Blue Derby Wild Inc v Forest Practices Authority (No 2)
[2024] TASFC 1
•12 April 2024
[2024] TASFC 1
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | Blue Derby Wild Inc v Forest Practices Authority (No 2) [2024] TASFC 1 |
| PARTIES: | BLUE DERBY WILD INC |
| v | |
| FOREST PRACTICES AUTHORITY, | |
| SUSTAINABLE TIMBER TASMANIA and | |
| ATTORNEY-GENERAL | |
| FILE NO: | FCA 3380/2022 |
| DELIVERED ON: | 12 April 2024 |
| DELIVERED AT: | Burnie |
| HEARING DATES: | 18 April 2023, 26 February 2024 |
| JUDGMENT OF: | Jago J, Martin AJ |
| CATCHWORDS: |
Appeal and new trial – Procedure – Tasmania – Other matters – Unavailability of judge – Where one member of three member bench unavailable – Whether remaining members can reconstitute to form Full Court – Whether reconstitution is in the interests of justice – Where delay prejudicial – Reconstitution and delivery of judgment by two member bench lawful and appropriate in the interests of justice.
Administrative Law - Judicial Review –Standing to institute proceedings – Where standing not provided for in legislative scheme – Application of "special interest test" - Whether interest in preservation of the environment sufficient to support standing – Appellant fails "special interest" test and is not a "person aggrieved" – Appeal dismissed.
Statutes – Acts of Parliament – Statutory Powers and Duties – Exercise of delegation of power conferred by Act – Validity of delegation – Procedural fairness - Apprehended bias – Where requirements for the exercise of delegated power to be free from apprehended bias excluded by legislative scheme – Appeal dismissed.
Cases cited
Australian Conservation Foundation v the Commonwealth [1980] HCA 53, 146 CLR 493
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73
Binginwarri Friends of the Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 824
Cotogno v Lamb (No 2) [1985] 3 NSWLR 221
Ding v De Wit [2024] TASSC 6
Elliott v Harris (1974) 8 SASR 458
Onus v Alcoa of Australia Ltd [1981] HCA 50, 149 CLR 27
R v Kelly; ex parte Victorian Chamber of Manufactures [1953] HCA 30, 88 CLR 285
Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 4 ALD 277
VicForests v Kinglake Friends of the Forest [2021] VSCA 195
Wentworth v Rogers (No 3) [1986] 6 NSWLR 642
Legislation
Forest Management Act 2013
Forest Practices Act 1985
Forestry Act 1920
Judicial Review Act 2000
Supreme Court Civil Procedure Act 1932
REPRESENTATION:
Counsel:
Appellant: E Nekvapil SC, A Aleksov First Respondent: P Turner SC, M Rapley Second Respondent: B McTaggart SC Third Respondent: P Turner SC, M Rapley
Solicitors:
Appellant: Bleyer Lawyers Pty Ltd First Respondent: State Ligation Office Second Respondent: Abetz Curtis Third Respondent: State Ligation Office
| Judgment Number: | [2024] TASFC 1 |
| Number of paragraphs: | 121 |
Serial No 1/2024
File No FCA
3380/2022
BLUE DERBY WILD INC v FORESTRY PRACTICES AUTHORITY, SUSTAINABLE TIMBER TASMANIA and ATTORNEY-GENERAL
| REASONS FOR JUDGMENT | FULL COURT |
JAGO J
MARTIN AJ
12 April 2024
Orders of the Court:
Appeal dismissed.
Serial No 1/2024
File No FCA
3380/2022
BLUE DERBY WILD INC v FORESTRY PRACTICES AUTHORITY, SUSTAINABLE TIMBER TASMANIA and ATTORNEY-GENERAL
| REASONS FOR JUDGMENT | FULL COURT |
JAGO J
12 April 2024
1 I have had the benefit of reading the reasons of Martin AJ. I agree with them and agree that the appeal should be dismissed.
Serial No 1/2024
File No FCA
3380/2022
BLUE DERBY WILD INC v FORESTRY PRACTICES AUTHORITY, SUSTAINABLE TIMBER TASMANIA and ATTORNEY-GENERAL
| REASONS FOR JUDGMENT | FULL COURT |
MARTIN AJ
12 April 2024
Introduction
2 The Forest Practices Authority (the Authority) is the State instrumentality charged with the administration of the Forest Practices Act 1985 (the Act). Pursuant to the Act, the harvesting of timber and the clearing of trees is unlawful unless authorised by a certified forest practices plan.
3 Sustainable Timber Tasmania (STT) undertook the harvesting of timber pursuant to forest practices plans certified by delegates of the Authority. The appellant challenged the certification of the plans on the basis that the persons who certified the plans had not received valid delegations for that purpose or, alternatively, that their decisions were invalidated by reason of apprehended bias.
4 Pearce J found that the delegations were valid[1]. Although his Honour, on one view, found that apprehended bias was made out, he also found apprehended bias did not invalidate the certifications because the requirement that the exercise of the delegated power to certify be free of apprehended bias was excluded by the legislative scheme. Accordingly, his Honour dismissed the challenge to the certifications of the plans.
[1] The appellant has not appealed against the ruling that the delegations were valid.5 The appellant appeals against the dismissal on the sole ground that the learned trial judge erred in finding that the legislative scheme excluded the operation of the principles relating to apprehended bias in respect of the certification decisions. For the reasons that follow, I would dismiss the appeal.
Court Reconstituted
6 It is appropriate to explain the history of this appeal.
7 On 18 April 2023 the appeal was argued before the Full Court constituted by Geason J, Jago J and me. Judgment was reserved and had not been delivered when Geason J ceased sitting as a Supreme Court judge.
8 In early November 2023, Tasmania police served Geason J with a Family Violence Order. The Order related to Geason J’s partner. Subsequently, in relation to the same complainant, Geason J was charged with Assault and Emotional Abuse. His Honour was granted bail, and a Family Violence Order remained in force. Early in 2024, Geason J was charged in NSW with breaching that order.
9 On 8 December 2023, Geason J signed an undertaking to members of the House of Assembly and the Legislative Council of the Parliament of Tasmania that until the resolution of the court proceedings on complaint 11690/23 and the related Application for a Family Violence Order 150507/23, his Honour would adhere to an extant direction that he not sit in respect of any matter, whether in Court or in Chambers, or seek to exercise any of the powers of a judge of the Supreme Court of Tasmania, except to the extent that the Chief Justice of the Supreme Court of Tasmania "might request".
2 No 1 of 2024
10 In reasons delivered on 1 March 2024, the Chief Justice stated that he considers it "inappropriate" to make any such request while charges against Geason J are pending.[2]
[2] Ding v De Wit [2024] TASSC 611 It is not known when the charges against Geason J will be heard, either in Tasmania or New South Wales. In both cases, it appears likely that they will not be heard and determined for many months.
12 The appellant commenced the proceedings under consideration with an application filed on 8 April 2022. The application relates to certification of plans for the harvesting of timber in areas known as coupes CC105A and CC119A. At the time the application was filed, harvesting of coupe CC119A had been completed and approximately 25% of CC105A had been harvested. Through a combination of injunctions and undertakings, since April 2022 the second respondent has been unable to complete harvesting of timber in coupe CC105A.
13 On 9 December 2022, the trial judge dismissed the application and delivered written reasons. The appeal was fully argued on 18 April 2023. As mentioned, judgment remained reserved at the time that Geason J ceased exercising the jurisdiction of a Supreme Court judge in late 2023.
14 On 22 February 2024 the appellant filed an interlocutory application seeking an order that the second respondent be restrained from undertaking any forest practices in coupes CC105A or CC119A, except for the purpose of undertaking restorative or regenerative works. In other words, the appellant sought an injunction against the second respondent preventing the second respondent from harvesting the timber remaining on the areas which are the subject of the certified forest practices plans challenged in these proceedings.
15 The interlocutory application for an injunction was based on the appellant's understanding that the second respondent was about to resume harvesting timber in coupe CC015A. An affidavit filed by the second respondent explained that if the second respondent is unable to harvest the remainder of CC105A as planned, the second respondent will experience difficulty in meeting supply obligations to various saw mills. If that situation arises, the second respondent will be required to transport logs from other regions which the second respondent estimates would cost between $10,000 and $20,000.
16 In addition, the second respondent explained difficulties associated with complying with reforestation obligations if harvesting is delayed. As 25% of coupe CCS105A has been harvested for approximately two years, that portion of the coupe can be difficult to regenerate because it will not burn with sufficient intensity required to create a quality seed bed by reason of regeneration of competing vegetation and loss of fine fuels. Further, if harvesting is delayed, the respondent believes it will be at significant risk of not being able to comply with its obligations for reforestation prior to the expiry date of the forest practices plan, being 31 August 2025.
17 It is readily apparent that the judgment of the Full Court should be delivered as soon as is reasonably possible. Significant commercial interests are at stake and there is an urgent need for the rights of the parties to be determined by the Full Court without delay.
18 Following receipt of the interlocutory application for an injunction, on 23 February 2024 the Court wrote to the parties advising that Jago J and I were agreed as to the outcome of the appeal and were in a position to deliver judgments. The parties were invited to provide submissions as to whether they were content for the Court to deliver its judgment constituted by two members; whether the parties would seek to have the Full Court reconstituted with a different third judge and have the appeal reheard; whether the newly appointed member of the Court should determine the appeal on the basis of submissions already made; or whether the decision of the Court should remain reserved until the position of Geason J became clearer.
19 The Court also wrote to Geason Jon 23 February 2024 seeking his advice as to whether, in the circumstances, he intended to continue as a member of the Full Court or otherwise. Geason J has not replied to that correspondence.
20 The appellant's written response was:
3 No 1 of 2024
"The appellant would be grateful to receive judgment of the Full Court, constituted
for the appeal as soon as possible."
21 The first and third respondents indicated they would be content for the Full Court to deliver judgment constituted by two members, but suggested the legal question whether ss 14 and 15 of the Supreme Court Civil Procedure Act allows such a course in the current circumstances is a "complex question".
22 On 26 February 2024 Jago J and I conducted a hearing, during which it became clear that all parties were uncertain whether the Court, constituted by only two of the original three judges, could deliver judgment in the appeal. However, all parties agreed that the Court could reconstitute, and reconstitute with only two judges being Jago J and me. In those circumstances, the Court constituted by Jago J and me ordered that the Full Court be reconstituted for the hearing of the appeal, and that the reconstituted bench would comprise Jago J and me.
23 The respondents were content for the reconstituted Court to deal with the matter on the papers, but the appellant did not consent to that procedure. The appellant indicated it sought an opportunity to present additional submissions concerning the substance of the appeal. The Court determined that further submissions were to be supplied in writing and there would be no further oral hearing. Bearing in mind the urgency of the matter, particularly in view of the issue of the interlocutory application for an injunction, the appellant was given until Tuesday 5 March 2024 to provide further written submissions in respect of the substantive appeal, and the respondents were to reply by the close of business on Friday 8 March 2024.
24 The second respondent provided an undertaking that, in the meantime, no further harvesting would occur in the coupes under consideration until the Court delivered its decision.
25 The appellant filed written submissions on 5 March 2024 comprised of 24 paragraphs, 20 of which challenged the orders of the Court that the Court be reconstituted, and be comprised of Jago J and me. Only one short paragraph raised an additional point with respect to the substance of the appeal.
26 In the written submissions of 5 March 2024, the respondents stated:
"We accept that the appellant did not clearly express opposition to reconstitution at the mention hearing on 26 February 2023. Without departing from that acceptance, we contend that the appellant had insufficient notice of the proposed order, or time to take advice and provide instructions, before the order was made. With the benefit of further time to take advice and provide instructions, the appellant objects to the Full Court making the Order it did on that day, and (more importantly) objects to the Full Court acting upon that Order in determining the appeal."
27 I reject the contention that the appellant had insufficient notice of the proposed order. As the recitation of the history demonstrates, in advance of the hearing the parties were well aware of the issues to be canvassed, including the question of reconstitution of the Court. No application was made to adjourn the hearing in order to consider any of the issues that arose.
28 I also reject the characterisation of the appellant's position at the hearing on 26 February 2024 as the appellant "not clearly express[ing] opposition to reconstitution". The transcript plainly demonstrates otherwise.
29 At the outset of oral submissions on 26 February 2024, counsel for the appellant submitted that two of three judges who heard the appeal could not deliver the judgment of the Court. Asked specifically what the Court should do and whether it should reconstitute, counsel for the appellant responded:
"It seems that would be the only course".
30 In exchanges that followed, counsel for the appellant submitted that it appeared two or more judges could sit as the Full Court and "we consider it impolite for us to be suggesting to the Court
4 No 1 of 2024
whether it should constitute with two or more judges." Counsel agreed that pursuant to s 14(a) of the
Supreme Court Civil Procedure Act, two or more judges could constitute the Full Court.31 Asked directly whether the Court could reconstitute as two or three judges, counsel agreed that the Court could do so. Counsel stated:
"I accept that the Court always has power to constitute or reconstitute itself, but that before delivering judgment as a Full Court, procedural fairness would need to be offered to all parties."
32 Asked if the Court was to be reconstituted, whether the appellant had any objection to the Court being reconstituted by Jago J and me, initially counsel for the appellant responded that he did not have instructions as to that issue. After counsel had obtained instructions, counsel was specifically asked whether the appellant objected to the Court reconstituting with Jago J and me. Counsel responded:
"No, but if I can put it this way, your Honour, it does not seem that it is an issue that
we'd be entitled to be heard on anyway."
33 In the written submissions filed on 5 March 2024, the appellant contended that the order reconstituting the Court, and directing that the reconstituted bench be Jago J and me, was irregular and should be rescinded. Further, it was submitted that whether or not the order was rescinded, the Court as reconstituted is not authorised by the Act to determine the appeal. The following contentions were advanced:
"4 In summary, for reasons set out below, the appellant makes the following submissions (including to avoid any suggestion of waiver, acquiescence or any other legal doctrine or principle by which the appellant might lose its right to contest the lawfulness or regularity of the process adopted by, and constitution of, the Court, in advance of its determination of the appeal):
a In circumstances where the proceeding has been heard and judgment is reserved, the Full Court as constituted to hear the proceeding should determine it. The Full Court as constituted to hear, and which heard, the proceeding comprises Jago and Geason JJ, and Martin AJ. There is a mechanism by which Geason J can sit on matters before the Court (ie with approval of the Chief Justice), and no explanation has been proffered as to why this mechanism has not been used. Further, the order for reconstitution is irregular, having been made by two only of the three members that constitute the Full Court allocated to hearing, and which heard, the appeal. b The Appellant's position is that the course described in 4.a is the only regular course available to the Full Court. Alternatively, and without in any way departing from that position, if the Full Court as constituted to hear, and which has heard, the appeal cannot determine the appeal (which is not accepted), the Full Court should be reconstituted as a Court of three new judges."
34 In summary, the fundamental contentions advanced by the appellant were underpinned by the
following submissions:
•
"Geason J is able to sit, but has declined to do so, subject to approval from the Chief Justice. This puts his Honour in a different position from, for example, a judge who is absent on long service leave or sabbatical."
•
"The process adopted for reconstitution of the Court is, in these circumstances, irregular. The relevant order for reconstitution purports to be made by an order of the Full Court that was constituted for this appeal. But the Full Court constituted for this appeal … includes Geason J …".
•
"The order for reconstitution was made other than in accordance with Part II" of the Act. "Section 20 shows that the Full Court, as constituted, having reserved its decision, is to give judgment by
5 No 1 of 2024
each of the judges who constituted the Full Court giving their opinion. It shows also that reference to 'a Full Court' must be understood, in context, where a Full Court has been constituted to hear and determine a proceeding, and has heard argument and reserved judgment, to mean the Full Court so constituted, and not some members only of it."
• This view is reinforced by r 672(6A) of the rules. • Section 15(6) of the Act is not available as a power to authorise reconstitution by the Full Court to reduce its membership from 3 to 3 of the judges who heard arguments and reserved the decision. • "The order for reconstitution having been pronounced by a judge of the Supreme Court, it is binding and valid until set aside (even if made erroneously). The appellant requests that the order be rescinded, on the basis that it was irregular…". • "Nothing in Part V confers jurisdiction or power on one or more individual members of a Full Court … to reconstitute the Full Court so as to exclude one of the members …". • Geason J's situation does not fall within the scope of the power described in Cotogno v Lamb (No 2) [1985] 3 NSWLR 221 at 223 C-D and other authorities.
35 In the alternative to its primary position, the appellant submitted that the jurisdiction of the Full Court should be exercised by a reconstituted bench comprised of three new judges who have not been previously involved in the matter. In support of that submissions, the appellant advanced the following proposition:
"There is now no way to know the extent to which the three judges comprising the Full Court conferred after reserving judgment but before Geason J went on leave or gave the undertaking to Parliament."
36 In response to the appellant's submissions, the second respondent contended that those submissions "traverse matters beyond the scope of the relevant directions, and to the extent that they do so ought to be disregarded." The second respondent contended that the appellant did not seek leave to file further submissions in respect of the Court's power to reconstitute itself, nor as to the composition of the bench if reconstitution occurred. The appellant did not seek an adjournment to take further instructions. In these circumstances, as these submissions fall outside the scope of the directions by the Court, the second respondent did not respond to them.
37 The third respondent similarly submitted that the appellant's submissions going to the constitution of the Court are outside the scope of the Court's directions, which related to submissions concerning the substance of the appeal, and should not be entertained.
Authorities
38 In R v Kelly; ex parte Victorian Chamber of Manufactures [1953] HCA 30, 88 CLR 285, the High Court was concerned with long running proceedings heard by six judges in the Commonwealth Court of Conciliation and Arbitration. Evidence commenced in September 1952 and the hearing continued for 59 days until 30 April 1953. When the matter came on for further hearing in May 1953, the Chief Judge announced that he had been informed by Foster J that Foster J had decided he was unable to continue to sit on the case by reason of other commitments. The court determined it could not form the view that Foster J was unable to continue within the meaning of the relevant legislative provision and, accordingly, the court was of the view that the remaining five members of the bench did not possess jurisdiction to complete the present hearing.
39 A submission was advanced that unless a judge became unable to continue to sit within the meaning of a particular legislative provision, apart from statute the Court was deprived of jurisdiction to continue hearing the case if one or more of the judges who commenced the hearing did not remain on the court throughout the proceedings. It was contended that such a rule applied even if sufficient judges remained to constitute the court.
40 In rejecting that submission, Williams ACJ said:
6 No 1 of 2024
"[8] … I have no doubt that, apart from statute, a court consisting of more than one judge can complete a hearing however many judges leave the court during its progress, voluntarily or involuntarily, so long as there still remains the minimum number of judges required to give the court jurisdiction to adjudicate. … In my experience it has been the practice of this court on many occasions to continue a hearing after a judge has withdrawn still leaving three or more judges on the Bench, and the reports refer to similar instances in other courts." (Authorities omitted.)
41 Webb J expressed the view that even if Foster J "did not have a valid reason for withdrawing from the hearing of the prosecutors' claim", there was "nothing in law to prevent the remaining judges of the court from continuing the hearing." His Honour dealt with the relevant legislative provision which provided that if a member of the court became "unable to continue to sit or has ceased to be a judge", the court constituted by the remaining judges possess jurisdiction to complete the hearing and make appropriate orders. Webb J was of the view that the provision was not intended to be exhaustive of instances in which a court might continue a hearing with a reduced number of judges. His Honour held that the remaining members of the court should have continued after Foster J withdrew.
42 Kitto J expressed the view that apart from any express or implied statutory provision to the contrary, "a court reduced in number during a hearing but still comprising a quorum may proceed to judgment". Taylor J was of the same view that the court, as constituted by the remaining five judges, could lawfully continue with the hearing. Fullagar J agreed with both Kitto and Taylor JJ.
43 In Elliott v Harris (1974) 8 SASR 458, two appeals were part-heard before Bray CJ and two other judges. Bray CJ went on leave and an order was sought that the hearings proceed without further delay. Of necessity, such an order would require a Full Court differently constituted.
44 A Full Court comprised of three different judges found that if a judge of an appellate court desists from hearing a case or dies during the hearing, but a quorum remains, "then that quorum can continue with the hearing and the decision of the members of the quorum will be the decision of the court …". Later in the reasons, the following passage included reference to reconstituting the court:
"We are of opinion that where an appeal of reference is part-heard before the Full Court, but it becomes impossible for all the courts so constituted to continue the hearing, either at all or without undue delay, it is competent for the remaining members of the court to continue with the hearing providing that there is a quorum of three, or of not less than two if no other member of the court is available. If the number of members sitting at the first hearing is reduced below three, and (as is the fact in this case) at least one other member of the court is available to sit with them at a resumed hearing, then it is not competent for the remaining members of the court as originally constituted to continue sitting unless they are joined by at least one other judge to bring the number up to the quorum. In that event, of course, it will be necessary for the appeal or reference to be argued de novo. And where the circumstances require an argument de novo, bearing in mind that, however constituted, the Full Court remains technically the same court, we see no bar to the court constituted by different judges from hearing the case when it is re-argued. In Wyman v Paterson [1900] AC 272, as we have mentioned, the House arranged for two surviving members to sit at the resumed hearing [with three other judges]. This would not doubt be a proper and convenient arrangement in many cases; but we do not think that this must necessarily be so.
So far as jurisdiction is concerned, when once it is established that a court may order a case part-heard in these circumstances to be re-argued before a court differently constituted (either by the addition or substitution of other members) in the case of death or retirement of one of the members of the court as originally constituted, we see no obstacle to a similar order being made where one of the members of the court as originally constituted is not available. Whether his unavailability is likely to be of such duration as to make the order desirable is a question to be determined in the exercise of the court's discretion. In our view the court should not exercise its discretion unless there is some urgency or a likelihood of some injustice to one of the parties if the resumption of the hearing is delayed. In this context it is proper to remember that justice delayed may be tantamount to justice denied."
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45 In Cotogno v Lamb (No 2) [1985] 3 NSWLR 221 a member of the Court of Appeal went on leave in August 1985 with the intention of remaining absent until February 1986. The Court had heard only a preliminary argument concerning the amendment of the notice of appeal. Although the respondent did not dispute the power of the court to reconstitute the Court to include a judge of appeal, the court determined to satisfy itself as to its power to do so. In a joint judgment, the court expressed a clear conclusion that an appellate court possessed power to reconstitute:
"The power to reconstitute an appellate court cannot be in doubt in the case where that is necessary after a judge dies, retires or is incapacitated in the midst of a hearing and before judgment is delivered. Otherwise by reason of the statutory obligation to constitute the court with three or more judges …, the facility of appeal could be entirely frustrated. Similar considerations apply in circumstances where a judge takes extended leave, although internal arrangements of an administrative kind usually avoid difficulty such as have now arisen.
The court is satisfied that it has the power to proceed to hear the appeal afresh, although constituted differently from the Court which originally commenced the hearing of the appeal and which proceeded to hear and determine the appellant's application to amend the ground of appeal."
Discussion
46 There is some force in the respondents' submissions that, in view of the appellant's conduct at the hearing on 26 February 2024, the appellant should not be permitted to contest the jurisdiction of the Court to reconstitute and proceed with a quorum of Jago J and me. However, it is unnecessary to embark upon consideration of that issue as, in my view, the appellant's opposition to reconstitution with a quorum of Jago J and me fails.
47 Subject to statutory direction or constraint, as Kirby J noted in Wentworth v Rogers (No 3) [1986] 6 NSWLR 642 at 649, "the guiding principle is the demands of justice in the particular case". Again subject to statutory provisions, the Court must possess inherent powers to meet unexpected exigencies and to ensure that the interests of justice are met. There is no particular formula to be applied as the circumstances vary infinitely.
48 Subject to statutory direction, when a judge of an appeal court becomes unavailable to continue with a hearing, or unable to deliver a judgment, in some circumstances a full re-hearing before a differently constituted bench might be required. In others, it would be appropriate for the remaining members to complete the hearing and deliver judgment. In between those examples a number of combinations are possible and appropriate. In addition, the Court possesses the power to reconstitute, either with or without an additional judge (subject to quorum requirements).
49 In the particular circumstances, the interests of justice strongly favour final determination of the rights of the parties without delay. All parties have had the opportunity of presenting full written and oral submissions, and of supplementing the written submissions concerning the substance of the appeal.
50 The resolution of the appeal had already been delayed for a significant period. A re-hearing before a differently constituted Court would result in further significant delay. As two members of the Court are agreed as to the determination of the appeal, there is no unfairness to any party in those members delivering the judgment of the Court. If Geason J was available and reached a different view, the decision of the majority would prevail as the decision of the Court.[3]
[3] Section 15(9)(a)(i) of the Supreme Court Civil Procedure Act.51 It is clear that the Chief Justice will not invite Geason J to exercise the jurisdiction of a Supreme Court judge until all charges have been finally determined. Bearing in mind that two jurisdictions are involved, final determination of the charges is unlikely to occur for many months. Plainly the interests of justice dictate that the judgment of the Court should be given as soon as possible.
8 No 1 of 2024
52 I am minded to the view that Jago J and I, sitting as the original Full Court, could have lawfully delivered judgment. However, this issue was not fully argued. With the encouragement and consent of the parties, the Court comprised of Jago J and me, ordered that the Court be reconstituted. In my view, the orders made were lawful and appropriate in the interests of justice. There is no valid reason why the final resolution of the matter should be delayed in the manner suggested by the appellant.
53 There is no unfairness attached to Jago J and me now delivering judgment. The demands of justice strongly favour such a course.
54 In the reasons that follow, I deal with the substance of the appeal. These reasons were prepared and finalised before any issues arose with respect to Geason J continuing to exercise the functions of a Supreme Court judge.
Application and Notice of Appeal
55 The application was filed on 8 April 2022[4]. Relevantly, the appellant sought:
[4] The amended application with which the trial judge dealt was filed on 4 May 2022.
"7 An order under s 27(1) of the Judicial Review Act 2000 to quash or set aside the purported certification on 6 April 2022, purportedly pursuant to s 19 of the Forest Practices Act 1985, of a forest practices plan in relation to Coupe CC105A (FPP 105A) (the new purported certification of FPP 105A). 8 Alternatively to 7, an order in the nature of certiorari to quash the new purported certification of FPP 105A. 8A An order under s 27(1) of the Judicial Review Act 2000 to quash or set aside the purported certification on 8 March 2022, purportedly pursuant to s 19 of the Forest Practices Act 1985, in relation to FPP 105A (the old purported certification of FPP 105A). 8B Alternatively to 8A, an order in the nature of certiorari to quash the old
purported certification of FPP105A.9 An order under s 27(1) of the Judicial Review Act 2000 to quash or set aside the purported certification on 6 April 2022, purportedly pursuant to s 19 of the Forest Practices Act 1985 on 6 April 2022, of a forest practices plan in relation to coupe CC119A (FPP 119A) (the new purported certification of FPP 119A). 10 Alternatively to 9, an order in the nature of certiorari to quash the new purported certification of FPP 119A. 10A An order under s 27(1) of the Judicial Review Act 2000 to quash or set aside
the purported certification on 18 January 2022 of FPP 119A.10B Alternatively to 10A, an order in the nature of certiorari to quash the purported certification on 18 January 2022 of FPP 105A (the old purported certification of FPP 105A)."
56 The trial judge delivered reasons for his decision on 9 December 2022. The appellant's amended notice of appeal was filed on 16 February 2023 and contained the following grounds:
"1
The trial judge erred in holding that the exercise of the delegated power to certify a forest practices plan under the Forest Practices Act 1985 (Tas) (the FP Act) was not conditioned on observance of the principle of natural justice that the decision maker not be in a position of apprehended bias: J [75], [79].
2 His Honour should instead have held that: 9 No 1 of 2024
(a)
the FP Act did not exclude the implication that the exercise of power was so conditioned: J [75];
(b)
the impugned decisions to certify forest practices plans in relation to coupes CC105A and CC119A (the impugned decisions) were affected by apprehended bias, and were accordingly invalid and liable to be quashed."
Facts
57 The essential facts are not in dispute. The Authority is the State instrumentality responsible for administering the Act. The harvesting of timber and the clearing of trees in Tasmania is unlawful unless authorised by a certified forest practices plan. Application for certification of a forest practices plan must be made to the Authority.
58 Sustainable Timber Tasmania (STT) is the name used by Forestry Tasmania, a corporation established under the Forestry Act 1920 and continued in existence by subsequent legislation. In 2022 STT undertook the harvesting of timber on two areas of land in accordance with two forest practices plans certified by two persons who, for the purposes of such certification, were delegates of the Authority.
59 There is no challenge to the decision of the trial judge that the delegations were valid. In issue are the decisions of each delegate to certify the forest practices plans pursuant to which STT undertook the harvesting of timber.
60 The relevant facts concerning the delegations and the rules of the certifiers were summarised
by the trial judge:
"7
The timber harvesting which is the subject of these proceedings was conducted by STT in reliance on two forest practices plans, one dated 18 January 2022 concerning an area of 42.8 ha called coupe CC119A and another dated 8 March 2022 concerning an area of 37 ha called coupe CC105A. The plan for coupe CC119A was certified on 18 January 2022 by Peter Johnstone. At the time he certified the plan, Mr Johnstone was the subject of an instrument of delegation from the Authority dated 1 January 2006. He was also an employee of STT. The plan for coupe CC105A was certified on 8 March 2022 by Jarrod Burn. At the time he certified the plan Mr Burn was the subject of an instrument of delegation from the Authority dated 20 December 2013. He was also an employee of STT.
8
STT began harvesting trees under both plans. Officers of the applicant, concerned about the harvesting activities, began to make enquiries about the certification of the plans and the instruments of delegation. On 31 March 2022, having been advised to do so in response to matters raised by representatives of the applicant, and to resolve doubts which may have existed about the validity of the original delegations, the Authority revoked the existing instruments of delegation and made new instruments of delegation for numerous persons including Mr Johnstone and Mr Burn. The new delegations to Mr Johnstone and Mr Burn are, in each case, dated 31 March 2022. On 6 April 2022 Mr Johnstone certified the plan for coupe CC119A again. On 6 April 2022 Mr Burn certified the plan for coupe CC105A again."
… 54
The evidence establishes that Mr Johnstone had been employed by STT since 1998. In his affidavit he described his position as 'Co-ordinator Harvesting and Sales'. He did not depose when he was appointed a forest practices officer but stated that he had 'held authority to certify forest practices plans since 2006', by which he was clearly referring to the delegation. He explained that STT maintains a schedule of coupes intended to be harvested during the following 18 months. Where harvesting of land is proposed, and
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no certified forest practices plan is in place, a delegate is allocated 'in consultation between forest practices officers and other STT staff, to review and certify a forest practices plan for that coupe.' Mr Johnstone's evidence was that, when acting as delegate of the Authority to consider an application for certification of a forest practices plan made by STT, he had challenged, required amendments to and refused to certify the contents of the plan on many occasions. He claimed to have done so without any repercussions on his employment and had never felt pressure to make decisions about certification in a particular way. As to coupe CC119A he said that in January 2022, he 'saw this coupe on the schedule and decided that I would review and certify the forest practices plan for that coupe myself.' Over several days he undertook a review of the contents to ensure that it complied with the Code and the Act. He carefully inspected the land and consulted with other officers including a 'special values planner.'
55 After Mr Johnstone certified the plan, harvesting commenced. He attended coupe CC119A in his capacity on six separate days during the course of the period between 19 January 2022 and 28 February 2022, at which time I infer that he observed the harvesting operations. When he became aware of the challenge to the validity of his delegation he was asked by a representative of the Authority, indirectly through another employee of STT, to recertify the plan in accordance with the new delegation. Mr Johnstone's evidence was that he reviewed the plan and, taking into account his knowledge of the area and what had occurred on the land, he satisfied himself that the plan was compliant and should again be certified.
56 When cross-examined by counsel for the applicant, Mr Johnstone agreed that before the forest practices plan was first certified he played an active part in its preparation. He did so in consultation with other members of the 'harvesting team'. The team included planners who were specifically responsible for assessing whether areas proposed for timber harvesting have special natural or cultural value, such as streamside reserves or flora and fauna habitat. The plan was submitted to a 'peer review system' in which it was assessed and approved by the heads of department within STT responsible for planning, harvesting, roads and forest management. Forest practices plan application documents were prepared from STT internal systems. Mr Johnstone agreed that he had never been asked to certify a forest practices plan which had not been prepared by STT. His employment income came from STT and he was not paid by the Authority for his work as a delegate. Mr Johnstone explained that once a forest practices plan is certified for an area and harvesting commences, his work in supervising the harvesting involved 'two hats': he acted as a forest practices officer 'first and foremost', but also as an employee of STT. He looked at the harvesting operations from 'both angles.'
57 Mr Burn was employed by STT in 2015 and at the relevant time his position was Coordinator of Planning. His employment seniority and authority within STT was equivalent to that of Mr Johnstone. His evidence about that process for identification of land proposed to be logged, and preparation and certification of the forest practices plan for that area mirrored the evidence of Mr Johnstone. Mr Burn said that he took it upon himself to review and certify the plan for CC105A because it was complex, and he had been working with STT staff since 2020 to ensure its compliance. He had inspected the land on a number of occasions. When it came to considering his decision to certify the plan he spent several days reviewing the relevant materials and again walking the site. He recertified the plan for the same reasons concerning the validity of his first delegation. He reconsidered it in detail and, in light of what he already knew, determined that no changes were required.
58 Forest practices officers are subject to a Forest Practices Officer Manual issued by the Authority. Whilst a document with that title does not seem to
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have statutory force the Act provides for The Forest Practices Board to
prepare a code of conduct for forest practices officers.59 Included in Authority's manual are statements that:
'The role of the FPO is to assist the FPA in the implementation of the Act. The primary objective of the Act is the achievement of sustainable management of Tasmania's forests with due care for the environment. The achievement of this objective is required to be as far as possible self-funding and self-regulating. The appointment of FPO's from within the forest industry is part of a co-regulatory approach.
FPO's are expected to undertake their FPO duties at the same time as they are undertaking their normal duties for their employer or client.
The FPO has a separate responsibility under the Act to the FPA that may on occasions have the potential to conflict with the FPO's responsibilities to the employer or client.
The FPO should ensure that their employer or client understands that FPO's have statutory responsibilities under the Act and that the effective functioning of the forest practices system requires that FPOs actions are consistent with the Act and FPA directions. The FPO Code of Conduct gives guidance on how these issues are to be handled.'
60 Both Mr Johnstone and Mr Burn deposed that in deciding whether to certify a forest practices plan they acted independently as delegates of the Authority. I was impressed by the evidence of both men and have no doubt that they well understand their obligations as forest practices officers and delegates of the Authority. However, the applicant does not assert that either Mr Johnstone or Mr Burn were actually biased when making the decisions to certify. The applicant submits, correctly in my view, that the evidence of Mr Johnstone and Mr Burn about their own impartiality carries no weight when considering the issue of apprehended bias. The test is one which requires no conclusion about matters which actually influenced the outcome of decisions and so no attempt should be made to inquire into the actual thought processes of Mr Johnstone or Mr Burn: Ebner v Official Trustee in Bankruptcy at [8]. That is not to say that some of the circumstances averted to by Mr Johnstone and Mr Burn about the regulatory scheme within which each decision to certify was made may not be relevant to what a fair minded lay observer, aware of all the relevant facts and circumstances, might apprehend. But even in that respect care should be taken to not give such matters undue weight.
61 As explained earlier in these reasons, STT as the Forestry corporation established by the Forestry Act 1920, is a statutory authority subject to the Government Business Enterprises Act 1995. Under that Act, s 7, the principal objectives of a Government Business Enterprise include to perform its functions and exercise its powers so as to be 'a successful business by operating in accordance with sound commercial practice and as efficiently as possible', and 'achieving a sustainable commercial rate of return that maximises value for the State in accordance with its corporate plan and having regard to the economic and social objectives of the State.' I also referred earlier, in a different context, to the role of STT as Forest Manager under the FM Act. It manages and controls forest operations in Tasmanian public forests, permanent timber production zone land, for the purpose of selling forest products. It must do so in a manner that is consistent with the principles of forest management set out in the Forest Practices Code, as a contribution to the sustainable management of Tasmania's forests. It must also make available minimum quantities of logs from permanent timber production zone land to the veneer and sawmilling industries and certain timber, including special species timber, to other prescribed industries.
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62 Both the Authority and its delegates, forest practices officers and STT have obligations under the statutory scheme to comply with the Act and the Forest Practices Code. Even so, there is potential for conflict between the commercial and business objectives of STT and the monitoring of compliance with the Act and the Code. That potential for conflict is a factor which may lead an observer to reasonably conclude that a forest practices officer who is on the one hand a delegate of the Authority but on the other an employee of STT may certify a forest practices plan in accordance with an application made by STT other than on an independent and impartial evaluation of the merits. The same may be said whether the delegate is an employee of STT or another entity which performs harvesting operations. There may exist an unconscious influence in decision-making arising from the conflicting duties to uphold strict compliance with the Act and the Code and a duty or obligation to the employer. The possibility of conflict is expressly recognised by the Authority itself in the passage in the Forest Practices Officer Manual to which I referred. Although the manual makes clear the obligation to give precedence to the duty to the Authority and to enforce the Act, in my view a fair minded lay observer might reasonably apprehend an unconscious tendency to facilitate rather than refuse or limit harvesting, because refusal or limitation might be contrary to the interests of an employer and contrary to the work done by the delegate in a different capacity to prepare the plan."
Trial Judge – Statutory Scheme
| 61 | The trial judge identified the relevant features of the legislative scheme: "The legislation | |
|
'… ensure that all forest practices are conducted in accordance with the Forest Practices Code, to provide for the issue of that Code, to provide for the creation of private timber reserves, to provide for the issue of codes of conduct for forest practices officers, and to provide for incidental and consequential matters.'
11 The term 'forest practices' is broadly defined in s 3, the interpretation provision, to mean:
'(a) the processes involved in establishing forests, growing or harvesting timber, clearing trees or clearing and converting threatened native vegetation communities; and
(b) works (including the construction of roads and the development and operation of quarries) connected with establishing forests, growing or harvesting timber or clearing trees…'
12 The Act regulates forest practices on both public and private land. It is part of a suite of legislation which implements the State's forest practices system. The objective of that system is stated in the Act, Schedule 7, which provides:
'The objective of the State's forest practices system is to achieve sustainable management of Crown and private forests with due care for the environment and taking into account social, economic and environmental outcomes while delivering, in a way that is as far as possible self-funding–
(a) an emphasis on self-regulation; and
(ab) …
(b) planning before forest operations; and13 No 1 of 2024
(c) delegated and decentralized approvals for forest practices plans
and other forest practices matters; and(d) a forest practices code which provides practical standards for forest management, timber harvesting and other forest operations; and
(e) an emphasis on consultation and education; and
(ea) an emphasis on research, review and continuing improvement;
and
(eb) the conservation of threatened native vegetation communities;
and
(f) provision for the rehabilitation of land in cases where the forest
practices code is contravened; and
(g) an independent appeal process; and
(h) through the declaration of private timber reserves– a means by which private land holders are able to ensure the security of their forest resources.'
13 The suite of legislation includes the Act, the FM Act, the Private Forests Act 1994 and the Tasmanian Forests Agreement Act 2013. The Private Forests Act, s 4, establishes a body called Private Forests Tasmania. Section 30(5) of the Act provides that the Authority shall, after consulting with Private Forests Tasmania and considering public submissions on a draft Code, issue a Code called the Forest Practices Code on the conduct of forest practices.
14 The Authority is established by s 4AA of the Act. It has a Board of Directors comprising seven directors, six of whom are appointed by the Minister and who must each hold relevant knowledge and expertise in specified fields. The other member of the Board is the person who may from time to time hold the position of chief forest practices officer, who is a member of the State Service.
15 The role, objectives, functions and powers of the Authority are respectively stated in ss 4AB, 4B, 4C and 4D. The objectives of the Authority include to act in a manner that 'best advances the objectives of the State's forest practices system': s 4B(2)(a). The Authority's functions include 'to oversee standards for forest practices plans': s 4C(e).
16 The Act also establishes an entity called the Forest Practices Advisory Council which comprises appointees with specified knowledge, expertise and experience. The Council has the objectives and functions stated in s 37B and s 37C, including to advise the Authority on review of the Act and the Code.
17 As the Forestry corporation, STT undertakes forest operations in Tasmanian public forests, more correctly referred to as permanent timber production zone land as that term is defined in the FM Act. By operation of s 7 of that Act, STT is appointed the Forest Manager for permanent timber production zone land and has the functions and powers stated in s 8 and s 9. Its functions include to manage and control all permanent timber production zone land and to undertake forest operations on permanent timber production zone land for the purpose of selling forest products: s 8(a) and (b). The FM Act, s 15, provides that the Forest Manager must perform its functions in a manner that is consistent with the principles of forest management set out in the Forest Practices Code, as a contribution to the sustainable management of Tasmania's forests. By s 16, the Forest Manager must make available minimum quantities of logs from permanent timber production zone land to the veneer and sawmilling industries as well as certain timber, including special species timber, to
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other prescribed industries. The Minister may declare specified Crown land to be permanent timber production zone land but only after having obtained advice from STT that the land is required for the supply of forest products: FM Act, s 10(1) and (3). Any land purchased or acquired by STT becomes permanent timber production zone land: s 12.
18 Any person may prepare a forest practices plan: s 18(1)(a). Applications must contain the information specified in s 18(2) including specifications of the forest practices to be carried out on the land referred to in the plan in connection with the harvesting of timber or the clearing of trees: s 18(2)(a). It is also to include an estimate of the period during which the forest practices of the plan, or phases of the plan, are to be carried out: s 18(2)(c). If a plan involves clearance and conversion of a threatened native vegetation community further specifications are required: s 18(2)(bb). All specifications required by s 18(2) must be in accordance with the Forest Practices Code: s 18(3).
19 Applications for certification of a forest practices plan are made to the Authority: s 18(1)(b). Applications must be in writing and be accompanied by the required fee and the approval of the owner of the land on which the forest practices are to be conducted: s 18(4) and (4A). The Authority may request provision of further particulars of the plan: s 18(5). The Authority, when it receives an application for certification of a forest practices plan, may certify it, may refuse to certify it, or may amend the plan in such manner as it considers necessary and certify the plan so amended: s 19(1). The Authority's power to amend the plan includes the power to insert conditions and restrictions to be complied with in the harvesting and clearance of trees: s 19(1A). Certification or refusal of certification must, unless further particulars have been requested, occur within 28 days of the receipt of the application: s 19(2).
20 It is an offence under s 17(4) to carry out, or authorise the carrying out of, timber harvesting without a certified plan and it is an offence under s 21 to contravene a certified plan."
… 25
The Authority's power to delegate functions or powers is contained in the Act, s 43. At the time the delegations were made to Mr Johnstone in 2006 and Mr Burn in 2013, s 43 was in these terms:
'43 Delegation by Authority
(1) Subject to subsection (2), the Authority may delegate any of its
functions or powers other than this power of delegation.(2) The Authority shall, by instrument in writing, delegate to any person for the time being appointed as an officer under section 38 (2), the performance or exercise of the Authority's functions and powers under Division 1 of Part III, and shall not revoke wholly or in part the delegation while he or she holds that appointment.
(3) A delegation under subsection (2) may be unconditional or, if the
instrument of delegation so provides, conditional.(4) If the delegation under subsection (2) is conditional, the delegate is, in the performance and exercise of the delegated functions and powers, subject to the direction of the chief forest practices officer.'
26 In that form, subss (3) and (4) of s 43 applied only to delegations made under subs (2). In 2019, subss (3) and (4) of s 43 were amended to expand their application
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to delegations made under both subss (1) and (2). Section 43 was in those terms when
the new delegations to Mr Johnstone and Mr Burn were made on 31 March 2022.27 First to be noticed is the distinction between the terms of subs (1) and subs (2) of s 43. Subsection (1) provides a power, which may be exercised, to delegate any of the Authority's functions and powers under the Act. By contrast, s 43(2) operates to require the Authority to delegate to a person appointed as an officer under s 38(2), "the performance or exercise of the Authority's functions and powers under Division 1 of Part III". Those functions and powers include the Authority's power under s 19 to certify, with or without amendment, or refuse to certify a forest practices plan.
28 The provisions of the Acts Interpretation Act 1931 (the AI Act) are also relevant to the contentions about the validity of the delegations to Mr Johnstone and Mr Burn. The AI Act is to be applied in the interpretation and construction of the Act except in so far as any provision is inconsistent with or repugnant to the intent, object or express terms of the Act: AI Act, s 4(1).
29 The AI Act, s 23AA, is entitled Delegation and relevantly provides:
'23AA Delegation
(1) …
(2) A delegation –(a) may be general or limited; and
(b) must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorized by the body for that purpose; and
(c) may be revoked, wholly or partly, by the delegator.
(3) A delegated function or power may be exercised only in
accordance with any conditions to which the delegation is subject.
(4) A delegated function or power that is duly exercised by a
delegate is to be taken to have been exercised by the delegator.
(5) …
(5A) …
(6) A function or power that has been delegated may,
notwithstanding the delegation, be exercised by the delegator.
(7) …
(8) In all courts and before all persons acting judicially, an instrument purporting to be executed by a delegate in the capacity as a delegate is to be received in evidence as if it were an instrument executed by the delegator and is to be taken to be an instrument executed by the delegator."
Trial Judge – Apprehended Bias
62 As to the application of the legislative scheme to the circumstances under consideration, the following passages expose the reasoning of the trial judge leading to the view that the exercise of the delegated power to certify was not conditioned on the absence of apprehended bias:
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"Natural Justice
67 As was stated by Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324, 81 FCR 71:
'The general law notion of natural justice comprises the 'impartial tribunal' requirement (the 'bias rule') and the 'fair hearing requirement' (the 'hearing rule'): see Aronson and Dyer, supra, at 387 ff.'
68 In cases in which the decision maker is not a judge, consideration of the issue must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. Here, we are not dealing with a judicial decision, but an administrative decision. It is not contended by the applicant that it had a right to be heard in relation to the decision to certify the forest practices plans, either the certification or the re-certification. The applicant had no such right. There is nothing in the legislation which recognises or suggests that a person in the applicant's position had any part to play in that decision or was a person to whom the rules of natural justice would apply. An application for certification of a plan must be in writing and accompanied by a memorandum signed by the owner of the subject land or, if the land is subject to a forestry right, the holder of that right approving the application: the Act, s 18(4). There is no requirement that an application for certification be advertised or notified. There is no provision giving any person a right to be heard in respect to the application. Where the Authority certifies a plan, refuses to certify a plan or certifies an amended plan, it must notify the applicant, the owner and the holder of any forestry right: s 19(3). There is no requirement that any other person be notified. The Act also provides for variations to a certified plan either at the application of the person who applied for certification or at the instigation of the Authority: s 23 and s 24. The Authority may also revoke a certified plan: s 24A.
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78 The implication also arises from s 43 in relation to delegations. A body corporate required by s 27(1) to lodge a three year plan with the Authority is entitled, under s 38(2), to have at least one suitably qualified person appointed as an officer under that section. By s 43(2), the Authority is required to delegate to that person its functions and powers concerning forest practices plans. Delegates and forest practices officers are accountable to the Authority in the exercise of their functions.
79 These provisions, when viewed in the context and in light of the purpose of the Act and legislative scheme, lead overwhelmingly to the conclusion that it would be artificial and unnecessary for a person exercising the delegated power to certify a forest practices plan to avoid being in a position, or acting in a way, which creates the appearance of bias. The neutrality expected in a judicial or quasi-judicial decision is not required and the nature of the decision under consideration and its statutory context is far removed from such a circumstance. There is no statutory implication or condition on the exercise of the delegated power that the decision maker not be subject to an apprehension of bias. The challenge to the certifications on this basis is not made out."
121 For these reasons, I would dismiss the appeal.
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