Bob Brown Foundation Inc v Minister for the Environment

The Bob Brown Foundation Inc sought judicial review of a decision by a delegate of the Minister for the Environment, in relation to a referral made by the second respondent, MMG. The Foundation contended that the decision did not adequately protect the Tasmanian Masked Owl and sought an interlocutory injunction to restrain MMG from proceeding with certain preliminary design and assessment works. The Federal Court was required to determine whether the Foundation had established a prima facie case and whether the balance of convenience favoured the making of an injunction order.

In addressing the first issue, the Court found that the Foundation had established a prima facie case or a serious question to be tried. The Court accepted that the grounds of review relied on by the Foundation were arguable, even if some were not particularly strong. However, the Court found that the balance of convenience did not favour the making of an injunction order. The Court found that the potential injury to the Tasmanian Masked Owl, even if the proposed action proceeded, was not sufficient to outweigh the injury that MMG would suffer if an injunction were granted.

The Court further found that the strength of the Foundation's case and their chances of success were relevant factors to consider in assessing the balance of convenience. However, the Court found that, overall, the lower risk of injustice lay with MMG if an injunction were granted. The Court also found that it was not feasible to undertake a detailed examination of the material before the delegate in the context of the application for an interlocutory injunction.

The Court dismissed the Foundation's application for an interlocutory injunction and granted leave to amend the originating application for judicial review. The Court reserved costs.