Blue Derby Wild Inc v Forest Practices Authority & Ors
[2024] HCATrans 29
[2024] HCATrans 29
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Hobart No H1 of 2024
B e t w e e n -
BLUE DERBY WILD INC
Applicant
and
FOREST PRACTICES AUTHORITY
First Respondent
FORESTRY TASMANIA T/AS SUSTAINABLE TIMBER TASMANIA
Second Respondent
ATTORNEY‑GENERAL FOR THE STATE OF TASMANIA
Third Respondent
Application for special leave to appeal
GAGELER CJ
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA BY VIDEO CONNECTION
ON TUESDAY, 23 APRIL 2024, AT 9.30 AM
Copyright in the High Court of Australia
____________________
GAGELER CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.
MR E.M. NEKVAPIL, SC appears with MR A. ALEKSOV and MS A.P.A. BEST for the applicant. (instructed by Bleyer Lawyers Pty Ltd)
MR B.R. McTAGGART, SC appears with MS B. QUARTARARO for the second respondent. (instructed by Abetz Curtis Lawyers & Advisors)
MR M.C. RAPLEY appears with MR B.T. CONLAN for the third respondent. (instructed by State Litigation Office, Tasmania)
GAGELER CJ: I also note a submitting appearance by the first respondent. We propose to hear the special leave application separately from and in advance of the injunction application. Mr Nekvapil.
MR NEKVAPIL: If the Court pleases, thank you very much. Your Honours, the rule for standing to enforce laws regulating destruction of our natural environment controls the availability of judicial remedies to enforce those laws and thereby protect our natural environment from unlawful destruction.
We submit that the Court should grant special leave to consider whether the ACF test remains the appropriate rule. Application of the ACF test in practice gives rise to peculiar questions on which views may and do differ, such as whether an affidavit includes enough detail about forest surveys an incorporated association has conducted, or comparison of shopping lists of activities as between cases where standing was afforded and those where it was not.
EDELMAN J: Mr Nekvapil, is your submission ultimately that, if we were to overturn the ACF decision, we would replace it with a rule of open standing?
MR NEKVAPIL: Your Honour would have seen from our first special leave question that – we have proposed two sub‑questions, if I can put it that way. I really propose to focus on the second, which concerns an evolution of the ACF test to recognise a shift in the nature of the interest that the Australian community has in our natural environment so that, in effect, one could characterise it as open standing subject to control mechanisms – and I will come back to address your Honours on that – but it is really, in effect, recognising the shift in the nature of the interest that we have in our natural environment being destroyed only in accordance with the will of the people expressed through Parliament.
We would submit that, taking this case as example, the applicant in this case is in no sense a “crank” or “busybody”. I looked those terms up in the Oxford English Dictionary and they are, in effect, disparaging terms to describe someone who is troubling a defendant with a peculiar or idiosyncratic cause.
EDELMAN J: Is not one difficulty for your case paragraph 106 of the Court of Appeal’s reasons? Whether one uses pejorative terms or not, there just is not evidence, according to the Court of Appeal:
as to the activities of the appellant, as opposed to individual members –
MR NEKVAPIL: Well, your Honour, that is an evaluation or analysis of the evidence. We have given your Honours Ms Morris’ affidavit, exhibited to an affidavit of Ms Bleyer. That affidavit contains, in our submission, lengthy and compelling records of a range of relevant activities, including forest surveys, engagement with the second respondent, obtaining keys to go into the forest – a whole range of activities. In almost every case, as far as I could see, reading through that material, there is a reference to Ms Morris as a representative of Blue Derby Wild.
We would submit that to the extent that 106 distinguishes between individuals and the incorporated association, that is a mode of analysis which is inconsistent with a range of other intermediate appellate and Full Court decisions and the approaches found there, including, for example, Kinglake, a decision of the Victorian Court of Appeal, and decisions of the Western Australian Full Court and Court of Appeal. That discrepancy in approach itself requires analysis. Really, we say that those kinds of questions arise from what is now an inapt – or a metaphor which is no longer fit for purpose, which can be located in the reasoning of Justice Gibbs at pages 530 to 531 of ACF.
Your Honours, the case that the applicant brought was a serious case with a serious object founded on a serious concern. The case concerned apprehended bias: an employee of the second respondent drew plans for logging an area of native forest, then changed hats and certified those plans as delegate of the regulator. That case was brought forward for the consideration of the Supreme Court. The applicant was represented by experienced lawyers and conducted the proceeding in a responsible, timely and efficient manner.
When the applicant was ordered by the Chief Justice below to pay a sum by way of security for the costs of the appeal, it did so. Had the appellant been vexatious, had the proceeding been for an improper purpose, had the claim been doomed to fail, or had the applicant failed to pay security when ordered to do so, the court had ample powers designed to deal with the relevant issue of concern being those powers available in all civil proceedings, and those powers enabled it to dismiss the proceeding at an early stage in respect of that particular problem.
Further, we would submit that at least the Court should consider this, whether the standing rule furthered the administration of justice in any practical sense. Your Honours would have noted that the primary judge, Justice Pearce, held – it is at paragraph 66 of his Honour’s judgment, which is in 71 of the Full Court’s judgment – that:
The issue of standing does not fall to be determined unless the basis of the application for relief is established.
But what if the application for relief had been established? What if he had said, I am satisfied that those certificates are vitiated for apprehended bias, but I am not going to grant any relief because I find that the plaintiff lacked standing. Could the second respondent then go ahead and log, knowing that the Supreme Court had concluded the certificates were invalid but dismissed the proceeding for want of standing? Nor is that dilemma solved by the approach of the Full Court, which is to decide both standing and the substantive ground, because what if the Full Court had concluded the certificates were vitiated but the plaintiff lacked standing? It is the same problem.
The only practical way to avoid the dilemma is to seek to have standing determined as a preliminary question, as occurred in Kinglake; on a pleading summons, as occurred in ACF; or, perhaps, on summary dismissal. But in ACF, this Court held that there is a discretion whether to hear standing as a preliminary question. We would observe, by way of example, that in another proceeding heard by the Victorian Court of Appeal with Kinglake, Warburton Environment v VicForests [2021] VSCA 194, the court refused an application for leave to appeal from a decision to not order standing to be heard as a preliminary question. In other words, the court held that standing should go over to trial, and that is within the discretion recognised in ACF.
Even hearing standing as a preliminary question, although it resolves the dilemma, can give rise to other issues. Kinglake is a good example of that, because by the time the defendant was able to elevate the question of standing to this Court, the underlying proceeding had finished; the matter had gone to trial and then been discontinued on the morning of trial. We would submit that this Court should consider whether the benefits of the current mechanism outweigh the burden of an additional substantive issue being added to litigation that otherwise only comprises of one or two fairly straightforward issues.
This case is a good example, your Honours, because the actual question of apprehended bias is a fairly straightforward question that could have gone to trial. The question of standing in terms of the amount of evidence, the complexity of the test as applied to the evidence, constituted in a rough sense, 50 per cent of the issues at trial, once it was added in.
Now, your Honour Justice Edelman, I mentioned the shift in the nature of the interest, and we say that there has been a massive shift since 1980 in our understanding of the significance of what remains of our natural environment as having intrinsic value, as our common heritage, as a resource, as something that should be protected for future generations, and ultimately, as a matter of survival. That shift is evident in international agreements, domestic legislation and the rising volume of litigation.
EDELMAN J: Is that submission by way of saying that, because of the special or the important nature of the environment, that what is described as a “mere intellectual or emotional concern” by Chief Justice Gibbs is something that should now be recognised as a special interest in that context?
MR NEKVAPIL: It should be, yes, your Honour. Or, at least, it should be recognised as a sufficient interest.
EDELMAN J: Yes. Well, it may be that a test of sufficient interest is really what was contemplated in ACF anyway. I mean, the Court quoted from Justice Mason, who said:
what is a sufficient interest in one case may be less than sufficient in another.
MR NEKVAPIL: I accept that, your Honour, and we do not want to argue about verbiage. It is really the characterisation of a distinction between what does constitute an interest in a specific area of environment and a “mere intellectual or emotional concern”, and his Honour Justice Gibbs, at page 526, described the interest of an ordinary member of the public as being “in upholding the law”. Our point is that the interest of a member of the community who is prepared to undergo the rigours and risks of litigation to put forward a serious case that our environment is being unlawfully destroyed – unlawfully – is no longer accurately described “simply”. That interest is no longer simply an interest:
which any member of the public has in upholding the law –
In other words, the focus of the interest is no longer properly to be characterised as “in upholding the law” as an end in itself, but rather it is an interest in protecting our common heritage from destruction other than as authorised by the people through Parliament.
GAGELER CJ: Mr Nekvapil, do you accept that the interest of the applicant needs to be in some way distinguished from the interest of every other member of the community?
MR NEKVAPIL: We would ask the Court to consider that question on an appeal. There may remain some point of distinction, and one way we have suggested we might argue it is by reference to observations in Unions NSW, and also the observations in paragraph 39 of Bateman’s Bay, is by reference to the need for foreseeable consequences for the parties. But we do say that the test for special interest as articulated by his Honour Justice Gibbs is no longer apposite because underpinning it are concepts of the kind of interest a person might have in protecting the environment which do not reflect the reality of our interests today.
GAGELER CJ: Mr Nekvapil, exactly how would you put the standing argument?
MR NEKVAPIL: Your Honour, we have sought in our special leave application to do that in paragraph 11. It is suggested that Unions NSW may support an adjustment to the standing requirement to require that the claimant party be seeking relief directed to quelling or resolving a controversy between the parties about a legal right, duty or liability, which would produce real and foreseeable consequences for the parties. But it could also be done by simply recognising that the interest of a genuinely concerned individual or corporate entity in protecting the natural environment from destruction, unlawfully – where there is a serious – that is, a case with real prospects on unlawfulness – constitutes a sufficient interest.
GAGELER CJ: That is just open standing, is it not?
MR NEKVAPIL: In environmental matters, where what is concerned is protection of our natural environment, by reason of the shift in interests, that would constitute a sufficient interest, subject to all of the control mechanisms that are available. That is, in effect, how we read what is suggested in paragraph 39 of Bateman’s Bay. In other words, it is a shift away from the metaphor which is constantly utilised, which Justice Gibbs deployed in ACF 44 years ago, because we say that in 1980 the ordinary member of the public was less conscious of the finite and vulnerable character of what remains of our natural environment than their grandchild would be today.
It simply no longer makes sense to speak of the nature of that interest of an ordinary member of the public being one who is prepared to take the risks of litigation as a “mere intellectual or emotional concern” now that they more clearly appreciate what we have lost, what we have left, and what that means. Yes, your Honour Justice Gordon?
GORDON J: Can I ask, in relation to that, how this case, then, is even an appropriate vehicle, or a suitable vehicle, to contend that? Because the findings, as I understand it, are the applicant has no substantial assets, there was no clear evidence as to its membership, or meetings or minutes regarding its decision to undertake activities. You have raised the criticism, I think, of the decision taken that they were not at all happy with the detail you had given of the surveys that had been undertaken. So, we are left with, as I understand it, an entity where we are not actually sure what the entity does or is, and we are left for reliance on social media and lobbying. Is that a fair description, and if so, why is that a suitable vehicle to even undertake this kind of analysis?
MR NEKVAPIL: Your Honour, as a starting point, we would not accept his Honour Acting Justice Martin’s description or analysis of our evidence as accurate to the affidavit, but I will not trouble your Honours with that here. That would be a subject for close analysis during the appeal. We have given your Honours the affidavit.
The simple point is that an affidavit of that kind – which detailed extensive activities, including forest surveys – is precisely the kind of affidavit which has supported standing in a range of recent environmental cases, including, by way of close analogy, a series of cases in the Victorian Supreme Court over recent years concerning precisely the lawfulness of forestry operations.
EDELMAN J: Mr Nekvapil, this standing question arises in this case under section 17 of the Judicial Review Act, does it not?
MR NEKVAPIL: Concerning a person aggrieved?
EDELMAN J: Yes.
MR NEKVAPIL: It may, but it has been analysed in terms of ACF and Kinglake, which concerned ACF. So, to the extent that it turns on a statute, it has been conducted on the basis that the statute has an equivalent meaning to the test in ACF.
EDELMAN J: How do you deal with the question of interpretation of a statutory provision that itself was set against 20 years of authority that had built upon the decision in ACF?
MR NEKVAPIL: Your Honours, the test for standing has become somewhat merged as between equity – or the common law, or however you want to characterise the sort of standing at issue in ACF – and various statutory formulations which have followed it. We would submit that, on a close analysis of the – first of all, I am not sure, and I just do not have time to check this, that it is confined to person aggrieved, under the statute.
If it is, we would submit that the question of standing has, in effect, been dealt with uniformly, whether at general law or under statutes, and the underpinnings of the test are – if they remain no longer relevant – capable of being renovated in a way that does not depart from the need for a sufficient interest, but without importing into the statutory requirements the kind of metaphorical analysis that is involved in the ACF test.
I should say, the ACF test – it is just that everyone always refers to Justice Gibbs. Of course, there were other judgments and there are other ways of approaching of it, it is just that the way it has come to be interpreted and applied is by reference with a primary focus on pages 526 and 530 to 531 of Justice Gibbs. So, it is possible, we would say, to reconsider the notion of an interest in the environment and therefore the nature of a sufficient interest without doing violence to statutory provisions on the basis that they intended to import precisely the metaphorical and conceptual analysis in ACF.
GAGELER CJ: Mr Nekvapil, your time is up. It would be of assistance if you could indicate, very briefly, whether you press the other proposed grounds of appeal.
MR NEKVAPIL: We do, your Honour.
GAGELER CJ: Thank you.
MR NEKVAPIL: And we rely on our written material on that.
GAGELER CJ: Yes, thank you very much. Mr McTaggart.
MR McTAGGART: If the Court please. By virtue of section 35A of the Judiciary Act, the Court shall have regard to whether the proceedings involve a question of law of public importance. We submit that the proceedings do not, and that the applicant has not demonstrated any error below.
If I could seek to deal with the special leave questions; firstly, standing. The special interest test or criteria referred to by Justice Gibbs in ACF was enunciated some approximately 44 years ago. It has continued to be applied since that time. The rationale for the standing rule is enunciated in Onus v Alcoa by Chief Justice Gibbs in the following terms:
if standing is accorded to any citizen to sue to prevent breaches of the law by another, there exists the possibility, not only that the processes of the law will be abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to very great cost and inconvenience in defending the legality of his actions.
So, the rationale extends beyond “busybodies and cranks”, and on that rationale, the interests of an applicant need to be distinguished from other persons in the community. As to the application of the test, what amounts to a sufficient interest will, of course, vary according to the nature and subject matter of the litigation, and so much depends upon the nature of the relief which is sought. As Justice Stephen said in Onus v Alcoa:
the criterion of “special interest” –
involves:
in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff’s relationship to that subject matter.
In Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), which was referred to in Bateman’s Bay Local Aboriginal Land Council, Justices Gaudron, Gummow and Kirby referred to the flexibility of the rule, and referred to its application taking into account:
the exigencies of modern life as occasion requires.
It was explained in Bateman’s Bay that the:
criterion is to be construed as an enabling, not a restrictive, procedural stipulation.
The criterion has been applied and reaffirmed on many occasions over the 44 years since ACF, including by the Court as recently as last year in Unions NSW and Hobart International Airport v Clarence City Council. They are all decisions which postdate the special leave application in VicForests v Kinglake, which the applicant relies upon, which was decided in 2022.
GAGELER CJ: What do you say about that case?
MR McTAGGART: Pardon? I am sorry, your Honour.
GAGELER CJ: It is put against you that there is a tension between the decision of the Full Court in the present case and the reasoning adopted in Kinglake. What do you say about that?
MR McTAGGART: I submit that there is no tension. Because of the flexible nature of the test, the context, that is, the factual background of the case and the particular statutory provisions dictate the outcome of the test as to standing. So, Kinglake is in no way – dealt with a different factual scenario and a different statutory context, so there is no conflict between that and the Full Court.
EDELMAN J: What do you say about Mr Nekvapil’s point that there was affidavit evidence – I take it, not just in this Court, but in the Full Court – of a connection between all of the activities of the relevant persons and the corporation itself.
MR McTAGGART: Well, that was not the finding of Acting Justice Martin. Acting Justice Martin, having gone through that extensive affidavit, could not differentiate between what activities Ms Morris conducted personally or on behalf of the unincorporated association, or on behalf of the incorporated association. In my submission, it renders it an inappropriate vehicle for this appeal, when the Court would, effectively, be required to trawl through the evidence to see whether it was sufficient to justify standing.
The test of special interest is deliberately and appropriately flexible. It is fact‑ and context‑specific, including the statutory context. Differing results which are pointed to by the applicant, in my submission, reflect simply the application of the test to different factual scenarios and statutory contexts, and do not raise a controversy which this Court needs to consider. If, as suggested, there is a shift in the community’s understanding of the importance of the natural environment, that as a rationale for reconsidering the utility of the criteria of special interest only deals with one aspect of public law and does not provide a rationale for a change in standing in other areas.
The criterion is flexible enough, in my submission, to adapt to suggested change in community views, including in relation to the environment. In any event, it remains well‑settled and fit for purpose. There is no issue of public importance in revisiting the test.
The test proposed by the applicant is unclear. The applicant relies on either paragraph 10 of the special leave application or paragraph 11, or both. Paragraph 10 refers to:
whether the proceedings should be dismissed because the right or interest of the plaintiff was insufficient to support a justiciable controversy, or should be stayed as otherwise oppressive, vexatious or an abuse of process”.
Paragraph 11 refers to that a claimant party seeking:
injunctive or declaratory relief to enforce the public law . . . be seeking relief directed to quelling or resolving a controversy between the parties about a legal right, duty or liability, which would produce real and foreseeable consequences for the parties.
It is admitted that the proposed test or tests are:
vague in content and uncertain of application. It provides little practical assistance in determining the sufficiency, or even the existence –
of standing:
in a particular case”.
The proposed tests do not have the benefit of 44 years of case law which has been developed under ACF. As the applicant would have the Court reconsider ACF, then, the factors in John v Federal Commissioner of Taxation are relevant and are not met. In summary, they are: do the earlier decisions rest upon a principle that is worked out in successive cases? We say yes. Secondly, is there a:
difference between the reasons of the Justices constituting the majority in one of the earlier decisions.
We say no. Thirdly, has the earlier decision not achieved a useful result but rather caused “considerable inconvenience”? Again, we would say no, flexibility has allowed it to be adapted. Fourthly, have the earlier decisions been acted upon in such a manner as to mitigate against reconsidering? We say yes. The criterion has been applied across the land, including recently, as I have previously submitted. Justice Jagot wrote recently, in Vanderstock v Victoria:
This Court may overrule its previous decisions. In doing so, however, it adheres to a principled decision‑making framework reflective of the law’s objectives of consistency, predictability and fairness.
If I could turn to the standing issue, insofar as it relates to incorporated associations.
EDELMAN J: Mr McTaggart, just before you do, is this just a question of reopening and potentially overruling the ACF decision, or is there a statutory question based on the 2000 statute which requires interpretation of section 17?
MR McTAGGART: It is both, your Honour. The applicant sought both relief under section 17 of the Judicial Review Act but also relief in the nature of certiorari at first instance. So, your Honour’s question to my learned friend is still of relevance insofar as it relates to the application for relief under the Judicial Review Act, in that section 17 was enacted in the context of ACF and the subsequent decisions that applied it.
In relation to standing and incorporated associations, there is no divergence between courts as to the legal principle, with respect to pre‑incorporation conduct of members of incorporated associations. The conduct of members of a pre‑existing unincorporated association, engaged in as a collective for the purpose of a common endeavour, is relevant. That has been held so in Victoria, and Acting Justice Martin at 106 of his reasons accepted that was the position.
The applicant’s complaint is really about the Full Court finding that the applicant had failed to adduce sufficient evidence to establish standing. Acting Justice Martin set out an extensive passage from Justice of Appeal Niall in Binginwarri v VicForests as to incorporation and standing at 105 of his reasons. At 106, he relied upon some of the principles enunciated in that case and accepted that the activities of individual members remains relevant.
Due to the deficiencies in the evidence led by the applicant, a differentiating between the activities of individuals and those of the association pre‑ and post‑incorporation and whether the members’ conduct was authorised by the association, and as to the applicant’s membership, activities and substance, render this case an unsuitable vehicle for the principles around pre‑incorporation conduct of members of an incorporated association to be considered by the Court.
Acting Justice Martin did not look at standing purely on the basis that the subject matter of the litigation was not the lawfulness of the logging. He considered the case that that was the subject matter of the litigation in accordance with Kinglake, and he still found, on the evidence, the applicant did not have standing in his reasons at paragraph 119. At paragraphs 114 to 118, Acting Justice Martin was not suggesting that there needed to be a precise concurrence between the special interest and the mechanism giving rise to the alleged unlawfulness.
He was, in my submission, merely pointing out that the applicant’s challenge was not to the lawfulness of logging with a valid plan. That is, a plan that was untainted by the alleged apparent bias. In respect of this question, it is submitted no error is demonstrated and no questions of law of public importance arise.
In respect of the constitution of the court, the third question posed by the special leave application, set out at paragraph 6, is:
Where an appeal has been heard by an intermediate appellate court constituted by a bench of multiple members, and where, while judgment is reserved, one member of that bench refuses to continue to participate in the determination of the appeal, can the remaining members of the bench deliver judgment in the appeal, and if so, in what circumstances?
The framing of the question in that way takes it outside what actually happened in this case. The appeal was argued before the Full Court, constituted by Justice Geason, Justice Jago and Acting Justice Martin. While the judgment was reserved, Justice Geason ceased sitting as a Supreme Court judge, pending the determination of criminal charges against him.
Justice Geason gave an undertaking that he would not sit in respect of any matter or seek to exercise any powers of a judge of the Supreme Court while those charges remained pending, except to the extent that the Chief Justice of the Supreme Court of Tasmania might request. That undertaking was given to the Parliament of Tasmania. The Chief Justice made it clear, in published reasons for decision delivered on 1 March 2024, that he did not consider it appropriate to make any such request to Justice Geason.
The court wrote to Justice Geason, on 23 April 2024, seeking his advice as to whether, in the circumstances, he intended to continue as a member of the Full Court. He did not respond. Justice Jago wrote to the parties on 23 April 2024 and sought to ‑ ‑ ‑
GAGELER CJ: Mr McTaggart, we have read this chronology.
MR McTAGGART: Thank you. That correspondence is significant, in my submission, because Justice Jago put the applicant on notice of possible reconstitution of the court or possible delivery of judgment by the remaining two members of the court, or any other options that they might seek to make submissions on. The applicant’s response failed to engage with the letter, and the parties appeared on 26 February, at which time the applicant consented to the court being reconstituted, consisting of Justice Jago and Acting Justice Martin, and consented to the court being comprised of those judges. Subsequently, judgment was delivered.
The inherent power of the court to reconstitute itself in the absence of a member is well‑settled. The authorities for these propositions were given thorough and extensive consideration at paragraphs 38 to 53 of Acting Justice Martin’s reasons. No authorities to the contrary to those considered by Acting Justice Martin, in his reasons as to the court’s power to deliver judgment as two judges or to reconstitute the court in the circumstances, are referred to by the applicant in the special leave application. The applicant was on notice – as I have said, by the letter of 23 February – that the court sought submissions. At the hearing, they consented to the course taken. That conduct falls within the conduct held to be acquiescence in Wentworth v Rogers (No 3). No error of approach is demonstrated, no questions of law of public importance arise.
In respect of apprehended bias, the applicant seeks to raise Hurt as in support of a change in principle of the application of the principle of legality, suggesting that there has been a change to a dynamic nature of that principle from a binary. A consideration of that decision shows that Justices Edelman, Steward and Gleeson referred to Stephens v The Queen, that is a case involving the presumption against retrospectivity, and Mann v Paterson, which is a decision of the Court in 2019 which did deal with the principle of legality.
In turn, Mann, at 159, Justices Nettle, Gordon and Edelman referred to a dynamic principle of legality, and in turn referred to authority of the Court dating back to 1990. Thus, this is not a new and developing
principle, and does not give rise to any questions of public importance. If the Court please, they are my submissions.
GAGELER CJ: Thank you very much, Mr McTaggart. Mr Rapley, do you have anything to add?
MR RAPLEY: Your Honour, only very briefly. In relation to the matter of standing, we say that it would be a policy decision for Parliament to change the scope of standing, for example, as they have done in the EPBC Act, in section 487, to expand the class, and that it should be left alone. There is not a public interest in considering what has been a well‑applied test with over 40 years. We have no other submissions, apart to join with Mr McTaggart’s submissions in relation to the second respondent, unless, of course, your Honours have any questions for us.
GAGELER CJ: Thank you Mr Rapley. Mr Nekvapil.
MR NEKVAPIL: Thank you, your Honours. If I could just deal with two matters by way of reply. Firstly, in respect of submissions about the statute, both the Judicial Review Act and the EPBC Act, and coming back to the question that your Honour Justice Edelman asked me, the relief that was sought is set out at paragraph 55 of the judgment, and does, as Mr McTaggart already indicated to your Honours, include in each case alternatively an order in the nature of certiorari, that is, invoking a State Supreme Court’s supervisory jurisdiction.
Whether it is certiorari or whether it is equitable relief of the kind that was sought in ACF v The Commonwealth, the fundamental question of the circumstance – or the correspondence between standing and the availability of the court’s processes to adjudicate a claim of unlawful destruction of the environment is the same, and because it has been conducted on the basis of the ACF test, this is a suitable vehicle to consider those questions.
Just in terms of the reliance that Mr McTaggart places on the reasoning of Acting Justice Martin concerning the evidence, we would submit that those are not properly characterised as findings in the strict sense, given that there was just one affidavit and no cross‑examination and any contradictory evidence. It is really in the nature of evaluation or analysis.
Unless your Honours tell me you would not be assisted by it, I propose to take your Honours very briefly to the affidavit, so that I can just demonstrate why we say that that would be at least a sufficiently arguable case on appeal as to whether that analysis was appropriate. Your Honours will find it in an affidavit of Ms Bleyer dated 19 April filed in this Court, and it exhibits the affidavit of Ms Morris, which commences on page 5, using the High Court’s page numbers at the bottom of the page. At page 7, using the High Court’s page numbers, your Honours see in paragraph 3, the “objects”, which include relevant objects, and paragraph 4:
Since its inception, Blue Derby Wild has engaged in the following activities:
(a)carrying out many threatened species surveys in forest near Derby –
Just pausing there, in Kinglake, the conduct of five threatened species surveys was regarded as being the most important of any of the factors by Justice Richards, and then that was approved by the Court of Appeal. So, the proposition that there is not enough detail in circumstances where there was no cross‑examination really does, in our submission, either demonstrate a test that is not fit for purpose, if the availability of the Court’s processes can depend on providing more detail in paragraph 4(a) of an affidavit, or a divergence of outcomes – which we would say, in truth, it is – as between the approach taken by the Court of Appeal in Kinglake and the Full Court here.
Then, your Honours, there is then a list of extensive activities engaged in by Ms Morris, and if I could just take your Honours to – probably just one example, but, really, this is indicative. If your Honours look, for example, to page 263 of the High Court document. This is in the middle of a newspaper article in The Mercury, and your Honours see, about halfway through the page:
Blue Derby Wild co‑ordinator Louise Morris claimed her group’s in‑forest audits –
And then you see a photo, split over the page, of Ms Morris as Blue Derby, so that under the photo:
Ms Morris said Blue Derby’s Wild’s option –
And that is, obviously, contemporaneous with the litigation, but were your Honours to go through this, you will find, repeatedly, the use of a “bluederbywild@gmail” email address, Blue Derby Wild social media pages, et cetera. So, we would say it is just a good case on appeal that it is not a correct analysis.
If the Court pleases.
GAGELER CJ: Thank you, Mr Nekvapil. The Court will adjourn to consider the course it will take in this matter.
AT 10.17 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.24 AM:
GAGELER CJ: We see no reason to doubt that the order of 26 February 2024 reconstituting the Full Court was an order which was available in the circumstances to be made within the inherent power of the Supreme Court of Tasmania. Having regard to the evidence led at trial and on the existing state of the law, we see insufficient reason to doubt the correctness of the conclusion of the Full Court that the applicant failed to establish standing to warrant the grant of special leave to appeal on the ground of standing.
The obscurity of the evidence concerning the nature and extent of the applicant’s activities together with the circumstance that the proceeding at first instance was brought under the Judicial Review Act would make an appeal in this matter an unsuitable vehicle in which to engage in a reconsideration of the principles of standing at general law.
The application for special leave to appeal is dismissed with costs, including the costs of the now‑redundant application for an injunction.
The Court will now adjourn until 10.00 am on Tuesday, 7 May 2024.
AT 10.26 AM THE MATTER WAS CONCLUDED