VicForests v Kinglake Friends of the Forest
[2021] VSCA 195
•9 July 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0029
| VICFORESTS | Applicant |
| v | |
| KINGLAKE FRIENDS OF THE FOREST INC. (ABN 35 186 838 481) | Respondent |
---
| JUDGES: | NIALL, EMERTON and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 and 25 May 2021 |
| DATE OF JUDGMENT: | 9 July 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 195 |
| JUDGMENT APPEALED FROM: | Kinglake Friends of the Forest Inc v VicForests (No 4) [2021] VSC 70 (Richards J) |
---
PRACTICE AND PROCEDURE – Standing – Proposed logging – Whether respondent has standing to bring claim in relation to alleged unlawful logging operations – Whether respondent has interest in the subject matter of the action such as to support standing – Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493; [1980] HCA 53, applied – Standing established – Leave to appeal granted – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr E Nekvapil with Ms M Narayan | Johnson Winter & Slattery |
| For the Respondent | Mr J Korman | Oakwood Legal |
NIALL JA
EMERTON JA
KENNEDY JA:
The plaintiff, Kinglake Friends of the Forest Inc (‘Kinglake FF’), commenced a proceeding in the Trial Division to restrain what it alleges is unlawful logging operations being conducted by the defendant, VicForests. VicForests put the standing of Kinglake FF in issue and that question was decided by a judge of the Court in advance of the trial of the proceeding. The judge decided the question in favour of Kinglake FF.[1] VicForests seeks leave to appeal from that decision.
[1]Kinglake Friends of the Forest Inc v VicForests (No 4) [2021] VSC 70 (‘Reasons’).
For the reasons that follow, the judge was correct. Leave should be given, but the appeal dismissed.
The facts relevant to standing
Kinglake FF is an association incorporated under the Associations Incorporation Reform Act2012 (Vic). The purposes stated in its rules include providing a forum for people to advocate for the preservation of native forests in Kinglake and the Central Highlands of Victoria.[2]
[2]Ibid [1].
In its further amended statement of claim Kinglake FF pleads:
(a)a special interest in the protection of State forests in the Central Highlands; and
(b)consequently, a special interest in the observance by the defendant of the limitations upon its conduct of timber harvesting in the Central Highlands that the legislature has imposed; and
(c) consequently, standing to bring this action.
By way of particulars to its claim to a special interest Kinglake FF pleaded the following:
1The Plaintiff’s statement of purpose which is to, among other things, provide a forum for people to advocate for the preservation of the native forests in Kinglake and the Central Highlands of Victoria;
2. The Plaintiff’s rules which set out the above statement of purpose;
3.The Plaintiff’s organisation of a range of events, including:
(i)spotlighting nights on 4 May, 29 June and 27 July 2019 at Mt Robertson State Forest;
(ii)a public meeting on 20 October 2019 to protest logging in local forests;
(iii)a forest survey on 2 November 2019, recording and classifying habitat trees prior to logging activity, to encourage their retention by VicForests;
(iv)a banner painting afternoon on 20 February 2020, at which a specialist wildlife painter assisted participants to make a series of banners raising awareness of forests, their wildlife, and the need to protect them;
(v)a public meeting on 9 May 2020 with a guest speaker, discussing the effect of logging in Kinglake on fire intensity, climate and environment;
4.The Plaintiff’s co-hosting and co-organizing events including:
(i) a “Possums Not Paper” rally on 22 July 2019;
(ii)a rally on 22 September 2019 to stop logging in the Toolangi state forest and to demand a review of native forest logging plans in Victorian State forests;
(iii) a public Toolangi state forest tour in January 2020;
(iv) a forestry recovery picnic on 13 April 2020;
5.The Plaintiff’s arranging tours for parliamentarians, to promote the cause for protection of Central Highlands state forests from logging, including:
(i)showing Green MPs Dr Samantha Ratnam MP, Sam Hibbins MP and Dr Tim Read MP on 2 August 2019, logged State Forest coupes as well as further coupes scheduled for logging; and
(ii)showing Andy Meddick MP and his team through the Toolangi State Forest on 12 June 2020 to show them the impact of state logging in the State forests;
6.The Plaintiff’s actions in boosting media coverage of the case for stopping logging of the Central Highlands state forests, including:
(i)providing articles and contributions advocating protection of the Central Highlands state forests to the local newspaper, Mountain Monthly;
(ii)appearing on a radio show on Community Radio 3CR to advocate for protection of the local state forest;
(iii)providing media releases to the press, which resulted in publication of at least four newspaper articles
7.The Plaintiff’s maintenance of a popular and regularly updated social media presence on Facebook, which has 2,273 followers, and 2,171 “likes”, and includes:
(i)Report of an event: a talk titled The Insect Apocalypse, on 2 December 2019;
(ii)Report of an event: Nature for Life Rally, held on 28 November 2019;
(iii)Report of an event: Logging Issues in Victoria, an introduction, held on 3 June 2020;
(iv) a video titled Forests for Carbon; and
(v) 8 pages of photographs from all over the Central Highlands.
8.The Plaintiff carrying out, both prior- and post-incorporation of surveys, on its own and in conjunction with other environmental groups, of flora and fauna in state forests, to assist in advocating for their preservation from logging. These surveys include:
(i)a greater glider detection report in coupe 295-536-0021, 295-539-0001, and 295-548-0020 dated 11 January 2019, prior to the Plaintiff’s incorporation;
(ii)survey and mapping of significant habitat trees in coupe 295-395-000 carried out in or about July 2019;
(iii)a further greater glider detection report in relation to coupe 295-539-0001, dated 1 July 2019;
(iv) a greater glider detection report in relation to coupe 295-548-0020, dated 7 May 2020; and
(v)a further Greater Glider detection report in relation to coupe 295-548-0020, dated 7 May 2020,
9.The plaintiff frequently making submissions in relation to logging in the Central Highlands to government, supervisory bodies, and VicForests. These submissions include:
(i)a submission on 14 November 2019 to the Forest Stewardship Council audit of VicForests;
(ii)a submission to VicForests in November 2019 in relation to its proposed changes to the Timber Release Plan;
(iii)a submission on 17 April 2020 to the discussion paper reviewing the Commonwealth Environment Protection and Biodiversity Conservation Act;
(iv)a submission on 25 April 2020 to the Department of Environment, Land, Water and Planning (“DELWP”) public consultation program titled “Future of our Forests”;
(v)a submission to VicForests on 29 May 2020 in relation to the draft for comment of the High Conservation Values status update;
(vi)a submission with VicForests on 13 September 2020 in relation to VicForests’ proposed Timber Release Plan; and
(vii)a submission to the Inquiry into Environmental Infrastructure for Growing Populations on 5 October 2020, raising matters of importance for the whole of the Central Highlands, including threats from logging throughout the Central Highlands, Greater Glider tours in Kinglake and Narbethong, trailbike and 4WD tracks in Toolangi and Mt Disappointment, and tourist attractions throughout the highlands.
10.The Plaintiff arranging for an expert report by Associate Professor Emeritus Michael Feller, of the University of British Columbia, assessing the fire hazard in logging coupe 295-527-0003.
11.The Plaintiff making frequent reports to DELWP, bringing the Department’s attention to timber harvesting that has occurred in breach of the applicable regulatory framework, throughout the Central Highlands. These reports include:
(i)breach reports regarding logging at Hubba Bubba, Castella Quarry and Spyglass coupes made on 12 August 2019;
(ii)a breach report regarding logging at Zurich coupe near Marysville, on 13 March 2020;
(iii)a breach report regarding proposed logging at Snobs Creek, with photographs, on 5 April 2020;
(iv)a breach report regarding proposed logging at Pat’s Corner, near Warburton, on 30 April 2020;
(v)a breach report regarding logging at Shetlands Carriage coupe, submitted on 12 May 2020;
(vi)two breach reports regarding logging at Cameron Rd Taggerty, dated 25 August 2020;
(vii)a breach report dated 22 August 2020 regarding logging at Castella;
(viii)a breach report dated 6 August 2020 regarding logging at Kinglake (Hunter Coupe)
(ix)a breach report dated 22 August 2020 and amended on 25 August 2020, regarding logging at Mohican East;
(x)a breach report dated 22 August 2020 regarding logging at Narbethong;
(xi)a breach report regarding logging at Flowerdale (Neils Flower coupe) based on surveys conducted on 28-29 July 2020 and 1 August 2020;
(xii)a breach report dated 6 August 2020 regarding logging at Clonbinane;
(xiii)a breach report dated 31 August 2020 regarding logging at Powelltown South;
(xiv)a breach report dated 22 August 2020 regarding logging at Mt Disappointment; and
(xv)three breach reports dated 30 August 2020, 3 November 2020 and 4 November 2020, regarding logging at Matlock.
12.Receipt by the plaintiff of two grants from the Field Naturalists Club of Victoria Environment Fund, to support its Greater Glider detection activities.
13.Presentation, in February 2020, of a petition signed by 633 petitioners to the Victorian Legislative Council seeking cessation of logging in the Central Highlands state forests by July 2020.
14.Receipt, on 20 April 2020, of a letter of support from Murrindindi Shire Council, in recognition of its work advocating for protection of the Greater Glider population.
15.Commencement of court proceedings (S ECI 2020 04058), against VicForests on 26 October 2020, alleging overharvesting of bushfire management zones in the vicinity of Mohican, Mt Disappointment, Taggerty, Powelltown, Kinglake and Toolangi.
The issues in the proceeding
Kinglake FF seeks a declaration and a permanent injunction in respect of timber harvesting by VicForests, that it alleges is in contravention of the Sustainable Forests (Timber) Act 2004 (Vic), the Code of Practice for Timber Production 2014 (‘Code’), and the Management Standards and Procedures for timber harvesting operations in Victoria’s State Forests 2014 (‘Standards’).[3]
[3]Kinglake Friends of the Forest Inc v VicForests [2020] VSC 394, [2].
Kinglake FF alleges that cl 5.3.1.5 of the Standards imposes a general obligation on VicForests to screen timber harvesting operations from view, by means of a 20 metre vegetation buffer within which timber may not be harvested.[4] An allegation that VicForests overharvested coupes by breaching a prescribed net harvestable area criteria in a timber release plan was originally pleaded but has fallen by the wayside. That is because the current timber release plan, which makes areas of forest available to VicForests for harvest, apparently no longer prescribes a net harvestable area. Accordingly, that allegation can be ignored.
[4]Ibid [17].
The reasons for decision
The judge set out the relevant pleaded facts. She then referred to the legal principles governing standing by reference to Australian Conservation Foundation v The Commonwealth,[5] North Coast Environment Council v Minister for Resources,[6] and Maguire v Parks Victoria.[7] The judge also referred to two decisions in the Trial Division: Environment East Gippsland Inc v VicForests[8] and WOTCH Inc v VicForests (No 6).[9]
[5](1980) 146 CLR 493; [1980] HCA 53 (Gibbs, Stephen, Mason and Murphy JJ) (‘ACF’).
[6](1994) 55 FCR 492; [1994] FCA 1556 (Sackville J) (‘North Coast’).
[7][2020] VSCA 172 (Ferguson CJ, Kyrou and Niall JJA) (‘Maguire’).
[8](2010) 30 VR 1; [2010] VSC 335 (Osborn J) (‘Brown Mountain’).
[9][2020] VSC 674 (Keogh J) (‘WOTCH No 6’).
The judge first considered and rejected a submission made by VicForests that the statutory regime excluded standing to review decisions of VicForests. That submission was not made in this Court and need not be further mentioned.
By reference to the authorities, the judge identified the test to be whether Kinglake FF has established a special interest in the subject matter of the proceeding. In applying that test, the judge said the subject matter of the proceeding was ‘the trees in State forests in the Central Highlands region of Victoria that VicForests proposes to cut down, remove, and sell, and which Kinglake FF seeks to protect’.[10]
[10]Reasons [52].
The judge concluded:
I am satisfied on the totality of the evidence that Kinglake FF has a special interest in the preservation of the native forests of Kinglake and the Central Highlands, beyond a mere intellectual or emotional concern, and that its interest is greater than that of the general public. Both before and since its incorporation in 2019, it has demonstrated its interest in protecting those State forests through a wide range of activities in and about the forests. I place particular weight on the wildlife spotting nights and forest surveys conducted by Kinglake FF, and the events it has organised for its members and other interested people in the forests. It is significant that Kinglake FF has directed considerable effort towards community engagement and education about its ‘mission’ of preserving the State forests of the Central Highlands. It has notified the OCR of a large number of instances of alleged overharvesting by VicForests throughout the Central Highlands.
Kinglake FF’s interest in forest preservation intersects directly with the subject matter of the proceeding. Its interest will be diminished if VicForests harvests more trees than it is entitled to — put simply, there will be less forest remaining for Kinglake FF to preserve and conduct its activities in. Conversely, its interest will be enhanced by securing VicForests’ compliance with the allocation order. [11]
[11]Ibid [54]–[55].
The judge said that none of the factors considered by Keogh J in WOTCH No 6 were determinative, observing that the special interest test is flexible and depends on the subject matter of the litigation.[12] Having noted that Kinglake FF is not a peak environment body, was not involved in the development of the Code, and had received little government recognition, she continued:
I cannot accept that the standing of a community organisation depends on it having been favoured with government recognition or approval. That is only one of many relevant factors, and one which is less significant to the subject matter of this proceeding. [13]
[12]Ibid [56].
[13]Ibid [57].
Proposed grounds of appeal
The proposed grounds are simply expressed. They assert that the judge erred by determining that Kinglake FF had standing and that the judge should have come to the opposite conclusion.
VicForests’ submissions
Counsel for VicForests submitted, as the centrepiece of its argument, that this Court is bound by the decision of the High Court in ACF and that case cannot be distinguished. VicForests submitted that in the three subsequent decisions of the High Court in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA),[14] Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd,[15] and Onus v Alcoa of Australia Ltd[16] in which findings as to the existence of standing were upheld, the party seeking standing had a fundamentally different interest to that considered in ACF.
[14](1995) 183 CLR 552; [1995] HCA 11 (Brennan, Dawson, Toohey, Gaudron and McHugh JJ (‘SDA’).
[15]Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) (‘Bateman’s Bay’).
[16]Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50 (Gibbs CJ, Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ) (‘Onus’).
VicForests submitted that the argument made by Kinglake FF is the same argument made by ACF, which was rejected by the High Court. VicForests characterised the argument as being that a body established on the basis of concerns for the environment, which acted on those concerns, should be recognised as having a special interest.[17]
[17]ACF (1980) 146 CLR 493, 513–4; [1980] HCA 53 (argument of Mr Wilcox QC).
VicForests submitted that, although there were differences in the facts between this case and ACF, such differences were not material, and that standing could only be conferred on Kinglake FF by an impermissible extension of the law or alteration of the legal test settled by the High Court in ACF. It submitted that ACF had pleaded that, in the furtherance of its objects, it had made submissions to governments and public authorities in respect of environmental matters including comments made pursuant to the provisions of the legislation and the administrative procedures. VicForests submits that in substance Kinglake FF relied on the same aspect but had merely added to the detail.
Kinglake FF’s submissions
Kinglake FF accepted that ACF should be applied to the facts of this case. However, it referred to a number of subsequent decisions, including SDA and Onus, which, it submitted, emphasised the need for a flexible approach to the question of standing. Kinglake FF also submitted that evaluative processes by which the courts determine whether a special interests exists, must change over time to reflect prevailing community values.
Kinglake FF referred to the decision of Maguire[18] and submitted that, to have standing, it need not show an interest in the particular statutory scheme. It submitted that a plaintiff may have standing to challenge the exercise of power because of its practical or legal effect, even though the interests of the plaintiff do not coincide with the purpose of the statutory scheme.
[18][2020] VSCA 172 (Ferguson CJ, Kyrou and Niall JJA).
Kinglake FF also referred to the range of activities it engages in in the region to justify standing.
Standing: the principles
Given the arguments made by VicForests it is necessary to give close attention to the facts and outcomes in ACF and Onus. Before coming to them, it is useful to refer to the context in which the question of standing arises.
Standing in the context of public law depends on the nature and extent of the relationship between the plaintiff and the subject matter of the litigation. Expressed most generally, the issue is this: does the plaintiff have a sufficient connection to the issues in the litigation to justify them being allowed to bring the action? On one side of the relationship is the plaintiff. Issues may arise in the context of incorporated plaintiffs and the extent to which they reflect, to the same or greater extent, the interests of their individual members or corporators. In understanding the position of an incorporated plaintiff, it will be necessary to consider their constituent documents, as well as other matters, including their purpose, activities, and scale.
Identifying the other side of the connection is not as straightforward. The applicable test requires a connection to the ‘the subject matter of an action’.[19] Does this mean the underlying factual dispute, the cause of action, the remedy, some other matter, or a combination of them? At what level of abstraction should the subject matter of the proceeding be identified?
[19]ACF (1980) 146 CLR 493, 511; [1980] HCA 53 (Aickin J).
In the context of public law, the type of jurisdiction that the court is being asked to exercise may be relevant to standing. Where, as is often the case, the jurisdiction is statutory, the starting point for determining whether there is standing will be the terms of the statute. Some legislation, of which the Environment Protection and Biodiversity Conservation Act 1999 is an example, provides a relatively liberal standing regime.[20] Commonly phrases such as ‘person aggrieved’[21] or person ‘affected by’[22] are used to confer standing.
[20]Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 487.
[21]Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3.
[22]Administrative Appeals Tribunal Act 1975 (Cth) s 27; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 5.
On the other hand, where the jurisdiction is the supervisory jurisdiction of a court, which in Australia has a constitutional dimension,[23] attention needs to be given to the relief that is sought. The constitutional writs have particular rules as to standing. For example, historically a stranger could bring an action for prohibition but relief was liable to be withheld as a matter of discretion, whereas that was not the case for mandamus or certiorari.[24]
[23]Australian Constitution s 75(v). As to State Courts, see: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[24]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 90 [13]; [2000] HCA 57 (Gaudron and Gummow JJ).
In Australia, the constitutional writs are supplemented by the availability of the equitable remedies of declaration and injunction. In order to understand the nature of the issues and what is at stake in the formulation and application of rules as to standing, it is useful to recall why equitable remedies have been deployed. This was explained by three justices of the High Court in Bateman’s Bay as follows:
In this field, equity has proceeded on the footing of the inadequacy (in particular the technicalities hedging the prerogative remedies) of the legal remedies otherwise available to vindicate the public interest in the maintenance of due administration. There is a public interest in restraining the apprehended misapplication of public funds obtained by statutory bodies and effect may be given to this interest by injunction. The position is expressed in traditional form by asking of the plaintiff whether there is ‘an equity’ which founds the invocation of equitable jurisdiction.[25]
[25]Bateman’s Bay (1998) 194 CLR 247; [1998] HCA 49, [25] (Gaudron, Gummow and Kirby JJ) (citations omitted).
To similar effect, Gummow J referred in Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd to ’the use of the auxiliary jurisdiction in equity to fill what otherwise were inadequate powers to secure the compliance by others with particular statutory regimes or obligations of a public nature’.[26]
[26](2000) 200 CLR 591, 629–8 [98]; [2000] HCA 11.
In Bateman’s Bay, three justices emphasised the importance of the availability of relief to restrain or correct the unlawful exercise of power.[27] In doing so, their Honours were not propounding a new or different test to that established in ACF and confirmed in Onus.
[27](1998) 194 CLR 247; [1998] HCA 49, [43] (Gaudron, Gummow and Kirby JJ).
There is a clear public interest in preventing an unlawful exercise of power by a public authority. However, rules as to standing are informed not only by that consideration but also by the nature of public power and the proper limits of judicial power. As to the first, it would be a rare, and somewhat useless, exercise of public power that affected no one. Putting to one side the exercise of legislative power (which attracts its own considerations),[28] executive power can have a very broad impact. It can extend to approving an airport runway,[29] approving a drug for a subsidy,[30] approving clinical trials for a drug,[31] altering the trading hours in a capital city so as to permit Sunday trading,[32] issuing certificates that allow for preferential tax treatment,[33] classifying an allegedly blasphemous film,[34] or any number of approvals for the undertaking of activities that are apt to have an adverse environmental impact.[35] In each of those examples, contested issues of standing have arisen.
[28]Eg Papev Commissioner of Taxation (2009) 238 CLR 1; [2009] HCA 23 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[29]Botany Bay City Council v Minister of Transport and Regional Development (1996) 66 FCR 537; [1996] FCA 1507 (Lehane J).
[30]Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250; [1994] FCA 161 (Davies, Burchett and Gummow JJ).
[31]Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50; [1995] FCA 33 (Lockhart, Beaumont and Gummow JJ).
[32]SDA (1995) 183 CLR 552; [1995] HCA 11 (Brennan, Dawson, Toohey, Gaudron and McHugh JJ).
[33]Allan v Transurban City Link Ltd (2001) 208 CLR 167; [2001] HCA 58 (Gleeson CJ, Gaudron, Gummow, Kirby, Hayne and Callinan JJ).
[34]Ogle v Strickland (1987) 13 FCR 306 (Fisher, Lockhart and Wilcox JJ).
[35]ACF (1980) 146 CLR 493, 493–4; [1980] HCA 53; North Coast (1994) 55 FCR 492; [1994] FCA 1556 (Sackville J); Environment East Gippsland Inc v VicForests (2010) 30 VR 1; [2010] VSC 335 (Osborn J).
It takes no imagination to understand that some exercises of power can affect whole communities, cities, States or even the entire population. However, they are unlikely to affect every person equally or engender the same response. As Brennan J observed in Re McHattan and Collector of Customs, ‘[a]cross the pool of sundry interest, the ripples of affection may widely extend’.[36] As will be seen, the standing rule based on a ‘special interest’, focuses on the relative position of the plaintiff when compared with the broader population.
[36](1977) 18 ALR 154, 157.
Not only is the exercise of a public power potentiality very broad, it has another dimension, in that it occurs in the context of responsible and representative government. That is, accountability for decisions is not just a legal question, and finding that a plaintiff does not have standing does not necessarily mean that the conduct has no consequences for the party engaging in it.
The standing rule also accommodates, and is influenced by, the nature and limitations of judicial power. In the context of federal jurisdiction, Gaudron J has observed that questions of ‘standing’, when they arise, are subsumed within the constitutional requirement of a ‘matter’ and so are intertwined with the need for a justiciable controversy.[37] In this way, standing requires a concrete dispute between parties that have a sufficient interest.
[37]Truth About Motorways v Macquarie Infrastructure Management Ltd (2000) 200 CLR 591; 611 [45]; [2000] HCA 11.
In Kuczborski v Queensland,[38] Crennan, Kiefel, Gageler and Keane JJ emphasised the importance of standing rules to keep the exercise of judicial power within proper bounds — the resolution of legal controversies between parties that are sufficiently affected by the subject matter of the litigation. They said:
The established requirements as to standing ensure that the work of the courts remains focused upon the determination of rights, duties, liabilities and obligations as the most concrete and specific expression of the law in its practical operation, rather than the writing of essays of essentially academic interest. To recognise that a person has a sufficient interest to seek the exercise of judicial power where that exercise is apt to affect ‘the legal situation of persons subject to the jurisdiction of the court’ serves to maintain the ordinary characteristics of judicial power.
It may be accepted that there is a general public interest that governments act in accordance with the law enforced by the courts; but to conclude that the plaintiff’s sense of grievance at the injustice of these laws is not an interest which suffices to give him standing to challenge their validity is not to undermine this aspect of the rule of law.[39]
[38](2014) 254 CLR 51; [2014] HCA 46 (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ).
[39]Ibid 109 [184]–[185] (citations omitted).
In Onus, Gibbs CJ identified another matter of potential concern:
On the other hand, if standing is accorded to any citizen to sue to prevent breaches of the law by another, there exists the possibility, not only that the processes of the law will be abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to very great cost and inconvenience in defending the legality of his actions.[40]
[40](1981) 149 CLR 27, 35; [1981] HCA 50.
These general matters provide context for an understanding of the test described by the High Court in ACF.
ACF
Iwasaki Sangyo Company (Australia) Pty Ltd (‘Iwasaki’) intended to establish and operate a resort and tourist area at Farnborough in central Queensland. Iwasaki required overseas funds for its proposal and sought approval under the Banking (Foreign Exchange) Regulations. The decision to give approval rested with the Reserve Bank of Australia (‘RBA’). The making of that decision interacted with another administrative regime governed by the Environment Protection (Impact of Proposals) Act1974 (Cth) (‘the Act’). In short, the Act required the responsible Minister to promulgate administrative arrangements for the preparation of Environmental Impact Statements (‘EIS’) which would feed into other administrative decisions, including the foreign exchange transaction approval.
Under the administrative arrangements, the process for preparing an EIS included providing an opportunity for public comment. Under s 10 of the Act, ‘any person’ could by written notice require the Minster to inform him or her as to what action had been taken, or was proposed, to ensure consideration of environmental impacts.
An EIS was prepared and exchange approvals were given by the RBA. The precise relationship between the EIS and the decision of the RBA to approve a foreign exchange control transaction does not emerge clearly from the Court’s decision. As we understand the pleadings, it was alleged that a lawful EIS was necessary in order for the RBA to approve the exchange control transaction and ACF alleged that the EIS was defective because of a failure to comply with relevant administrative procedures. Declarations and injunctions were sought in relation to alleged non-compliance with the Act and administrative procedures, and in relation to the RBA approval.
The ACF was a body well known for its involvement in the public discussion of issues affecting the environment in Australia.[41] Its objects included:
(i) to make every effort to ensure that the air, land and waters of Australia are used with wisdom and foresight and that competing demands upon them are resolved in the best long-term interest of the nation;
(ii) to foster the conservation of the distinctive vegetation and fauna and important natural and archaeological features of Australia;
……..
(viii) generally, to take such action as it considers necessary or appropriate in the interests of promoting conservation.[42]
[41]ACF (1980) 146 CLR 493, 518–9; [1980] HCA 53 (Gibbs J).
[42]Ibid 519.
The ACF had about 6500 members drawn from all States and Territories. It received annual grants made by the Commonwealth as a contribution towards its administrative expenses. It sought to influence national policy on matters affecting the environment and, to that end, made submissions to government and public authorities in respect of environmental matters, including comments made pursuant to the Act and the administrative procedures.[43]
[43]Ibid.
ACF commenced a proceeding against the Commonwealth in the High Court seeking declaratory and injunctive relief directed to the approvals granted under the administrative procedures and the Banking (Foreign) Exchange Regulations. At first instance, Aickin J struck out the proceeding on the basis that ACF lacked standing. An appeal was heard by four justices of the Court and, by majority, the appeal was dismissed.[44]
[44]Gibbs, Stephen and Mason JJ writing separately, comprised the majority. Murphy J dissented.
Gibbs J set out the statutory and factual context and concluded that the scheme did not confer any private rights on any individual to enforce compliance with the Act or administrative procedures.[45] He noted that the action was not brought by ACF to assert a private right. Rather, ACF sought to ‘to enforce the public law as a matter of principle, as part of an endeavour to achieve its objects and to uphold the values which it was formed to promote’.[46] Stephen J also observed that ACF was not seeking to vindicate any private right and was ‘a disinterested body concerned to protect the environment from insult, doing so in what it regards as the interests of the community at large’.[47]
[45]ACF (1980) 146 CLR 493, 524–5; [1980] HCA 53.
[46]Ibid 526.
[47]Ibid 537.
In that context, Gibbs J identified the test to be whether ACF had a ‘special interest in the subject matter of the action’.[48] In doing so, Gibbs J traced the test back to earlier authorities in the United Kingdom, including comments of Buckley J in Boyce v Paddington Borough Council, to require a plaintiff to show that he has suffered ‘special damage peculiar to himself’. Gibbs J observed that this formulation was potentially misleading in that the use of the word ‘damage’ might connote actual pecuniary loss, which is not required, and because the word ‘peculiar’ may suggest, wrongly, that it needed to be unique. Gibbs J adopted ‘special interest’ as the appropriate formulation. Mason J agreed.[49] Although Stephen J used the ‘special damage’ formulation, his Honour’s reasoning is similar to that expressed by Gibbs J.[50] Stephen J analysed ACF’s position by accepting that damage need not be to a property right recognised by the law nor that it be peculiarly suffered by the plaintiff.[51]
[48]Ibid 527.
[49]Ibid 547.
[50]Ibid 538–9.
[51]Ibid 539.
Before applying the test to ACF, Gibbs J made a number of observations which are, with respect, important to his reasoning. First, his Honour observed that the test he identified was consistent with a passage in Anderson v the Commonwealth,[52] in which Gavan Duffy CJ, Starke and Evatt JJ referred to the need for a plaintiff to show that he was ‘more particularly affected than other people’.[53]
[52](1932) 47 CLR 50; [1932] HCA 2 ( Gavan Duffy CJ, Rich, Starke, Evatt and McTiernan JJ).
[53]Ibid 51–2.
Secondly, and importantly, Gibbs J adopted what was said by Mason J in Robinson v Western Australian Museum,[54] that ‘cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another’.[55]
[54](1977) 138 CLR 283; [1977] HCA 46 (Barwick CJ, Gibbs, Stephen, Mason, Jacobs and Murphy JJ) (‘Robinson’).
[55]Ibid 327–8.
Consistently with that observation, Gibbs J went on to say:
I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.[56]
[56]ACF (1980) 146 CLR 493, 530–1; [1980] HCA 53.
Gibbs J then turned to apply the test to the facts of the case. In that respect his Honour noted that ACF sought to establish an interest in two ways. First, by reference to its nature and objects. Second, because it had provided written comments on the EIS under the administrative arrangements.
The Court held that neither gave rise to a sufficient interest.
On the first aspect Gibbs J said:
The fact that the Foundation is incorporated with particular objects does not strengthen its claim to standing. A natural person does not acquire standing simply by reason of the fact that he holds certain beliefs and wishes to translate them into action, and a body corporate formed to advance the same beliefs is in no stronger position. If it is the fact that some members of the Foundation have a special interest — and it is most unlikely that any would have a special interest to challenge the exchange control transaction — it would not follow that the Foundation has locus standi, for a corporation does not acquire standing because some of its members possess it.[57]
[57]Ibid 531 (citations omitted).
Stephen J adopted similar reasoning on the first basis claimed by ACF. Stephen J said that an individual does not suffer such damage as gives rise to standing to sue merely because he voices a particular concern, and regards the actions of another as injurious to the object of that concern.[58] He continued that it was not enough that the person held ‘genuinely held convictions upon a topic of public concern’.[59]
[58]Ibid 539.
[59]Ibid.
The second claimed basis was also held to be insufficient. The fact of commenting on the process, which under the administrative procedures was an opportunity open to all, did not give rise to standing.[60] Gibbs J drew a contrast with a statutory right of objection, which in other contexts had supplied an interest that supported standing.[61] Stephen J dealt with the issue at greater length, analysing the particular procedures that allowed for an opportunity to make submissions on the draft EIS.[62] He concluded that the scheme did not give rise to any interest or right beyond providing a submission and that, ‘what happens thereafter is no particular affair of his, his having supplied comments does not of itself seem to confer upon him any right or interest in subsequent events greater than that of any other member of the community’.[63]
[60]Ibid 531 (Gibbs J).
[61]Ibid 532.
[62]Ibid 541.
[63]Ibid 542.
Onus v Alcoa
The issue of standing was again considered by the High Court in Onus.[64] The issue in Onus was whether a group of Indigenous Australians had standing to restrain a development on private land near Portland, Victoria, which they contended would contravene s 21 of the Archaeological and Aboriginal Relics Preservation Act1972. Section 21 of that Act provided that it was an offence to wilfully or negligently deface or damage or otherwise interfere with a relic or carry out an act likely to endanger a relic. ‘Relic’ was defined to include a relic pertaining to the past occupation by the Aboriginal people of any part of Australia, whether or not the relic existed prior to the occupation of that part of Australia by people of European descent. The plaintiffs were Gournditch-jmara Aboriginal people, who claimed they were the custodians of relics located on the land according to their laws. It was also alleged that the relics were of cultural and spiritual significance to them.
[64](1981) 149 CLR 27; [1981] HCA 50.
The Full Court of the Supreme Court of Victoria, (Starke, Kaye and Jenkinson JJ) dismissed an appeal from Brooking J who had held that the plaintiffs lacked standing.[65] They held that the interests of the plaintiffs reflected an emotional or intellectual concern that, on the approach taken in ACF, was insufficient to attract standing.[66]
[65]Onus v Alcoa of Australia Ltd (Unreported, Supreme Court of Victoria, Full Court, Starke, Kaye and Jenkinson JJ, 19 December 1980).
[66]Onus (1981) 149 CLR 27, 45; [1981] HCA 50.
The High Court allowed an appeal, holding that the plaintiffs had standing.
Gibbs CJ observed that the rule in ACF ‘is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest, will vary according to the nature of the subject matter of the litigation’.[67] On his earlier observation in ACF that a mere intellectual or emotional concern was not enough, Gibbs CJ said, ‘[o]f course, a special interest is none the less sufficient if it is accompanied by an emotional or intellectual concern’.[68] The Chief Justice held that the plaintiffs’ interests went beyond ‘beliefs or opinions’ and that the relics had cultural and spiritual significance.[69]
[67]Ibid 36.
[68]Ibid 37.
[69]Ibid.
Stephen J observed that the possession of intellectual or emotional concern was not a disqualification from standing to sue.[70] He observed that it would be rare that a person with a special interest would not at the same time ‘possess at least a strong intellectual and perhaps also a strong emotional concern with that subject matter. What is more, the absence of mere material interest in that subject matter, in the sense of property or possessory rights, will not, as the law now stands, be in itself any bar to standing’.[71] Stephen J described the methodology to be applied in the following way:
As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff’s relationship to that subject matter.[72]
[70]Ibid 41.
[71]Ibid 42.
[72]Ibid.
After referring to the deep connection between the plaintiffs and the relics, Stephen J went on:
It is to be distinguished, I think, and will be perceived by courts as different in degree, both in terms of weight and, in particular, in terms of proximity, from that concern which a body of conservationists, however sincere, feels for the environment and its protection. Courts necessarily reflect community values and beliefs, according greater weight to, and perceiving a closer proximity to a plaintiff in the case of, some subject matters than others. The outcome of doing so, however rationalized, will, when no tangible proprietary or possessory rights are in question, tend to be determinative of whether or not such a special interest exists as will be found standing to sue.[73]
[73]Ibid.
Wilson J also drew a distinction between the plaintiffs’ standing and that considered in ACF, but in narrower terms than those expressed by Stephen J. He said:
In that case, the Foundation was asserting a general concern that environmental considerations should receive adequate consideration in the administration of government, a concern that happened to be focussed through the events that occurred on a particular development in Queensland. It might just as easily have been related to proposed development in Victoria, or Western Australia or anywhere else in Australia. In the present case, the interest of the appellants is necessarily focussed on relics in a particular locality. There is nothing abstract about it. There is nothing voluntary about it, as there would be if it were a cause which if not pursued at Portland today may be pursued in the Kimberleys tomorrow. The Gournditch-jmara people, of which the appellants are representative, are involved with these relics, whether they like it or not. It is to their ancestors, their history, that the relics bear silent but meaningful testimony. Furthermore, the corporate nature of the interest, resident as it is collectively in the tribe, also serves to identify an interest which is deeper and more significant than a mere emotional attachment. In my opinion, the interest of the appellants, described as it is as a cultural and historical interest, is more than the kind of emotional or intellectual interest to which Gibbs J referred in the Conservation Foundation Case.[74]
[74]Ibid 62.
Wilson J was obviously influenced by the immediacy of the connection between the plaintiffs and the particular relics. In that respect he said:
On the other hand, if an aborigine from Arnhem Land had brought the present action, asserting an interest in the aboriginal relics on the respondent's land at Portland simply because he was an aborigine, with no greater interest in them than that possessed by every other aborigine, then no doubt his interest would not be sufficient. It is of course a question of fact and degree in every case and, as Mason J remarked in Robinson v Western Australian Museum, the cases are ‘infinitely various’.[75]
[75]Ibid 63 (citations omitted).
Brennan J emphasised that the relevant interests that may give rise to standing are not confined to legal or proprietary interests. He said:
A special interest in the subject matter of an action being neither a legal nor equitable right, nor a proprietary or pecuniary interest, will ordinarily be found to arise from modern legislation enacted to protect or enhance non-material interests — interests in the environment, in historical heritage, in culture. Where such a statute imposes a public duty to protect or enhance a non-material interest a breach of the duty is apt to affect a non-material interest, and it would be vain to search for proprietary or pecuniary damage suffered by a plaintiff. A plaintiff in such a case, though he may be able to show a special interest in what the statute seeks to protect or enhance, would be unable to show a private right or to prove that he has suffered proprietary or pecuniary damage. To deny standing would deny to an important category of modern public statutory duties an effective procedure for curial enforcement.[76]
[76]Ibid 73.
A number of points emerge from ACF and Onus:
(a) A plaintiff must show a special interest in the subject matter of the litigation;
(b) The need for a special interest reflects the need to show an interest or a position that is different from the public at large;
(c) The concept of ‘interest’ is not limited to proprietary, business or economic interests;
(d) The need for the interest to be special or different is not merely a function of the depth of feeling but reflects the nature of the relationship between the person and the subject matter of the litigation. The nature of the interest in the subject matter must be more than merely emotional or intellectual;
(e) The subject matter of the litigation will involve a consideration of the statutory context, the nature of the power, and the form of relief sought. The place, if any, that the plaintiff has in the statutory scheme may be important.
An important aspect of the reasoning in ACF is that the application of the special interest test is fact and context specific. Gibbs J made that point expressly by his reference to Mason J’s judgment in Robinson and by his statement that he would not deny that a person might have a special interest in the preservation of a particular environment. Ultimately, ACF was decided on the basis that the two interests ACF relied on, when considered in the light of the specific statutory scheme, were insufficient to give it standing.
The importance of the specific context can be seen from the decision of Davies J in ACF v Minister for Resources.[77] In that case, ACF sought, under the ADJR Act, to challenge a decision by a Commonwealth Minister to grant an export licence for the export of 850,000 tonnes of woodchips per annum. The woodchips were sourced from logging of two State forests that formed part of the National Estate under s 31 of the Australian Heritage Commission Act (Cth). Davies J held that ACF was a ‘person aggrieved’ under the ADJR Act. Central to that conclusion was that the issue was not a local issue, and the State forests were part of the National Estate which gave them national significance.[78] Davies J concluded:
While the Australian Conservation Foundation does not have standing to challenge any decision which might affect the environment, the evidence thus establishes that the Australian Conservation Foundation has a special interest in relation to the South East Forests and certainly in those areas of the South East Forests that are National Estate. The Australian Conservation Foundation is not just a busybody in this area. It was established and functions with governmental financial support to concern itself with such an issue. It is pre-eminently the body concerned with that issue. If the Australian Conservation Foundation does not have a special interest in the South East forests, there is no reason for its existence.[79]
[77](1989) 76 LGRA 200.
[78]Ibid [13].
[79]Ibid [17].
As already noted, ACF v Minister for Resources was decided under the ADJR Act. However, in North Coast Sackville J observed that there is nothing in the reasoning of Davies J in ACF v Minister for Resources, so far as the standing of the ACF is concerned, that is inconsistent with the decision of the High Court in ACF.[80] With respect, we agree. Once it is acknowledged that the issues are heavily fact and context specific, and given the very obvious differences between the local issues in ACF and the national issues in ACF v Minister for Resources, the two decisions sit comfortably together.
[80](1994) 55 FCR 492, 511; [1994] FCA 1556.
A similar conclusion was reached by Osborn J in Brown Mountain.[81] In that case, Osborn J referred to the activities of the plaintiff, Environment East Gippsland (‘EEG’), a local incorporated environmental group. Those activities included participation in a consultation process for the formulation of a forest management plan, use of the coupes (by running ecology camps in the area, including walks through the coupes), making submissions to the government department on a moratorium on logging in the area, and being recognised as a body representing a particular sector of the public interest by financial grant and by an award. Osborn J concluded:
EEG’s interest in the enforcement of the law with respect to proposed logging at Brown Mountain does not simply derive from intellectual or emotional concern, nor from its ostensible objects. Although it is not a peak environmental association of the type with which Sackville J was concerned in the two cases I have referred to above,[82] it does have a special interest in the implementation of the FMP and the enforcement of the statutory framework governing logging at Brown Mountain Creek.[83]
[81](2010) 30 VR 1; [2010] VSC 335.
[82]Referring to North Coast (1994) 55 FCR 492; [1994] FCA 1556 (Sackville J) and Bateman’s Bay (1998) 194 CLR 247; [1998] HCA 49 (Gaudron, Gummow and Kirby JJ).
[83]Brown Mountain (2010) 30 VR 1, 28 [88]; [2010] VSC 335.
Does Kinglake FF have a ‘special interest’?
VicForests accepts that there are factual differences between this case and ACF. However, it says that those differences are immaterial such that ACF cannot be distinguished, and the outcome must be the same. Before addressing the significance, if any, that attaches to the differences, it is necessary to identify what they are.
The regulatory/statutory scheme
As already noted, there were two statutory schemes involved in ACF. The first concerned foreign exchange transactions. The second was a generally imposed requirement that certain government decisions should take into account their potential environmental impact. That requirement had a statutory foundation but was regulated by administrative procedures.
The regulatory context with which the current proceeding is concerned is different. It imposes positive obligations, expressed in mandatory terms, that limit or control the logging operations of VicForests. Specifically, Kinglake FF alleges that cl 5.3.1.5 of the Standards imposes a general obligation on VicForests to screen timber harvesting operations from view, by means of a 20-metre vegetation buffer within which timber may not be harvested.[84]
[84]Kinglake Friends of the Forest Inc. v VicForests [2020] VSC 394, [17].
Connection between the plaintiff and subject matter
ACF was a peak national environmental body with members across Australia. It had no particular connection to Farnborough or the proposal, other than the connection gained from making a submission on the draft EIS. It generally advocated for the protection of the environment.
Kinglake FF is involved with the Kinglake area and the Central Highlands as evidenced by the following activities:
(f) organising multiple public events, including wildlife spotlighting nights, public meetings, forest habitat tree surveys, and a banner painting afternoon;
(g) co-hosting and co-organising events in conjunction with other organisations, including several rallies, a public forest tour, and a forest recovery picnic;
(h) arranging tours for parliamentarians to promote the cause for protection of Central Highlands state forests from logging;
(i) boosting media coverage of the case for stopping logging of the Central Highlands state forests;
(j) maintaining a Facebook media presence advocating for the protection of the Central Highlands state forests;
(k) carrying out five flora and fauna surveys in various logging coupes in Central Highlands state forests;
(l) preparing and lodging seven separate submissions in relation to logging in the Central Highlands to government, supervisory bodies, and VicForests;
(m) arranging for an expert report to be prepared by a Canadian academic assessing the fire hazards in a Central Highlands logging coupe;
(n) researching, preparing and lodging 18 breach reports in relation to VicForests’ logging activities in the Central Highlands with the Department of Land, Water and Planning (‘DELWP’);
(o) receipt of two grants from the Field Naturalists Club of Victoria to support the plaintiff’s Greater Glider detection activities;
(p) presentation of a petition signed by 633 petitioners to the Victorian Legislative Council seeking cessation of logging in the Central Highlands state forests by July 2020;
(q) receipt of a letter of support from Murrindindi Shire Council, in recognition of the plaintiff’s work advocating for protection of the Greater Glider population; and
(r) conducting court proceedings (S ECI 2020 04058) against VicForests on 26 October 2020, alleging overharvesting of bushfire moderation zones in various locations in the Central Highlands state forests.
Connection between the plaintiff and the regulatory scheme
Neither ACF nor Kinglake FF was identified as a participant in the relevant regulatory regime.
The form of relief
In ACF, as in this case, the plaintiff sought declarations and injunctions. In ACF, the relief sought included a declaration that there had not been a lawful environmental assessment. However, although an environmental assessment was a matter to be taken into account by the RBA, the approval of the foreign exchange transaction did not require a favourable environmental assessment. The validity of the EIS did not bear directly on the dispositive decision in ACF.
In this case, Kinglake FF seeks to restrain the removal of particular trees in the forest, on the basis that their removal breaches the express prescription.
Analysis
There is no doubt that there are differences between the positions of ACF and Kinglake FF, principally because the latter has a direct and ongoing involvement in the particular local environment with which the proceeding is concerned, a connection which was absent in ACF.
However, VicForests submits that the direct involvement of Kinglake FF is no more than evidence of its strongly held views or opinions, and its position is therefore indistinguishable from ACF. It relies on the contrast drawn by Gibbs CJ in Onus between a small local group of Aboriginal Australians and a diverse group of white Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian. It says that Kinglake FF falls into the latter class in the same way as ACF.
The nature of the interest
It is apparent from the activities described in paragraph 69 that Kinglake FF is an active user of the Central Highlands forests in that it seeks not only to agitate to preserve them, but to foster the understanding and enjoyment of them by its members and by the local and wider community. Its activities and position in the local community are similar to those of EEG in Brown Mountain. The forests of the Central Highlands are a locus of scientific investigation and the development of knowledge about the natural world, and for the enjoyment of nature, which is a fundamental human impulse. In this sense, they are a resource for Kinglake FF as much as they are for VicForests. A breach of the regulatory controls designed to balance the competing demands on the forests can therefore be said to involve a disadvantage to Kinglake FF that gives rise to more than a sense of grievance.
In this context, a distinction may be drawn between merely holding beliefs (or having a mere emotional or intellectual concern), and the taking of concrete steps to give effect to those beliefs. The latter demonstrates a commitment that distinguishes the person or entity from other members of the community and may give rise to a ‘special interest’ in securing compliance with regulatory requirements. In the context of environmental protection, the commitment may be shown by the conduct or support of research, community engagement, interaction with the regulator, participation in the development of regulatory controls, the development of expertise and knowledge, political lobbying or other conduct.[85] Such conduct would reveal that the person or entity is not just an ‘intermeddler’, ‘crank’ or ‘busy body’. It may allay concerns that the entity will not be in a position to carry through the litigation. In this context, the distinction between beliefs and action is both logical and coherent, and consistent with the purpose of the standing rule.
[85]North Coast (1994) 55 FCR 492, 512–3; [1994] FCA 1556 (Sackville J).
On the facts, Kinglake FF has demonstrated a commitment to the specific environment that it alleges is subject to unlawful logging operations. By its proceeding it seeks to restrain those operations.
The judge placed particular emphasis on the wildlife spotting nights and forest surveys conducted by Kinglake FF, and the events it has organised for its members and other people interested in the forests. She regarded community engagement and education as significant, and noted that Kinglake FF had directed considerable effort towards its ‘mission’ of preserving the State forests of the Central Highlands, notifying the Office of Conservation Regulator of a large number of instances of alleged overharvesting by VicForests throughout the Central Highlands.[86] In our view, these were all matters on which the judge was entitled to place particular weight. Having regard to the nature and extent of these activities, there is a demonstrated interest in the protection of the environment in the Central Highlands that is qualitatively different from the interest of ordinary members of the public.
[86]Reasons [54].
It is true that there is no evidence that Kinglake FF was engaged in the design of the regulatory prescriptions, and nor is there evidence that it has received funding from government. However, we agree with the judge that standing does not depend on a plaintiff having been ‘favoured with government recognition or standing’.[87] We do not take her Honour to be suggesting that those factors are irrelevant, but that they cannot be dispositive. It must be borne in mind that the issue of standing in public law arises where a plaintiff is seeking to challenge a government decision, or failure to act, in a particular respect. In that context, it would be perverse if standing depended on some previously conferred governmental imprimatur. Of course, participation in the regulatory process may reveal the nature and extent of an interest in a subject matter, and government recognition may also evidence that interest.
[87]Ibid [57].
VicForests also submits that some of the activities relied on by Kinglake FF occurred after the commencement of the proceeding and should be ignored for the purposes of considering standing. It says that such activities are similar to the second basis relied on by ACF, namely making submissions on the draft EIS. We do not accept that submission. Unlike ACF, the present proceeding is not challenging, and the activities were not directed to engaging with, a specific decision. Taking advantage of a consultation process that is open to everyone in respect of a particular decision does not, in and of itself, give rise to a special interest. Here, Kinglake FF’s conduct in bringing the proceeding is the logical extension of its general activities directed to preserving and fostering the understanding and enjoyment of the forests in the Central Highlands. The activities on which it relies to establish a special interest were undertaken independently of the proceeding and reflect an ongoing engagement with the prescriptions governing logging in the Central Highlands.
To the extent that VicForests’ submissions entail a contention that an interest in the protection of the environment can never sustain standing, that contention cannot be accepted. First, Gibbs J in ACF did not rule out an interest in a particular environment. Secondly, as was made clear in SDA and Bateman’s Bay, the issue must be considered in the particular statutory context. In the context of the commercial exploitation of natural resources, such as timber found in State forests, the regulatory regime will often balance commercial interests with the protection of the environment and threatened species or processes. Where, as in the present context, there are specific prohibitions designed to protect native species, the identification and protection of threatened species will be an important objective. Evidence of past involvement in those prescriptions, including by reporting past non-compliance, shows a commitment to the relevant subject matter.
The coincidence between a purpose of the regulatory regime, namely protection of the environment from logging, and the purpose of Kinglake FF is not sufficient to establish a special interest — but nor is it irrelevant.[88] As Brennan J explained in Onus the statutory scheme may help identify the relevant ‘non-material’ interest.[89] In Onus, the relevant legislation reflected the important cultural and spiritual interests of Indigenous Australians. Similarly, the development of laws protecting the environment, including the laws that Kinglake FF seeks to enforce, shows that the protection of the environment is an important ‘non-material’ interest that may support or underpin a special interest. ACF does not stand for the contrary.
[88]Maguire [2020] VSCA 172, [80]; McLeod v Legal Profession Conduct Commissioner [2016] SASC 151, [60] (Doyle J).
[89](1981) 149 CLR 27, 73; [1981] HCA 50.
Given the issues in dispute, the distinction between ACF and Kinglake FF is not simply one of scale or geographic coverage but of relevantly different interests. The distinction lies in Kinglake FF’s concentration of effort in and commitment to preservation, understanding and enjoyment of the Central Highlands native forests, which underscores its interest in the subject matter of the proceeding, which itself is quite specific. The point can be illustrated by reference to the decision of Davies J in ACF v Minister for Resources considered above.[90]ACF was found to have standing to pursue litigation directed to protecting the environment in one context but not in another. That does not signal the application of a different test, but a recognition that context is critical, which is a matter that cannot simply be explained by the fact that in the Federal Court case the jurisdiction was statutory.
[90](1989) 76 LGRA 200.
The connection to the subject matter of the litigation
As ACF and the discussion in Onus demonstrate, it is important that the matters relied on to establish standing relate back to the specific issues in the litigation. In order to consider this matter it is necessary to identify the subject matter of the litigation at the appropriate level of abstraction. Depending on the context, it may be accurate to describe the issues as involving the protection of the environment in the Central Highlands, the preservation of trees in the Central Highlands forests, the lawfulness of logging in that area, or the alleged non-compliance with the specific prescription relating to buffers.
The judge described the subject matter of the proceeding as being ‘the trees in State forests in the Central Highlands region of Victoria that VicForests proposes to cut down, remove, and sell, and which Kinglake FF seeks to protect’.[91] In our view, the description given by the judge was incomplete. It is certainly correct to say that the objective of the litigation is to protect certain parts of State forests in the Central Highlands and that it involves the protection of trees. However, given that the purpose of the proceeding is to enforce a regulatory standard in relation to logging, the central issue raised by the litigation is the lawfulness — and not the merits — of proposed logging operations.
[91]Reasons [52].
VicForests submits that the subject matter of the proceeding is compliance with the buffer restriction. In that respect, it submitted that activities carried out by Kinglake FF that were connected to broader issues of environmental protection or involved different prescriptions, such as preservation of hollow bearing tress rather than preservation of the buffer zones, had no connection with the subject matter of the proceeding. VicForests pointed to the fact that surveys undertaken by Kinglake FF were concerned with the prevalence of hollow bearing trees and greater gliders, neither of which has any relevance to the particular buffer prescription that Kinglake FF seeks to enforce.
For the purposes of considering standing in this proceeding, it is wrong to confine the subject matter of the proceeding in the way proposed by VicForests. The issue in this proceeding can be expressed more generally as being whether there has been compliance with environmental prescriptions and the lawfulness of certain tree removal operations in the Kinglake and Central Highlands forests. In the context of a regulatory regime that imposes multiple requirements at varying degrees of specificity, it would be artificial to approach standing as if each regulatory requirement gave rise to a separate subject matter.[92]
[92]Cf WOTCH No 6 [2020] VSC 674 (Keogh J).
Whether generally expressed objects of an environmental protection organisation establish a sufficient connection to the actual subject matter of a legal proceeding will involve questions of degree. In ACF, the connection was so generally expressed, by reference to statements of objects, that ACF was really no more than an advocate for the environment generally.
ACF did not plead any particular connection to the specific environment at Farnborough and relied on a general interest in the environment as a whole. Even less did it seek to establish a particular connection to the foreign exchange transaction. The position of Kinglake FF is, again, quite different.
As its activities demonstrate, Kinglake FF has an interest in its local environment, including the lawfulness of logging in the Central Highlands. It is not the case that Kinglake FF seeks to enforce prescriptions unrelated to the preservation of forests in the Central Highlands. It does not seek, for example, to secure compliance with obligations imposed on directors to account for overpaid expenses or with OH&S requirements relating to the use or storage of machinery. The proceeding is directly related to Kinglake FF’s special interest in preserving the native forests of the Central Highlands.
In ACF, the connection between the exercise of power by the RBA and the EIS was attenuated, in that the EIS was only a matter to take into account. In the present context, the prohibitions are direct, mandatory and informed by the protection of threatened species. There is a close connection between the work of Kinglake FF outside of the litigation and the issues in dispute.
Connection to the relief sought
In ACF, Gibbs J related the relevant interest to the relief that is sought. In that respect he said:
[A] person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.[93]
[93]ACF (1980) 146 CLR 493, 530; [1980] HCA 53.
In considering what is meant by an ‘advantage gained’, it is critical to recall that an interest that may give rise to standing need not be a financial or proprietary interest, or indeed, a legal interest that is protected by the private law.[94] Indeed, if the plaintiff had a private right that was being infringed, the plaintiff would not need to show a special interest. It must follow that in order to show special interest you do not need an interference with a private right.[95] In ACF, Mason J considered that the type of interests included ‘perhaps … social or political interests’.[96] As Onus demonstrates, it extends to an interest that reflects a cultural or spiritual interest. The advantage the plaintiffs in Onus stood to gain was preservation of relics to which they had a special connection.
[94]Maguire [2020] VSCA 172, [65] (Ferguson CJ, Kyrou and Niall JJA) citing Onus 149 CLR 27, 73; [1981] HCA 50; (1981) (Brennan J).
[95]Bateman's Bay 194 CLR 247 [42]; [1998] HCA 49 (Gaudron, Gummow and Kirby JJ).
[96]ACF (1980) 146 CLR 493, 547; [1980] HCA 53.
In this case, Kinglake FF contends that the relevant logging operations will result in the unlawful destruction of part of the forest environment. Should it succeed in obtaining the relief it seeks, it will have gained an advantage (or perhaps not suffered an unlawfully imposed disadvantage), in respect of the particular forest to which it is connected — that is, the forest’s preservation. Achieving such an outcome would be consistent with the observations of Gibbs J in ACF.
Conclusion
It follows from the above that ACF can be distinguished. The outcome in ACF does not control the outcome in this case. In our view, Kinglake FF has demonstrated a sufficient interest in the subject matter of the litigation. In the context of the issues in dispute and the regulatory context, it occupies a different position to other members of the public. It does not merely rely on strongly held views and opinions.
The judge was correct to conclude that Kinglake FF had standing to bring the proceeding. We would give leave to appeal but dismiss the appeal.
21
26
0