Blue Derby Wild Inc v Forest Practices Authority (No 2) - [2024] TASFC 1

[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…

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: [2024] TASFC 1
Decision Date: 12 April 2024

CaseChat Overview and Summary

Blue Derby Wild Inc (the appellant) appealed to the Full Court of the Supreme Court of Tasmania against decisions of the Forest Practices Authority (the respondent). The dispute concerned the respondent's approval of a forest practices plan, which the appellant contended was unlawful. The appeal was heard by a bench of three judges, but one judge became unavailable before judgment was delivered.

The Full Court was required to determine whether the remaining two judges could lawfully reconstitute the bench to deliver judgment, and if so, whether this course of action was in the interests of justice, particularly given the potential for prejudice arising from further delay. The Court also considered whether the appellant had standing to bring the proceedings, given that the relevant legislative scheme did not explicitly provide for standing and the appellant's interest in environmental preservation was not considered sufficient to meet the "special interest" test or qualify it as a "person aggrieved." Furthermore, the Court had to assess the validity of the exercise of delegated power by the respondent, specifically in relation to allegations of apprehended bias, and whether the legislative scheme excluded requirements for the exercise of such power to be free from apprehended bias.

The Court held that the reconstitution of the bench by the remaining two judges was lawful and appropriate in the interests of justice, as the delay occasioned by awaiting the original bench's full composition would be prejudicial. Applying the "special interest" test, the Court found that the appellant's interest in environmental preservation was insufficient to confer standing, and it was not a "person aggrieved" under the relevant legislation. The Court also determined that the legislative scheme excluded the usual requirements concerning apprehended bias in the exercise of the delegated power.

Consequently, the appeal was dismissed.

Orders