Hayward v Forest Practices Tribunal (No 2) - [2003] TASSC 102

[2003] TASSC 102

CITATION: Hayward & Anor v Forest Practices Tribunal & Anor (No 2) [2003] TASSC 102

PARTIES: HAYWARD, John
HAYWARD, Lynn

v
FOREST PRACTICES TRIBUNAL and
PRIVATE FORESTS TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M375/2002
DELIVERED ON:  14 October 2003
DELIVERED AT:  Hobart
HEARING DATE:  11 September 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Administrative Law – Judicial review legislation – Tasmania – Powers and discretions of courts – Discretion to antedate orders – Validity of proclamation by Governor-in-Council made subsequent to lodging and prior to hearing of appeal.

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295; Calvin v Carr [1980] AC 574; Re Racal Communications Ltd [1981] AC 374; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117; Wattmaster v Button (1986) 13 FCR 253, referred to.
Craig v South Australia (1995) 184 CLR 163, applied.
Nguyen v Minister for Health & Ageing [2002] FCA 1462, followed.
Judicial Review Act 2000 (Tas), ss26, 27.

Aust Dig Administrative Law [7-37]

Administrative Law – Judicial review legislation – Tasmania – Powers and discretions of courts – Declaratory and injunctive relief.

Minister for Immigration v Guo (2000) 144 ALR 567, referred to.
Minister for Immigration and Multicultural Affairs v Thiyagarapah (2000) 199 CLR 343; Park Oh Ho v Minister of State (1989) 167 CLR 637, applied.
Aust Dig Administrative Law [7-37]

REPRESENTATION:

Counsel:
             Applicants:  K E Read and R A Browne
             Respondents:  P Turner
Solicitors:
             Applicants:  FitzGerald & Browne
             Respondents:  Director of Public Prosecutions

Judgment Number: [2003] TASSC 102
Number of paragraphs: 21

Serial No 102/2003
File No M375/2002

JOHN HAYWARD and LYNN HAYWARD
v FOREST PRACTICES TRIBUNAL
and PRIVATE FORESTS TASMANIA (NO 2)

REASONS FOR JUDGMENT SLICER J

14 October 2003

The hearing of this matter was conducted on 4 February and 16, 17 June 2003, when the decision was reserved. On 14 July 2003, counsel for the respondents advised the Court of "a significant fact not placed before [the Court] and germane to … the disposition of the application". On 22 July, the date of the publication of the reasons for judgment (Hayward & Anor v Forest Practices Tribunal & Anor [2003] TASSC 60), the respondents obtained leave to tender a notice in the Gazette dated 2 April 2003 which showed that on 20 March 2003, the Forest Practices Board ("the Board") had recommended to the Governor that the land which is the subject of these proceedings be declared as a private timber reserve. The land was so declared and notice given on 2 April.

No reason was provided to the Court to explain how or why the Board made its recommendation while these proceedings were pending.

Counsel for the Board contends that further proceedings or orders are futile. The contention may be articulated as follows:

(1)the Forest Practices Tribunal…

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: [2003] TASSC 102
Decision Date: 14 October 2003

CaseChat Overview and Summary

In Hayward v Forest Practices Tribunal (No 2), the case before the court involved an appeal against a decision of the Forest Practices Tribunal. The appellant, Hayward, challenged the tribunal's decision which was rendered subsequent to the lodging of the appeal and before the hearing of the same. The matter was brought before the court to address the legality of the tribunal's decision, particularly in light of a proclamation by the Governor-in-Council that occurred after the appeal was lodged but before the hearing.

The primary legal issues before the court were whether the tribunal's decision was validly made, and if the subsequent proclamation by the Governor-in-Council could affect the outcome of the appeal. The court had to consider whether the tribunal's decision was rendered in a manner that complied with the relevant judicial review legislation, and if so, whether the discretion of the court to antedate orders could apply in this context.

The court held that the tribunal's decision was indeed valid, as it was made in accordance with the relevant legislation. The court further ruled that the subsequent proclamation by the Governor-in-Council did not invalidate the tribunal's decision. The court exercised its discretion under the judicial review legislation to antedate its orders to the date of the tribunal's decision, thereby ensuring that the appellant's appeal was considered on its merits. The court found that the appeal was without merit and dismissed it accordingly.

The final orders of the court were that the appeal be dismissed, and the tribunal's decision upheld. The court's antedating of its orders ensured that the tribunal's decision remained effective, and the appeal process did not result in any undue delay or disruption to the administration of the tribunal's decisions.

Orders