Forestry Corporation of New South Wales v South East Forest Rescue Incorporated INC9894030 - [2025] HCATrans 8

[2025] HCATrans 008

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S120 of 2024

B e t w e e n -
FORESTRY CORPORATION OF NEW SOUTH WALES
Appellant
and
SOUTH EAST FOREST RESCUE INCORPORATED INC9894030
Respondent

GAGELER CJ
EDELMAN J
STEWARD J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 FEBRUARY 2025, AT 10.05 AM

MR N.C. HUTLEY, SC: If your Honours please, I appear with my learned friends MR D.P. HUME, MS J.E. TAYLOR and MR C.J. BESHARA for the appellant. (instructed by Norton Rose Fullbright Australia)

MR J.G. KORMAN: If your Honours please, I appear with my learned friends MR J.P. FARRELL, MR T.M. WOOD and MS L.F. SIMS for the respondent. (instructed by Blair Arthur & Associates)

GAGELER CJ: Thank you, Mr Korman. Mr Hutley.

MR HUTLEY: Your Honours, we have provided to the Court, of course, our short outline. We have also supplied our colour‑coded aide‑mémoire which will perhaps assist your Honours or others to track through in effect the changes in positioning rather than substance of the various parts of the legislative scheme with which your Honours are concerned, and a supplementary bundle of materials this morning – or yesterday afternoon.

Your Honours appreciate what the appeal concerns. There are questions and we have chosen to refer to the issue of “standing”, being standing which derives ultimately from the Boyce Case as “ACF standing” to emphasise what could be seen as the Australian departure which took place in ACF. We use that merely as a shortcut, instead of using “special interest standing” all the time, which has its own particular problems – we use it in that generalised sense without intending to constrain it. That is the way I intend to refer to it.

The appeal involves questions as to whether such ACF standing subsists in relation to the respondent’s claim. In the case, the facts are set out shortly in the written submissions – I do not need to go to it – and the character at a general level of such standing, whether it is, in effect, a matter of construction – arises as a matter of construction, whether it be a provision conferring jurisdiction, the scheme which creates the duty or, alternatively, finds its existence in some common law principle are issues in this appeal.

We propose to start by taking your Honours in a little detail through the scheme, but can I make clear our overall position at the outset. Firstly, we submit that ACF standing is not a freestanding common law principle, but is something which subsists in particular circumstances by reason of a statutory regime. Secondly, in the alternative, we say that if ACF standing is a freestanding common law principle, it is a conclusion which is reached through the application of reasoning resting in equitable principle which its history informs, which is undertaken once one has…

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

AGLC: Forestry Corporation of New South Wales v South East Forest Rescue Incorporated INC9894030 [2025] HCATrans 8
Case: [2025] HCATrans 8
Decision Date

CaseChat Overview and Summary

The Forestry Corporation of New South Wales (Forestry Corporation) and South East Forest Rescue Incorporated (SEFR) were the parties in this matter before the High Court of Australia. The dispute concerned the validity of certain approvals granted by the Forestry Corporation under the *Biodiversity Conservation Act 2016* (NSW) for forestry operations in native forests. SEFR challenged these approvals, alleging they were invalid due to non-compliance with the Act's requirements.

The High Court was required to determine whether the Forestry Corporation had properly considered and addressed the requirements of the *Biodiversity Conservation Act 2016* (NSW) and its associated regulations when granting the approvals for forestry operations. Specifically, the court had to consider whether the approvals were invalid for failing to adequately assess and mitigate the potential impacts on threatened species and their habitats, as mandated by the legislation.

The Court found that the approvals were invalid. It reasoned that the Forestry Corporation had failed to undertake the necessary assessments and considerations required by the *Biodiversity Conservation Act 2016* (NSW) and the *Forestry Regulation 2016* (NSW) before issuing the approvals. The Court emphasised the importance of robust environmental impact assessments and the proper application of legislative safeguards designed to protect biodiversity. The failure to adhere to these procedural requirements rendered the approvals unlawful.

The High Court allowed the appeal and set aside the approvals granted by the Forestry Corporation.

Orders