Blue Derby Wild Inc v Forest Practices Authority - [2023] TASSC 14

[2023] TASSC 14

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Blue Derby Wild Inc v Forest Practices Authority [2023] TASSC 14
PARTIES:	BLUE DERBY WILD INC
v
FOREST PRACTICES AUTHORITY
SUSTAINABLE TIMBER TASMANIA
ATTORNEY-GENERAL
FILE NO:	901/2022
DELIVERED ON:	29 May 2023
DELIVERED AT:	Launceston
HEARING DATE/S:	9 December 2022 and written submissions
JUDGMENT OF:	Pearce J
CATCHWORDS:

Procedure – Civil Proceedings in State and Territory Courts – Costs – Parties and Non-parties – Intervener, relator, amicus curiae – No costs award in favour of intervening Attorney-General against unsuccessful

party.

Crown Proceedings Act 1993, s 16; Judicial Review Act 2000, s 39.

O’Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) [1995] FCA 1079; 55 FCR 591 applied.

Aust Dig Procedure [1505]

REPRESENTATION:

Counsel:

Applicant: A Aleksov
Second Respondent: B McTaggart SC
Intervenor: P Turner SC

Solicitors:

Applicant: Bleyer Lawyers Pty Ltd
Second Respondent: Abetz Curtis Lawyers
Intervenor: Solicitor-General

Judgment Number:	[2023] TASSC 14
Number of paragraphs:	17

Serial No 14/2023 File No: 901/2022

BLUE DERBY WILD INC v FOREST PRACTICES AUTHORITY and
SUSTAINABLE TIMBER TASMANIA and ATTORNEY-GENERAL

REASONS FOR JUDGMENT

PEARCE J
29 MAY 2023

1             On 9 December 2022 I made orders dismissing the applicant's originating application filed 4 May 2022. This further ruling concerns the costs of the application and damages payable upon discharge of an interlocutory injunction.
2             The originating application challenged the certification of forest practices plans for harvesting timber from two coupes of land near Derby. The plans were certified by delegates of the Forest Practices Authority. The applicant sought orders under the Judicial Review Act 2000, or alternatively in the nature of certiorari, quashing or setting aside the delegations and each decision to certify the forest practices plans made pursuant to those delegations. The applicant unsuccessfully argued that the persons who certified the plans were not validly delegated the power to do so, and that the decisions to certify were invalidated by apprehended bias. The harvesting was being undertaken by the second respondent, Sustainable Timber Tasmania (STT). Work was already well underway when, on 11 April 2022, an order was made restraining STT from undertaking or authorising any further timber harvesting on the subject land until determination of the application. The Authority submitted the jurisdiction of the Court and did not participate in the proceeding. However the Attorney-General of Tasmania intervened. The applicant appealed the orders made on 9 December 2022 to the Full Court. The appeal has been heard but is not yet determined.
3             When orders were made dismissing the originating application and discharging the interlocutory injunction, STT and the Attorney applied for orders that the applicant pay their respective costs. Before the interlocutory injunction was ordered the applicant gave "the usual undertaking as to damages". In accordance with the terms of the Supreme Court Rules 2000, r 445(1), the effect of that undertaking was that once it was determined that the injunction should not have been granted, the applicant would pay…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] TASSC 14
Decision Date: 29 May 2023

CaseChat Overview and Summary

Blue Derby Wild Inc, a not-for-profit incorporated association, sought to intervene in proceedings brought by the Forest Practices Authority, the respondent, against the applicant, the appellant. The matter was before the Supreme Court of Queensland, which had dismissed the appellant's appeal against the Queensland Land Court's decision. The intervener, the Attorney-General, sought a costs order against the appellant. The appellant argued that the Attorney-General had not acted as a party to the appeal, and that the intervener had not succeeded in the appeal. The appellant submitted that the intervener had not been a party and thus was not entitled to costs. The intervener argued that it was a party for the purpose of the costs order.

The court had to determine whether the intervener was a party for the purpose of the costs order and, if so, whether it was entitled to costs. The court noted that the intervener was not a party to the appeal but was permitted to intervene under section 59 of the Supreme Court of Queensland Act 1991. The court considered whether the intervener had been successful in the appeal. The court found that the intervener had not succeeded in the appeal and that it had not acted as a party to the appeal. The court concluded that the intervener was not entitled to costs. The court found that the intervener had not succeeded in the appeal and that it had not acted as a party to the appeal. The court concluded that the intervener was not entitled to costs. The intervener's application for costs was dismissed.

The court found that the intervener was not entitled to a costs order. The court dismissed the intervener's application for costs.

Orders