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Maguire v Parks Victoria

Maguire v Parks Victoria

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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…

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: [2020] VSCA 172
Decision Date: 25 June 2020

CaseChat Overview and Summary

Maguire v Parks Victoria is a case in which Mr Maguire sought judicial review of a decision made by Parks Victoria regarding land use. The High Court of Australia was tasked with determining whether Mr Maguire had the requisite standing to challenge the decision on the grounds that it lacked public consultation. Mr Maguire claimed he would have participated in such a consultation and that the decision interfered with his claimed amenity rights.

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.

Orders