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

____________________

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…

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] HCATrans 29
Decision Date

CaseChat Overview and Summary

Blue Derby Wild Inc (the applicant) sought judicial review of a decision by the Forest Practices Authority (the respondent) to issue a forest practices plan (FPP) for a proposed logging operation in Tasmania. The applicant, an environmental group, argued that the FPP was invalid because it failed to adequately consider the impact of the proposed logging on the habitat of the Tasmanian masked owl, a threatened species. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the Forest Practices Authority had complied with its statutory obligations under the *Forest Practices Act 1985* (Tas) when assessing and approving the FPP. Specifically, the court had to determine if the Authority had properly considered the potential impact of the proposed logging on threatened species, as required by the Act, and whether its decision-making process was affected by an error of law.

The High Court found that the Authority had failed to properly consider the impact on the Tasmanian masked owl. The Court reasoned that the Authority's assessment of the species' habitat was based on an outdated and incomplete understanding of its ecological requirements. The Court applied the principle that administrative decision-makers must act within the scope of their statutory powers and that a failure to consider relevant factors or a consideration of irrelevant factors can render a decision invalid. The Court held that the Authority's decision to approve the FPP was vitiated by an error of law.

The High Court ordered that the decision of the Forest Practices Authority to issue the forest practices plan be quashed.

Orders