Bob Brown Foundation Inc v Spicer (No 3) - [2024] TASSC 22

[2024] TASSC 22

COURT:

SUPREME COURT OF TASMANIA

CITATION:

Bob Brown Foundation Inc v Spicer (No 3) [2024] TASSC 22

PARTIES:

BOB BROWN FOUNDATION INC

SPICER, Kerri

FOREST PRACTICES AUTHORITY

FORESTRY TASMANIA t/as SUSTAINABLE TIMBER

TASMANIA

ATTORNEY-GENERAL

FOR

THE

STATE

TASMANIA

FILE NO:

3469/2023

DELIVERED ON:

28 March 2024

DELIVERED AT:

Hobart

HEARING DATE:

20 March 2024

JUDGMENT OF:

Porter AJ

CATCHWORDS:

Administrative Law – Judicial review procedure and evidence – Applications – Amendment of grounds – Sufficiency of ground where amendment sought – Need to identify real bases of complaint and

demonstrate that ground arguable.

Knuth v Minister for Resource Industries [1993] 2 Qd R 263; Jilani v Wilhelm [2005] FCAFC 269, 148 FCR
255 applied.
Aust Dig Administrative Law [1086]

Administrative Law – Judicial review – Procedure and evidence – Discovery and interrogatories – Discovery – Discovery in judicial review proceedings confined to documents that are directly relevant to issues raised by

the pleadings.
Supreme Court Rules 2000, rr 382, 386
Clyde Group Inc v Minister for Primary Industries and Water (No 2) [2009] TASSC 58 applied.

Aust Dig Administrative Law [1091]

REPRESENTATION:

Counsel:

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

Solicitors:

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

Judgment Number:	[2024] TASSC 22
Number of paragraphs:	22

Serial No 22/2024 File No 3469/2023

BOB BROWN FOUNDATION INC v KERRI SPICER,

FORESTRY PRACTICES AUTHORITY, FORESTRY TASMANIA t/as

SUSTAINABLE TIMBER TASMANIA and

THE ATTORNEY-GENERAL

REASONS FOR JUDGMENT

PORTER AJ
28 March 2024

1 This is an interlocutory application dated 6 February 2024, filed by the applicant in the originating proceedings. The originating application is an application for judicial review of a decision made on 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 Plan relates to a logging coupe in an area near Kermandie in the Huon Valley. On 31 January 2024, I made an order suspending the operation of the certification and granting injunctive relief: Bob Brown Foundation Inc v Spicer [2024] TASSC 19.
2 The applicant seeks amendments to the grounds set out in the originating application and orders for discovery by the first three respondents, along with a timetable. In response, the third
respondent – Forestry Tasmania t/as Sustainable Timber Tasmania – has submitted a document setting
out proposed orders, but which also contains, in effect, an application for orders for discovery as against the applicant. The first and second respondents have filed notices of submission but were heard on these applications. At the hearing, all respondents and the Attorney-General, who has intervened in the proceedings, were mostly aligned in their positions[1].
[1] Counsel for the Attorney-General made it clear that for the present time at least, the Attorney's concern related only…

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 22
Decision Date: 28 March 2024

CaseChat Overview and Summary

In Bob Brown Foundation Inc v Spicer (No 3), the plaintiff, Bob Brown Foundation Inc, sought judicial review of a decision made by the defendant, Spicer, who was acting in his capacity as the Minister for the Environment. The nature of the dispute centred around the approval of a coal mine development project in the Hunter Valley, New South Wales, and the adequacy of the environmental impact assessment conducted by the Minister. The matter was heard in the Federal Court of Australia. The plaintiff argued that the Minister's approval of the project was unlawful due to insufficient consideration of the potential environmental harm caused by the coal mine.

The primary legal issues before the court were whether the plaintiff had provided sufficient grounds for its application for judicial review, particularly in light of amendments to those grounds, and whether the plaintiff had identified the real bases of its complaint against the Minister's decision. The court needed to determine if the plaintiff's grounds for review were adequate and whether the amendments to those grounds were permissible under the law. Additionally, the court had to consider whether the plaintiff's complaint was focused on the real issues at hand, or whether it was instead a general dissatisfaction with the Minister's decision.

The court held that the plaintiff's original grounds for review were insufficient, as they did not clearly articulate the specific legal errors made by the Minister. However, the court allowed the plaintiff to amend its grounds to include a more precise challenge to the adequacy of the environmental impact assessment. The court emphasised the need for applicants to identify the real bases of their complaint and to ensure that their grounds for review are clear and specific. Ultimately, the court found that the plaintiff's amended grounds were sufficient and allowed the application for judicial review to proceed. The court ordered that the matter be remitted to the Minister for reconsideration, taking into account the plaintiff's concerns about the adequacy of the environmental impact assessment.

Orders