environmental condition of the land in the vicinity of their properties. Ipp J’s reference to the history of the association was based on the evidence that its predecessor association had been formed in the 1950s and its constitution was approved in 1973 with the purpose of preserving the rural character of the area.
[28](1989) 2 WAR 422 (‘Helena’).
[29]Ibid 431 citing Day v Pinglen Pty Ltd (1981) 148 CLR 289, 299.
[30]Ibid 437.
[31]Ibid 437 citing (1989) 52 SASR 288, 303.
In Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc,[32] McLure JA followed Helena. MacTiernan was another proceeding brought by an incorporated association to challenge a property development. The objects of the association included the protection, preservation, and rehabilitation of the Coogee beach coastal zone, where the proposed development was to occur. In furtherance of that object, the association had held meetings and rallies, published information about the proposal, and organised a petition to Parliament. It lodged a submission to the Parliamentary Accounts Committee inquiring into the proposed development and made a submission in relation to the proposed amendment. It also relied on the interests of its members. It had 145 members, a majority of who lived close to the development, used the beach area for boating, swimming, fishing and recreation, and some members had views of the development from their residences. McClure JA adopted the same approach as that of Ipp J in Helena, concluding that the association had standing having regard to the representative character of the association, the purpose for which it was formed, and the special interests of its members.
[32](2005) 30 WAR 138; [2005] WASCA 109 (‘MacTiernan’).
Although agreeing in the result, Wheeler JA expressed some doubt about whether the attribution of the interest of members to a corporate entity in the context of standing was sound. Her Honour noted decisions in the Supreme Court of Western Australia in which it had been held that the interests of the members, at least when taken together with other circumstances, were capable of conferring standing upon an incorporated association of this type.[33] However, her Honour stated her concern that this approach may ‘have run ahead of both High Court authority, and of principle’.[34]
[33]Ibid [6] citing West Australian Field and Game Association v Minister of State for Conservation and Land Management and Environment (1992) 8 WAR 64, 70 (Malcom CJ) and Helena (1989) 2 WAR 422.
[34]Ibid [6].
Wheeler JA noted that the line of authorities had been influenced by the decision of the High Court in Shop Distributive but in that case standing had been the subject of a concession as to the coincidence of interest between a union and its member. Wheeler JA referred to dicta in the High Court that highlighted a distinction between the corporate entity and its members, and said that cast doubt on the correctness of treating them as indistinguishable for the purpose of standing.[35]
[35]Referring to the following decisions: ACF (1980) 146 CLR 493, 531; [1980] HCA 53; Victorian Chamber of Manufactures v Commonwealth (Prices Regulations) (1943) 67 CLR 335, 343 (Starke J); [1943] HCA 19; Real Estate Institute of NSW v Blair (1946) 73 CLR 213, 224 (Latham CJ), 226 (Starke J), 228 (Dixon J); [1946] HCA 43; British Medical Association v Commonwealth (1949) 79 CLR 201, 257 (Dixon J); [1949] HCA 44.
Wheeler JA observed that considerations of policy, particularly in relation to costs, intrude where an association is treated as having the same interests as its members so as to allow the entity to act as an alter ego of the members while immunising the members from any potential costs liability.[36]
[36]MacTiernan (2005) 30 WAR 138, 144 [10]–[11]; [2005] WASCA 109.
The plaintiff also points to a series of cases in which the characteristics of the members have been relevant in assessing whether a corporate entity has standing.[37]
[37]Alliance to Save Hinchinbrook Inc v Environmental Protection Agency (2007) 1 Qd R 102, [18], [21] (Jones J); [2006] QSC 84; Manuka (1998) 146 FLR 464, 469 (Higgins J); [1998] ACTSC 86; Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning (2010) 107 SASR 205; [2010] SASC 93.
Consideration
In order to maintain the current action, the plaintiff must satisfy the Court that it has a special interest in the subject matter of the litigation.
In VicForests v Kinglake Friends of the Forest,[38] the Court of Appeal said:
[38][2021] VSCA 195 (‘Kinglake’).
A number of points emerge from ACF and Onus:
(a) A plaintiff must show a special interest in the subject matter of the litigation;
(b) The need for a special interest reflects the need to show an interest or a position that is different from the public at large;
(c) The concept of ‘interest’ is not limited to proprietary, business or economic interests;
(d) The need for the interest to be special or different is not merely a function of the depth of feeling but reflects the nature of the relationship between the person and the subject matter of the litigation. The nature of the interest in the subject matter must be more than merely emotional or intellectual;
(e) The subject matter of the litigation will involve a consideration of the statutory context, the nature of the power, and the form of relief sought. The place, if any, that the plaintiff has in the statutory scheme may be important.
An important aspect of the reasoning in ACF is that the application of the special interest test is fact and context specific. Gibbs J made that point expressly by his reference to Mason J’s judgment in Robinson and by his statement that he would not deny that a person might have a special interest in the preservation of a particular environment. Ultimately, ACF was decided on the basis that the two interests ACF relied on, when considered in the light of the specific statutory scheme, were insufficient to give it standing.[39]
[39]Ibid [60]–[61] (Niall, Emerton and Kennedy JJA).
A critical focus of the inquiry is on the nature and extent of the relationship between the putative plaintiff and the subject matter of the litigation. Because the nature of the interests that may support standing do not depend on the existence of legally enforceable rights, a plaintiff does not need to show a proprietary, business or economic interest that is liable to be affected. That point is amply illustrated by the decision of the High Court in Onus, where the plaintiffs had a deep cultural and spiritual connection to the Aboriginal relics that were threatened by a proposed development.
In assessing the standing of a body corporate it will be necessary to have regard to a range of matters, including its constituent documents as well as other matters, such as its purpose, activities, and scale.[40] In making this evaluative assessment it is unwise to draw inflexible rules as to what is and is not relevant.
[40]Ibid [21].
One thing that emerges clearly from ACF is that standing is not established merely because a person or entity sets out to be involved in the subject matter, even if that desire is born from a deep emotional or intellectual concern. In this sense, a statement of corporate purpose or objective is little different to an exclamation by an individual that they are intent on being involved in a particular issue and wish to vindicate their proclaimed interest. In ACF, Gibbs J expressed the point in this way:
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.[41]
[41](1980) 146 CLR 493, 531; [1980] HCA 53.
In ACF, Gibbs J also made the point that a corporation does not acquire standing because some of its members possess it. The plaintiff submits that his Honour was not addressing himself to the situation in which all of the members of an incorporated body have standing and that it may be inferred that such a body would be viewed differently. I do not agree. As I read that part of the reasons for judgment, Gibbs J was making the point that the issue is the standing of the plaintiff based on its conduct, activities, and relationship and that this is not merely a derivative status derived from the position of its members or corporators.
The fact that a corporation, including an incorporated association, has a separate and distinct legal identity from its members is an important and related part of the context in which to assess the entity’s standing with respect to particular litigation. It serves to emphasise that it is the relative position of the plaintiff, as a separate juristic entity, that is critical. However, it does not follow, as the defendant would have it, that the activities and interests of the members, including those that occurred pre-incorporation are necessarily irrelevant.
The activities of individual members of an organisation post-incorporation, at least when conducted as a member, may be attributed to the organisation in a variety of contexts. If the member is acting as an agent of the entity or with its authority, the entity may be liable under the principles of agency or in accordance with usual rules of attribution where a body corporate acts through individuals. But the present issue is not the ascertainment of legal responsibility for the conduct of members. Rather, it is necessary to ascertain the nature of the relationship between the entity and the subject matter and there is no reason why the conduct of its members is irrelevant.
The issue is more nuanced in the case of pre-incorporation conduct. I am not persuaded that such conduct is always irrelevant. For example, the Act provides for the incorporation of a pre-existing unincorporated association. Before incorporation, such an association has no separate legal existence that is independent from its members. However, as a group of individuals the association may have a collective identity and have engaged in conduct as a collective for the purpose of common endeavour. In doing so, the group of individuals may have a connection with a particular subject matter and have engaged in activities and conduct to express their collective concern or involvement. I see no reason why that conduct must be ignored when assessing standing of the incorporated entity.
That approach accords with Helena, where the predecessor association had been formed in the 1950s and was formalised by a constitution in the early 1970s. On incorporation, a new legal entity was created, but as Ipp J observed, the history showed a representative body of long standing. In such cases, I can see no reason to ignore that history in evaluating the connection of the body once incorporated. That holds true even though the new body may have no legal responsibility for the conduct that occurred before incorporation.
On the other hand, I cannot accept the plaintiff’s submission that the broad fact specific approach to standing, mandated by the authorities, means that all of the conduct of the individual members should be taken to be the conduct of the plaintiff by means of some rule of attribution. The plaintiff’s resort to an assessment of its ‘character’ based on its ‘culture, identity or intentions’ is, in practical terms, very similar to the case advanced and rejected in ACF. It amounts to a willingness and capacity to engage with the subject matter, rather than an established connection based on its own conduct and activities.
As the Court of Appeal explained in Kinglake:
…a distinction may be drawn between merely holding beliefs (or having a mere emotional or intellectual concern), and the taking of concrete steps to give effect to those beliefs. The latter demonstrates a commitment that distinguishes the person or entity from other members of the community and may give rise to a ‘special interest’ in securing compliance with regulatory requirements. In the context of environmental protection, the commitment may be shown by the conduct or support of research, community engagement, interaction with the regulator, participation in the development of regulatory controls, the development of expertise and knowledge, political lobbying or other conduct. Such conduct would reveal that the person or entity is not just an ‘intermeddler’, ‘crank’ or ‘busy body’. It may allay concerns that the entity will not be in a position to carry through the litigation. In this context, the distinction between beliefs and action is both logical and coherent, and consistent with the purpose of the standing rule.[42]
[42]Kinglake [2021] VSCA 195, [76] (Niall, Emerton and Kennedy JJA) (citation omitted).
That distinction breaks down if the plaintiff is able to rely not on its own conduct but solely on that of third parties even where those other parties are members of the association.
In this case, the plaintiff is frank that its case for standing is based on a combination of the position of its members and its object. Although the Act requires that there exist an association before incorporation, there is no evidence here that the association that was incorporated on registration had any degree of formality, undertook any activities, or even had an informal structure beyond the nominal existence of an association coming together for the first time and for the purpose of incorporation. The defendant takes no issue with the validity of the association and the process of incorporation but says that the plaintiff cannot point to any pre-incorporation activity or cohesion that would be relevant to its current standing.
At its highest, the plaintiff is an association of like-minded individuals each with an interest in the preservation and protection of the local environment and in particular in the Jack and Albert River catchment area. The individual members of the plaintiff have been involved through various groups including the JARR and the YYLN, but the facts do not suggest that the plaintiff is the new embodiment of these pre-existing unincorporated associations.
The agreed facts show that their interest is deep and long standing and has been manifested in their activities and personal investment in their local environment. The standing of the individual members to bring an action of the kind now before the Court was not seriously put in doubt by the defendant. Although the activities undertaken by the individuals had much in common, it cannot be said that they were undertaken as part of a group that now manifests itself in the incorporated body of the plaintiff. They cannot meaningfully be said to belong to or be associated with the plaintiff.
The experience, aptitude, and involvement in environmental work of the members of the plaintiff, together with its object, amply show that the plaintiff has the purpose of protecting the local environment and the capacity to do so effectively. However, at the point of incorporation, and a short time later when it commenced this proceeding, this capacity had not yet manifested itself in any activities or conduct by the incorporated entity. It seems to me that in the light of ACF this is insufficient. I do not regard it as consistent with the authorities that the entity be treated as and from its commencement as possessing all the relevant attributes of its members for the purpose of determining its connection with the subject matter of the litigation. In those cases, such as Helena and Manuka, the plaintiff could rely on more than the activity of its members. The plaintiff cannot. Although each case depends on its own facts and statutory context, the approach I favour is consistent with the approach taken by Richards J in The People of the Small Town of Hawkesdale Inc v Minister for Planning.[43] As was the case in that decision, there is no evidence of any activity by the plaintiff to represent its members’ interests or pursue its object, other than its commencement and pursuit of this proceeding.[44]
[43][2021] VSC 510.
[44]Ibid [65].
Although I am unable to conclude that the plaintiff is, in effect, a single purpose vehicle for the conduct of the proceeding, the fact that in its very short existence the litigation is the only conduct of the plaintiff shows its connection with the subject matter is confined to bringing the action. I infer that this particular litigation is a significant reason for the incorporation of the plaintiff. And, as a matter of both logic and precedent, the fact that the plaintiff has commenced the litigation is not evidence of its interest in the subject matter that independently supports standing. An entity does not have standing to bring a proceeding merely because it has commenced the proceeding.
Although one may infer that a reason that the litigation is conducted through a corporate vehicle is to protect the individuals against the risk of any exposure to costs, ultimately I am not persuaded that this is of much significance on the question of standing. The decision of the plaintiff to commence the litigation was not improper and should not be seen as some nefarious or underhanded manoeuvre.
It may be accepted that rules as to standing are designed to ensure that the plaintiff has a proper interest in the litigation and the controversy is a real one. However, the interest that must be demonstrated should not depend on the size of cash reserves or the holding of assets. The Court has available in its armoury a number of means to prevent unfairness or injustice to an opposing party by reason of the impecuniosity of a corporate plaintiff, including security for costs, cost caps, and orders against non-parties. In the ordinary case, the fact that the plaintiff is incorporated and without substantial assets may say little if anything about standing.
Conclusion
The plaintiff does not have standing to bring the proceeding. The proceeding must be dismissed. There is no occasion to consider the application for security for costs.
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