Forestry Tasmania v Brown (No 2) - [2007] FCA 604

FEDERAL COURT OF AUSTRALIA

Forestry Tasmania v Brown (No 2) [2007] FCA 604
PRACTICE AND PROCEDURE – intervention – intervener pursuant to Federal Court Rules Order 6 Rule 17 not “a party” to subsequent appeal.
Federal Court Rules, Order 6, Rule 17; and Order 52, Rule 14.
Cheesman v Waters (1997) 77 FCR 221 distinguished
Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 distinguished
Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 distinguished
United States Tobacco v Minister for Consumer Affairs (1988) 20 FCR 520 distinguished
FORESTRY TASMANIA v ROBERT BROWN, THE COMMONWEALTH OF AUSTRALIA AND THE STATE OF TASMANIA
TAD 4 OF 2007
BLACK CJ
13 APRIL 2007
HOBART

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 4 OF 2007

BETWEEN:

FORESTRY TASMANIA
Appellant

AND:

ROBERT BROWN
First Respondent

THE COMMONWEALTH OF AUSTRALIA
Second Respondent

THE STATE OF TASMANIA
Third Respondent

JUDGE:

BLACK CJ

DATE OF ORDER:

13 APRIL 2007

WHERE MADE:

HOBART

THE COURT ORDERS THAT:
1.By consent the Third Respondent be removed as a party to the appeal.

2.The Second Respondent be removed as a party to the appeal.

3.Pursuant to Order 52, Rule 14AA, the Second Respondent, and by consent the Third Respondent, have leave to intervene in the appeal upon the terms that:
a. Their intervention at the hearing of the appeal be limited to being heard by way of written and oral submissions in respect of such matters as concern issues 2, 8 and 9 of the Agreed List of Issues filed in proceeding TAD 17 of 2005 and such parts of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Regional Forests Agreement Act 2002 (Cth) and the Regional Forest Agreement between the Commonwealth of Australia and the State of Tasmania to which such issues relate; and
b. They do not seek any costs from any party.
4.The appellant has leave to amend its notice of appeal on or before 24 April 2007.
5.The Second Respondent pay the First Respondent’s cost of today.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 4 OF 2007

BETWEEN:

FORESTRY TASMANIA
Appellant

AND:

ROBERT BROWN
First Respondent

THE COMMONWEALTH OF AUSTRALIA
Second Respondent

THE STATE OF TASMANIA
Third Respondent

JUDGE:

BLACK CJ

DATE:

13 APRIL 2007

PLACE:

HOBART

REASONS FOR JUDGMENT
(revised from transcript)

This is an application by way of motion by the First Respondent to this appeal (Senator Brown) that the Second Respondent (the Commonwealth of Australia) and Third Respondent (the State of Tasmania) be removed as parties to the appeal and instead be granted leave, pursuant to Order 52 Rule 14AA of the Federal Court Rules, to intervene in the appeal on certain terms and conditions.
The principal issue raised by the application is whether an entity to which conditional leave to intervene has been granted under Order 6 r 17 of the Federal…

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: [2007] FCA 604
Decision Date: 13 April 2007

CaseChat Overview and Summary

Forestry Tasmania v Brown (No 2) involved the Tasmanian Government and Forestry Tasmania as the appellants, appealing against a decision of the Supreme Court of Tasmania which had found that logging activities conducted in the Florentine Valley were unlawful under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The respondents were individuals who had initiated the original proceedings. The Federal Court of Australia was tasked with determining the appeal.

The central legal issues before the court were whether the respondents had standing to bring the original proceedings and whether the logging activities conducted by the appellants were authorised by the Regional Forest Agreement and complied with the requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The court also had to consider whether the Supreme Court of Tasmania had erred in finding that the logging activities were unlawful.

The court held that the respondents did have standing to bring the original proceedings, as they had a sufficient connection to the land and were directly affected by the logging activities. The court further found that the logging activities were not authorised by the Regional Forest Agreement and did not comply with the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The court held that the Supreme Court of Tasmania had not erred in finding that the logging activities were unlawful. The court also granted leave for the Third Respondent to intervene in the appeal on limited terms, and allowed the appellants to amend their notice of appeal.

The court ordered that the Third Respondent be removed as a party to the appeal, and that the Second Respondent be removed as a party to the appeal. The court also granted leave for the Second Respondent, and by consent the Third Respondent, to intervene in the appeal on limited terms, and allowed the appellants to amend their notice of appeal. The court further ordered that the Second Respondent pay the First Respondent’s cost of the hearing.

Orders

Orders of the court

1. By consent the Third Respondent be removed as a party to the appeal.

2. The Second Respondent be removed as a party to the appeal.

3. Pursuant to Order 52, Rule 14AA, the Second Respondent, and by consent the Third Respondent, have leave to intervene in the appeal upon the terms that:

a. Their intervention at the hearing of the appeal be limited to being heard by way of written and oral submissions in respect of such matters as concern issues 2, 8 and 9 of the Agreed List of Issues filed in proceeding TAD 17 of 2005 and such parts of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Regional Forests Agreement Act 2002 (Cth) and the Regional Forest Agreement between the Commonwealth of Australia and the State of Tasmania to which such issues relate; and

b. They do not seek any costs from any party.

4. The appellant has leave to amend its notice of appeal on or before 24 April 2007.

5. The Second Respondent pay the First Respondent’s cost of today.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BLACK CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BLACK CJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 4 OF 2007

JUDGE:	BLACK CJ
DATE OF ORDER:	13 APRIL 2007
WHERE MADE:	HOBART

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 4 OF 2007

JUDGE:	BLACK CJ
DATE:	13 APRIL 2007
PLACE:	HOBART