SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0048
| PHILIP MAGUIRE | Applicant |
| v | |
| PARKS VICTORIA | Respondent |
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| JUDGES: | FERGUSON CJ, KYROU and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 June 2020 |
| DATE OF JUDGMENT: | 25 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 172 |
| JUDGMENT APPEALED FROM: | [2020] VSC 303 (Moore J) |
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JUDICIAL REVIEW – Standing - Whether applicant had standing to challenge decision on basis of lack of public consultation – Applicant asserted that he would participate in public consultation – Whether interference with claimed amenity sufficient to support standing – Absence of a special interest – Standing not established – Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493; [1980] HCA 53, applied – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr A T Strahan QC with Mr A Aleksov and Mr J Tito | Roberts Gray Lawyers |
| For the Respondent: | Mr J D Pizer QC with Mr O M Ciolek | Maddocks |
FERGUSON CJ
KYROU JA
NIALL JA:
Introduction and summary
In May 2020, the applicant commenced a proceeding in the Trial Division seeking declaratory and injunctive relief to restrain Parks Victoria from implementing a decision to commence shooting feral horses, also called brumbies, in the Alpine National Park (the ‘National Park’). The horses are an introduced species and, Parks Victoria believes, a threat to the fragile ecosystems within the National Park. Parks Victoria has statutory responsibility for the management of the National Park.
The applicant owns land adjoining the National Park and has a strong attachment to the horses. He believes that the ancestors of the current herd were originally bred on his land and some horses continue to graze there.
The decision to cull the horses was taken within a statutory and policy framework that comprises the National Parks Act1975 (the ‘National Parks Act’), the Parks Victoria Act1998 and its successor the Parks Victoria Act2018, a management plan established under the National Parks Act and other policy documents. Although the threat caused by the horses has been understood for some time and the need to control them is well recognised, the established method of control was mainly through trapping and removal. Shooting has not previously been used.
In 2017, Parks Victoria published the Feral Horse Strategic Action Plan 2018–2021 (the ‘Action Plan’), which identified the pressing need to control feral horses and the various methods that might reduce the number of horses within the National Park. It identified shooting as an available method but stated that it would not be used during the three-year period of the strategic plan, pending evaluation of the success of trapping and other capture methods. It said that further public consultation and dialogue would be undertaken on techniques such as shooting before they were adopted.
In 2018, a proceeding was commenced in the Federal Court of Australia by an organisation called the Australian Brumby Alliance Inc (the ‘Brumby Alliance’), seeking to restrain the implementation of the…
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- Case
- [2020] VSCA 172
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether Mr Maguire's asserted intention to participate in future public consultations was sufficient to confer standing, in the absence of a pre-existing special interest. The court examined whether the interference with Mr Maguire's claimed amenity rights was sufficient to establish standing. The case hinged on the principles established in Australian Conservation Foundation v Commonwealth, where the High Court set out the requirements for standing in cases of public interest litigation.
The court concluded that Mr Maguire did not have standing to challenge the decision. The reasoning was grounded in the established criteria for standing, which require a special interest in the subject matter of the decision. The court held that the mere intention to participate in future consultations was insufficient to establish the necessary special interest. Consequently, the court dismissed the application and refused leave to appeal, thereby upholding the requirement for a distinct special interest in the matter at the time of the decision.
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