Bob Brown Foundation Inc v Spicer - [2024] TASSC 19

[2024] TASSC 19

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Bob Brown Foundation Inc v Spicer[2024] TASSC 19
PARTIES:	BOB BROWN FOUNDATION INC
v
SPICER, Kerri
FOREST PRACTICES AUTHORITY
FORESTRY TASMANIA t/as SUSTAINABLE TIMBER
TASMANIA
FILE NO:	3469/2023
DELIVERED ON:	31 January 2024
DELIVERED AT:	Hobart
HEARING DATE:	29 January 2024
JUDGMENT OF:	Porter AJ
CATCHWORDS:

Administrative Law – Judicial Review – Procedure and evidence – Other cases – Application for suspension of operation of administrative decision – Injunctive relief also sought – Appropriate test is that relating

to grant of interlocutory injunction.

Judicial Review Act 2000, s 19(2)(a)
Irwin v Meander Valley Council [2007] TASSC 12 referred to.
Aust Dig Administrative Law [1094]

Administrative Law – Judicial Review – Other cases – Suspension of operation of administrative decision – Injunctive relief – Decision to certify forest practices plan for logging – Where applicant argued that area to be logged the nesting or feeding habitat of endangered species of bird – Serious question to be tried – Balance of convenience – Relief granted.

Aust Dig Administrative Law [1076.5]

REPRESENTATION:

Counsel:

Applicant: A McBeth
First Respondent: M Rapley
Second Respondent M Rapley
Third Respondent B McTaggart SC

Solicitors:

Applicant: Fitzgerald & Browne
First Respondent: State Litigation Office
Second Respondent: State Litigation Office
Third Respondent: Abetz Curtis

Judgment Number:	[2024] TASSC 19
Number of paragraphs:	26

Serial No 19/2024

File No: 3469/ 2023

BOB BROWN FOUNDATION INC v KERRI SPICER,

FORESTRY PRACTICES AUTHORITY and

FORESTRY TASMANIA t/as SUSTAINABLE TIMBER TASMANIA

EDITED REASONS DELIVERED ORALLY

PORTER AJ

31 January 2024

1             Before the Court is an application to suspend, and to grant injunctive relief in respect of, the operation of a decision made on 29 September 2023 to certify a forest practices plan pursuant to s 19(1)(a) of the Forestry Practices Act 1985, (the Plan). The name of the logging coupe the subject of the plan is KD022C, an area near Kermandie in the Huon Valley. Before logging was halted by an undertaking to this Court in December late last year, very roughly about one half of the logging area of the coupe had been logged.
2            This interlocutory application relates to an originating application filed on 11 December 2022 which, pursuant to the Judicial Review Act 2000 (JRA), seeks judicial review of the certification and an order quashing it. At the heart of the proceedings is the applicant's concern for the welfare of the swift parrot. It is relevant for the purposes of the proceedings to fully note the status of that species. It is classed as critically endangered by the Commonwealth Department of Climate Change Energy Environment and Water under the Environment Protection and Biodiversity Conservation Act 1999 and is listed as endangered under the Tasmanian Threatened Species Act 1995. It is also listed as endangered in similar legislation in all other States and Territories except Western Australia and Northern Territory.
3             The first respondent, Kerri Spicer, was the decision-maker. She was the…

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] TASSC 19
Decision Date: 31 January 2024

CaseChat Overview and Summary

In the case of Bob Brown Foundation Inc v Spicer, the plaintiff, the Bob Brown Foundation Inc, sought judicial review of a decision by the defendant, Spicer, to certify a forest practices plan for logging. The primary contention was that the area slated for logging was critical habitat for endangered bird species. The case was heard by the Federal Court of Australia, which had jurisdiction to review the administrative decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The court was required to decide whether the operation of the administrative decision should be suspended pending the outcome of the substantive proceedings, and whether an interlocutory injunction should be granted to prevent the logging activities.

The court identified the key legal issues as whether a serious question to be tried existed and whether the balance of convenience favoured granting the relief. The plaintiff argued that the logging activities would irreparably harm the endangered bird species by destroying their nesting and feeding grounds. The court considered the balance of convenience and the potential for irreparable harm to the environment if the logging proceeded while the substantive proceedings were ongoing. It held that the plaintiff had demonstrated a serious question to be tried and that the balance of convenience favoured granting the relief.

The Federal Court granted the relief sought by the plaintiff. It found that there was a serious question to be tried regarding the impact of the logging on the endangered bird species, and that the balance of convenience favoured preventing the logging pending the outcome of the substantive proceedings. The court issued an injunction suspending the operation of the administrative decision to certify the forest practices plan until the substantive proceedings were concluded. This decision underscored the importance of protecting endangered species and their habitats in administrative decision-making processes.

Orders