Snowy Mountain Bush Users Group Inc v Minister for the Environment

1. [1]

   The plaintiff is a not-for-profit voluntary organisation incorporated on 23 December 2003 which advocates for right to freedom of access to Kosciuszko National Park (“KNP”) for sustainable recreational use by current and future generations.

2. [2]

   The plaintiff seeks in an amended summons filed 6 June 2024 declarations, an injunction, and an order in the nature of certiorari, relating to a decision by the first defendant, the Minister for Environment, (“the Minister”) on 23 October 2023 to amend the Kosciuszko National Park Wild Horse Heritage Management Plan and in relation to the implementation of that plan. In short, the amendment to the Management Plan (“the Amended Plan”) permitted the aerial shooting of wild horses within KNP to reduce their numbers. The plaintiff seeks a declaration that the Amended Plan is invalid, that the decision to adopt it should be set aside, a declaration that the defendants are acting in contravention of s 10 of the Kosciuszko Wild Horse Heritage Act 2018 (NSW) (“the KWHH Act”), and an injunction prohibiting the defendants from continuing with aerial horse culling operations in the KNP.

3. [3]

   The plaintiff also seeks an extension of time to commence the proceedings to 7 May 2024, being the date of the filing of the original summons.

4. [4]

   Ground 3 of the amended summons asserts that representations made by the second defendant, the Secretary of the Department, (“the Secretary”) to the Minister, were misleading and contained a material error with the result that the Minister committed jurisdictional error in adopting the Amended Plan. Ground 4 alleges that the Minister, when deciding to adopt the Amended Plan, made an error of law in relation to the use of aerial shooting of wild horses as a control method and thereby committed jurisdictional error. Ground 5 alleges that the Minister, when deciding to adopt the Amended Plan, acted in a legally unreasonable way in relation to the use of aerial shooting as a control method and thereby committed jurisdictional error.

5. [5]

   Ground 1 alleges that both defendants are acting contrary to law in purporting to carry out and give effect to the Amended Plan. This was said in the amended summons to amount to jurisdictional error, but that is no longer asserted. The essence of ground 1 is simply that the implementation of the Amended Plan is contrary to law.

6. [6]

   In summary, the plaintiff says in relation to the grounds:

The amendments to the original plan

1. [7]

   Prior to October 2023, the Kosciuszko National Park Wild Horse Heritage Management Plan (“the Plan”) adopted under the KWHH Act did not permit the use of aerial shooting as a control method in relation to wild horses in the KNP.

2. [8]

   A Decision Brief was forwarded by the Secretary to the Minister on or about 27 July 2023 (“the First Decision Brief”). Its purpose was to make a direction to the Secretary to prepare a draft amendment to the Plan.

3. [9]

   The First Decision Brief informed the Minister that the Plan, adopted on 24 November 2021, required the wild horse population to be reduced to 3,000 horses in 32% of the KNP by the end of June 2027. It said that on current estimates there were around 19,789 horses across 53% of the KNP. The horses were significantly impacting ecological, cultural and recreational values in the park.

4. [10]

   The First Decision Brief went on to say:

5. [11]

   On 27 July 2023, the Minister directed the Secretary to prepare a draft amendment to the Plan that would adopt and approve aerial shooting as a control method.

6. [12]

   Following the Minister’s direction on 27 July 2023, a draft amended plan was prepared and exhibited for public comment between 8 August and 11 September 2023. A total of 11,002 representations were received as part of the consultation. On or about 6 October 2023, the Secretary provided a Decision Brief (“the Second Decision Brief”) to the Minister in relation to the Minister’s consideration whether to adopt the amendments to the Plan.

7. [13]

   The Second Decision Brief relevantly said:

8. [14]

   Tab 11 (referred to above) was a document entitled “Literature review on humaneness and effectiveness of aerial shooting of feral horses” (“the Literature Review”), written by Professor Elissa Cameron who is Professor of Wildlife Ecology at the University of Tasmania, and was a member of the Independent Technical Reference Group who have been advising on the issue of the wild horses since at least 2015. The Literature Review relevantly said:

9. [15]

   The Literature Review then set out a table prepared from a number of studies of aerial shooting of a variety of wild animals. The table provided information about what percentage of the animals were rendered instantly insensible and factors which might have informed those percentages. The Literature Review then said:

10. [16]

    Amongst other things that were contained in the Second Decision Brief were the matters required to be provided to the Minister pursuant to s 8 of the KWHH Act, being (a) the draft plan, (b) any representation on the draft plan by the Secretary, (c) any representations received under section 6 or 7, and (d) a summary of any representations received under section 6.

11. [17]

    In the part of the Second Decision Brief entitled “Summary of Representations”, the Secretary informed the Minister that a total of 11,002 representations were received. They were contained in a USB attached to the Brief. The Brief said:

12. [18]

    In relation to Amendment 5.2 (Aerial Shooting) the following appeared:

Table 5

1. [19]

   On 23 October 2023 the Minister decided to adopt the Amended Plan.

The Amended Plan

1. [20]

   The Amended Plan relevantly provided:

Grounds of appeal

1. [21]

   It is convenient to deal with the grounds in the order they were argued.

2. [22]

   Ground 3 said this:

3. [23]

   The plaintiff accepted that, for it to succeed, it had to establish three propositions. First, the issue of animal welfare implications of aerial shooting is central to the question of whether to adopt aerial shooting as a control method, and the Minister was legally obliged to consider that matter. Secondly, the summaries provided to the Minister on that topic were obviously incomplete and did not provide a fair account of the relevant information with the result that the Minister made a legal error in making the decision. Thirdly, the incomplete and misleading summaries were not immaterial on the basis that the minister can be taken to have read and considered some further underlying material in the brief.

4. [24]

   It became clear during the course of argument that, although the ground made reference to the representations and the summary of representations pursuant to s 8(d) of the KWHH Act being misleading or containing material error, the ground was actually concerned with the summary provided by the Secretary to the Minister and the recommendations made by the Secretary in response to the summary of representations recorded pursuant to s 8(b).

5. [25]

   The plaintiff pointed to s 4 of the KWHH Act which provides:

6. [26]

   The plaintiff submitted that what was contained in the Amended Plan at 6.2 (see [20] above), particularly the references to legislation and codes concerned with prevention of cruelty to animals, demonstrates the centrality of animal welfare concerns.

7. [27]

   The plaintiff submitted that all the Minister was told about animal welfare in the body of the Brief was the italicised paragraph set out at [13] above, reproduced here:

8. [28]

   The plaintiff submitted that a comparison between the summaries provided to the Minister and the Literature Review, and the reasoning on which the Literature Review was based, demonstrates that the summaries did not give a fair account of the underlying material to the Minister for the following reasons.

9. [29]

   First the summaries presented aerial shooting as a control method that resulted in equivalent or better animal welfare outcomes than other control methods as a general proposition, without qualification or condition. On the other hand, the conclusions reached in the Literature Review were made on the basis of material that was highly contingent and qualified.

10. [30]

    There was only one survey of aerial shooting of wild horses, and that was conducted in 2017. It was known as the 2017 Hampton Survey. This survey involved “head shooting” only, it involved 37% of horses not being rendered immediately insensible, it occurred in a flat, arid and environment with few trees in Central Australia, and involved chase times of less than one minute. Although the author of the Literature Review relied on the work of the ITRG in relation to animal welfare outcomes of aerial shooting in 2015, its findings of acceptable animal welfare outcomes were what is termed “Scenario 1”, (where horses are chased for less than one minute, are rendered insensible with the first shot, and do not recover consciousness prior to death). The ITRG also concluded that aerial shooting should only occur in open areas with minimum high canopy vegetation. The plaintiff submitted that none of these qualifications in the 2017 Hampton Survey and the ITRG 2015 were explained to the Minister in the relevant summaries, yet they were critical.

11. [31]

    Secondly, the plaintiff submitted that summaries provided to the Minister suggested that some change had occurred in the scientific literature in relation to animal welfare outcomes of aerial shooting since the plan was first adopted, such that the Minister could be satisfied that aerial shooting led to the best animal welfare outcomes. However, the plaintiff submitted that the critical material relied on in the Literature Review was not new or even recent. The 2015 report of the ITRG had been available for eight years and had only concluded that best practice aerial shooting “can have” the lowest negative animal welfare impact of all lethal control methods. Further, a report of the Scientific Advisory Panel in 2020 had considered the 2017 Hampton Survey and said that it provided “insufficient evidence” to reach a firm conclusion about the animal welfare impacts of aerial shooting. That information was not conveyed to the Minister.

12. [32]

    Thirdly, the plaintiff submitted that the goal of the Literature Review was stated to be “to determine if the 2015 humanness assessment is supported by any subsequent research”. However, the plaintiff submitted that nowhere was the Minister told this or told of the particular conditions by which the ITRG considered that aerial shooting could led to acceptable animal welfare outcomes.

13. [33]

    Fourthly, the plaintiff submitted that the author of the Literature Review expressly accepted that for a “minority” of horses subject to aerial shooting, animal welfare impacts would be closer to “Scenario 2” in the ITRG assessment (extended chase greater than five minutes, wounding, regaining consciousness before death). That was also not brought to the attention of the Minister.

14. [34]

    The plaintiff submitted that there is nothing to suggest that the Minister read or otherwise considered the Literature Review itself rather than the summaries of it provided by the Secretary. The second Decision Brief expressly requested the Minister to consider certain tabs of which Tab 11 (the Literature Review) was not one.

15. [35]

    The defendants submitted that the KWHH Act places no limitation on the control methods that can be authorised in a plan and makes no reference to animal welfare, either in relation to the making of a plan or amending a plan. The Minister was not required by the legislation to consider whether a control method was humane or had the lowest animal welfare impact.

16. [36]

    The defendants criticised the reliance by the plaintiff on two isolated passages in the recommendations in response to the representation made about animal welfare outcomes. The defendants submitted that the passage as a whole drew the Minister’s attention to the Literature Review and the evidence that successful aerial operations depend on using highly skilled and experienced shooters and pilots, the use of multiple shoots, shooting in relatively open areas and the application of welfare standards consistent with Commonwealth and NSW animal welfare legislation, regulations and codes of practice. Further, the defendants submitted that the recommendations as a whole reminded the Minister that if aerial shooting was approved and used, National Parks and Wildlife Service would develop a standard operating procedure with independent expert veterinary and animal welfare advice which would be audited regularly by animal welfare experts.

17. [37]

    The defendants submitted that the plaintiff acknowledged that the conclusions reached in the Literature Review were that aerial shooting led to appropriate animal welfare outcomes in some conditions but not in others. The defendants submitted that nothing in the material briefed to the Minister as a whole contradicted that claim, and submitted that the Literature Review plainly made that point.

18. [38]

    The defendants submitted that it is clear that the documents read as a whole advised the Minister that aerial shooting can be better than or equivalent to other forms of control provided certain conditions were applied, including trained shooters. The defendants submitted that, to the extent that the plaintiff argues to the contrary, the argument is an attempt at a merits review.

19. [39]

    The defendants submitted that animal welfare is merely one factor to be taken into account. The defendants submitted further that the precise method of implementation of any particular control method was not a matter the Minister was statutorily bound to take into account. The provisions of the KWHH Act do not elevate animal welfare above the protection of the environment.

20. [40]

    The defendants submitted that even if the Court were to find that any statement or summary given to the Minister was incomplete or inaccurate, it would not follow that the Minister thereby committed jurisdictional error. Reliance was placed on Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11;(2024) 98 ALJR 594 at [35]-[38]. The defendants submitted that a factual misstatement does not give rise to jurisdictional error. It could not be said that the Minister failed to take into account welfare considerations in deciding to amend the plan to authorise aerial shooting. The Minister clearly did so, and the consequence is that, even if the impugned statements in the summaries were incomplete and misleading, they would not vitiate the Minister’s decision.

21. [41]

    The KWHH Act relevantly provides:

22. [42]

    Section 9 specifies only three groups of things which must be considered by the Minister. Section 5 sets out what is to be dealt with in the draft plan. That requires mandatory consideration of the matters in s 72AA of the National Parks and Wildlife Act 1974 (NSW) (“the NPW Act”). Animal welfare is not included in either ss 5 or 9. The plaintiff submitted that animal welfare is contained within the understanding of “heritage value” of the horses. The submission relied on s 4 of the KWHH Act and, presumably although not clearly articulated, the fact that the draft plan is by virtue of s 5(2) to identify and protect that heritage value. That heritage value is, however, of “sustainable” wild horse populations. That appears to recognise that the population of wild horses needs to be culled from time to time. How that occurs must have regard to legislation concerned with humane treatment of animals including their killing, such as the Prevention of Cruelty to Animals Act 1979 (NSW) (“the PCA Act”).

23. [43]

    Another likely reason for animal welfare being a mandatory consideration is that the Minister is required to consider the representations of the Secretary and of the “other persons”, being members of the public by virtue of s 6. It is clear that a significant issue in those representations was the issue of animal welfare. That was at least partly because 73% of public submissions of those opposed to aerial shooting (18% in total) voiced concerns about impacts on animal welfare. Those representations were summarised in the Second Decision Brief, and the Secretary provided recommendations about them. Both were required to be considered under s 9. If the Minister did not do so, jurisdictional error would be established: Craig v The State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82].

24. [44]

    For these reasons, and given what is set out in section 6.2 of the Amended Plan and what can be discerned from the previous iteration of the Plan by reason of the amendments proposed (the unamended Plan was not in evidence), it should be accepted that consideration of animal welfare is a mandatory consideration in the preparation of the plan or its amendment. What must, however, be borne in mind is that animal welfare was not the only mandatory consideration, nor the most significant.

25. [45]

    Nor can there be any doubt that animal welfare considerations were certainly taken into account by the Minister in approving the Amended Plan. It was the information provided to the Minister about those animal welfare concerns which gave rise to the principal challenge to the Minister’s decision.

26. [46]

    In McQueen the High Court determined the issue of what information a Minister, exercising a power personally, is obliged to consider, and the extent to which the Minister can rely on information provided by the Department, including summaries of submissions. It was accepted in that case that the Minister did not read or consider actual representations made by the other party, but only submissions and draft reasons provided by the Department.

27. [47]

    The joint judgment of Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ said:

28. [48]

    There are two significant differences between the position in McQueen and the present case. First, the Minister in the present case had not only the summary of representations and the Secretary’s recommendations in response to those summaries, but she also had the underlying documents that formed the basis of the Secretary’s commentary and recommendations. Secondly, it is not suggested in the present case that the representations were not properly summarised. The challenge was, rather, to the Secretary’s recommendations. The former of those differences is significant, but I accept that McQueen is relevant analogously to some extent.

29. [49]

    Bearing in mind the principles set out in McQueen, I do not consider that the Minister’s decision was made on the basis of incomplete, inadequate, misleading or unfair information. The Secretary was not obliged to draw to the Minister’s attention every fact its officers knew about aerial shooting outcomes in terms of animal welfare. One reason for that is that it was no part of the Minister’s task to reach a conclusion on how the aerial shooting was to be carried out. It was not for the Minister to weigh up the relative impacts of one method of conducting aerial shooting over another, nor to be satisfied that all outcomes would fall within Scenario 1.

30. [50]

    Contrary to the plaintiff’s submission (set out at [27] above) much more information than what was contained in that paragraph was provided to the Minister about animal welfare concerns.

31. [51]

    First, what was contained in the body of the Second Decision Brief was this:

32. [52]

    The italicised portion (above) was taken from the Literature Review (set out at [14] above in the second paragraph of the extract). The plaintiff, nevertheless, was critical of the Secretary omitting the word “therefore” before the word “results”. The omission was scarcely surprising because the details in the Literature Review were not set out in that part of the Second Decision Brief. Nor did they need to be set out there. The material was contained in the Literature Review to which specific reference was made in the same paragraph.

33. [53]

    The plaintiff submitted that there was nothing to suggest that the Minister had read the Literature Review, partly because it contained no markings and partly because it was not identified within the Recommendations at the beginning of the Second Decision Brief. In my opinion, it should not be inferred that the Minister did not read nor refer to the Literature Review. It was expressly identified in the paragraph set out above, and it is for the plaintiff to discharge its onus of proving what it asserts.

34. [54]

    Even if it could be shown that the Minister did not have any regard to the Literature Review, I do not consider that what was contained in the Second Decision Brief was misleading or inadequate. It was nowhere being asserted that in every case aerial shooting would lead to outcomes in accordance with Scenario 1. It was self-evident that such could not be the case. The 2017 Hampton Survey (a large study involving about 1000 horses) produced a result of 63% of horses rendered insensible instantly. It was accepted that a minority was closer to Scenario 2 but that was explained (as the Literature Review noted) by shooter skill.

35. [55]

    Further, more aspects of the Literature Review were set out in the Secretary’s Recommendations when responding to the summaries of the arguments put forward by the members of the public against aerial shooting. These are contained in the Table 5 in [18] above but should be repeated here:

36. [56]

    In the passage in the Second Decision Brief (set out at [13] above under the heading “Draft standard operating procedure for preliminary program has been prepared”), the Minister was told that if she decided to adopt the proposed Amended Plan, aerial shooting “would be carried out to the highest animal welfare standards”, that this would involve the development of a standard operating procedure (“SOP”) which would be informed by “independent expert veterinary and animal welfare advice”. A similar statement was made at the conclusion of the Secretary’s Recommendation following the passage set out above (at [55]).

37. [57]

    Some detail in that regard was provided to the Minister in the document annexed to the Second Brief at Tab 12 (the Preliminary Program SOP), immediately following the Literature Review. Tab 12 was specifically drawn to the Minister’s attention, and she indicated by a tick at the front of the Second Decision Brief that she had noted the draft SOP.

38. [58]

    The fact that a SOP was to be prepared in relation to how, precisely, the aerial shooting was to be carried out, is a clear indication that the Minister was not required to immerse herself in the possible methods to be employed. It is also a clear indication that the statements made in the Second Decision Brief by the Secretary cannot be regarded as categorical statements of outcomes from the proposed aerial shooting. Those statements were appropriately extracted from the Literature Review having regard to what was proposed as discussed in the Preliminary Program SOP.

39. [59]

    The plaintiff drew attention in some detail to what was contained in the report of the ITRG in 2015 entitled “Assessing the humaneness of wild horse management methods”, and in the report of the Scientific Advisory Panel (SAP) in 2020 to submit that best practice for aerial shooting contained the qualifications which those documents discussed. I do not accept that the detail discussed in those documents and others had to be drawn to the Minister’s attention. That information was not material to the Minister’s decision because her obligation was to consider issues of animal welfare, not to determine the methods by which animal welfare was to be protected. In any event these documents do not say that Scenario 1 outcomes are the only acceptable outcomes in animal welfare terms. Further, the SAP 2020 report contained a list of control methods that were not recommended. Aerial shooting was not amongst them.

40. [60]

    The plaintiff’s submissions, in this regard, tended to verge towards a merits review of the decision to authorise aerial shooting. For example, attention was drawn to where in the SAP it was said that there was limited data on actual animal welfare outcomes for all available methods of control. The submissions seemed to argue that unless Scenario 1 outcomes were achievable in all cases, aerial shooting should not be permitted. That is a challenge based on merits and not on whether there was jurisdictional error.

41. [61]

    The present challenge to the Minister’s decision is, and only can be, a challenge based on the information that was supplied to the Minister, and on her decision based on that information. Nothing that was contained in the Second Decision Brief guaranteed that there would be the best outcome in all cases.

42. [62]

    It is necessary to reiterate what was said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Brennan J said at 65 (in a passage picked up by the High Court in McQueen at [19]):

43. [63]

    The plaintiff’s complaint, evident from the detail the Court was taken to by the plaintiff’s counsel from the various documents, papers and studies, was in substance that the Secretary should have provided to the Minister far more detail about animal welfare considerations than was contained in the Second Brief, or at least to have provided the information in the substantive early parts of the Brief rather than in attachments.

44. [64]

    The Minister was provided with the Literature Review which considered the then current state of knowledge about contingencies that affected animal welfare outcomes. What was set out in the Second Decision Brief contained an accurate summary of the Literature Review with reference being made to the contingencies (the skill of the pilots, shooters and the location of the shooting) (Cf the italicised extracts from the Literature Review at [14] and [15] above with the italicised portion at [13] above and what appears in Table 5 at [18] above).

45. [65]

    As noted, the Second Decision Brief said that a SOP would be developed with reliance on experts in animal welfare. That would be finalised based on outcomes of a preliminary program. Thereafter, the matter would be under active, ongoing review.

46. [66]

    The information provided to the Minister was not inadequate or misleading. In terms of the Minister’s obligation to consider animal welfare, no material information was omitted by the Secretary.

47. [67]

    It needs to be stressed that animal welfare was not the only consideration for the Minister, nor was it a paramount consideration. As the document in the Second Decision Brief at Tab 6 made clear, other considerations included the management of the wild horse population to be integrated with aerial shooting of other target species, the need to minimise the environmental and heritage impact of the horse population, and the need to move quickly to keep the horse population down because of the natural and indigenous cultural values of the KNP.

48. [68]

    In circumstances where animal welfare considerations were but one factor to be considered, where the Second Decision Brief contained the relevant information about welfare outcomes in the Literature Review and that Literature Review was expressly referred to in the body of the Second Decision Brief, and where the Secretary had properly extracted aspects of the Literature Review including references to the qualifications to outcomes, I do not consider that the Minister’s decision was made other than on the basis of relevant and sufficient information.

49. [69]

    This ground is not made out.

50. [70]

    Grounds 4 and 5 were in these terms:

51. [71]

    The plaintiff submitted that s 6.3 of the Plan provides that aerial shooting is for use in any area of the KNP. The plaintiff submitted that the Minister appears to have concluded from clause 6.2 of the Plan (dealing with animal welfare) that the use of aerial shooting in any area of the KNP was consistent with the PCA Act. The plaintiff submitted, however, that in the light of what was contained in ITRG 2015 that the use of aerial shooting in any area of the KNP without preference for other control methods other than by refence to “operational factors” is an approach that is likely to “unreasonably, unnecessarily or unjustifiably” inflict pain upon wild horses, and is thus contrary to s 5 of the PCA Act.

52. [72]

    The plaintiff submitted that because the Amended Plan stated that there was no hierarchy or preference between control methods, and in the light of known animal welfare risks arising from aerial shooting there was no evident or intelligible justification for the Minister to proceed in that way. Accordingly, the Minister’s approach was submitted to be legally unreasonable.

53. [73]

    What is understood as legal unreasonableness was set out by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. Tthe joint judgment of Hayne, Kiefel and Bell JJ said:

54. [74]

    Li was concerned with legal unreasonableness in relation to a discretionary decision made under a statutory provision. Both parties accepted, however, that, because the present matter involved delegated legislation, being the Amended Plan, the higher standard of legal unreasonableness identified in Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3, was the appropriate test. In that case, French CJ said:

55. [75]

    Although the plaintiff’s focus was on the fact that aerial shooting was said to be for use in any area of the KNP, that tended to ignore what was set out in clause 6.2 of the Plan (set out at [20] above). That clause made clear that all control methods would be implemented consistent with relevant animal welfare legislation, and that standard operating procedures would be developed following engagement with the Royal Society for the Prevention of Cruelty to Animals and relevant specialists as required. The Amended Plan also said that standard operating procedures would be developed that were tailored for use in the KNP.

56. [76]

    In those circumstances, there was no error of law in the Minister’s decision, nor can the Minister’s decision be said to be unreasonable even to the Li standard of unreasonableness, and certainly not in terms of the test set out in Adelaide City Corporation. The decision was within the contemplated ambit of power. I have already concluded that the Minister took into account relevant animal welfare considerations when authorising the Amended Plan.

57. [77]

    The complaint in these grounds was also similar to the challenge to ground 3. It was not the Minister’s task to decided how or where the aerial shooting was to take place. That is an operational matter that forms part of a consideration of the merits of the decision.

58. [78]

    These grounds fail.

59. [79]

    Ground 1 said this:

60. [80]

    The plaintiff submitted that the Amended Plan is to be carried out in accordance with the various requirements set out in the Amended Plan including the 2011 SOP and the NPWS Aerial Shooting SOP 2023. The plaintiff submitted that those two documents were inconsistent because the SOP 2011 said that aerial shooting should not be done if the nature of the terrain reduces accuracy, resulting in too many wounding shots, and that target horses should be mustered away from areas of dense vegetation before being shot. On the other hand, nothing was said in the SOP 2023 about shooting only in open areas and not in areas of dense vegetation.

61. [81]

    The omission in the SOP 2023 was said to be deliberate because in the report of the preliminary program, the following appeared:

62. [82]

    The plaintiff submitted that other aspects of SOP 2011 were not reflected in SOP 2023. Those concerned procedures that resulted in Scenario 1 outcomes. Nor, the plaintiff submitted, were there considerations under the PCA Act having regard to the definition of cruelty in s 4(2) of that Act. The plaintiff submitted that the shooting has not been subject to any animal welfare assessment.

63. [83]

    In those ways, the plaintiff submitted, the Amended Plan could not be implemented in accordance with its requirements.

64. [84]

    Section 10 of the KWHH Act requires the Amended Plan to be carried out and given effect.

65. [85]

    In my opinion, this ground of appeal fails for a number of reasons. First, the SOP 2011, which “is a guide only”, does not prohibit aerial shooting in areas of high vegetation. It allows that it might occur. Under the heading “Application” the following appears:

66. [86]

    Secondly, it was a guide put in place at a time when aerial shooting was not permitted in New South Wales. The SOP 2023 was specifically devised in the light of the changes to the Plan to permit aerial shooting. In some ways it is inconsistent with the development in learning that has occurred since it was adopted. For example, under the heading “Procedures” the following appears:

67. [87]

    Thirdly, in regard to vegetation, SOP 2011 and SOP 2023 are capable of being read together since SOP 2023 does not require or even authorise aerial shooting in areas of heavy cover.

68. [88]

    Fourthly, the Amended Plan says:

69. [89]

    The Amended Plan requires the horse population to be reduced to 3000 by 30 June 2027. That has to be done having regard to the topography and the vegetation in the KNP, hence the need for tailoring the procedures for use in the KNP having regard to what was contained in the report of the preliminary operation (at [81] above).

70. [90]

    Fifthly, even if there is a measure of inconsistency between documents that are referred to as being relevant to animal welfare outcomes, implementation of the plan is not rendered invalid or unlawful by the method of implementation. In Neilson v Secretary, Department of Planning and Environment [2024] NSWCA 28 Payne JA (Ward P and White JA agreeing) said:

71. [91]

    Sixthly, the evidence clearly establishes that an animal welfare assessment had been carried out for the preliminary program. The letter from the RSPCA dated 1 December 2023 reads as follows:

72. [92]

    Finally, the only evidence of what has happened in relation to the carrying out of the aerial shooting is what is contained in the report of the preliminary program. The Executive Summary reads as follows:

73. [93]

    There is no evidence that the Amended Plan is being carried out contrary to law, whether the PCA Act or otherwise. The evidence is to the contrary.

74. [94]

    This ground fails.

Standing

1. [95]

   In the light of my conclusions about the grounds of appeal it is not strictly necessary to say anything about the two remaining issues that were argued, being the question of the plaintiff’s standing and the need for an extension of time to bring the present proceedings. However, in deference to the arguments presented, and in case this matter goes further, I will say something briefly about each of these issues.

2. [96]

   The plaintiff submitted that it had a special interest in bringing the proceedings and, as a result, has standing to do so. In support of its special interest, the plaintiff pointed to the following matters:

3. [97]

   Evidence was given of these matters by Henry Filtness who is the p resident of the plaintiff.

4. [98]

   The defendants drew attention to the relationship between the KWHH Act and the NPW Act. Section 81(4) of the NPW Act provides that if the Minister has adopted a plan of management under that Part of the NPW Act no operations may be taken in relation to the land to which the plan relates unless the operations are in accordance with the plan. Section 193 of the NPW Act then provides:

5. [99]

   By contrast, s 12 of the KWHH Act excludes the operation of s 81(4) of the NPW Act, presumedly because s 10 of the KWHH Act mandates that an adopted plan must be carried out and given effect to by the Secretary. However, the defendants submitted, there is no equivalent provision to s 193 in the KWHH Act, providing an indication that the plaintiff has no standing.

6. [100]

   The defendants submitted that, in any event, the plaintiff does not have a special interest that would give it standing to bring judicial review proceedings. Reliance was placed on what was said by Gibbs J in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 526-527, 530 and 531; and to what was said by Brennan J in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 74.

7. [101]

   The defendants submitted that the following matters provide a strong basis for concluding that the plaintiff does not have a special interest sufficient to confer standing:

8. [102]

   In South-East Forest the plaintiff was a group founded in 2001 and incorporated in 2010, having as its objects and purposes the carrying out of research, auditing and surveys of state forests, including documenting breaches of approvals, agreements and licenses in respect of state forests, and for the purpose of producing written information about the environment, making submissions to government and conducting walking tours of state forests.

9. [103]

   The question was whether the plaintiff lacked standing to restrain the Forestry Corporation from conducting certain forestry operations in state forests unless certain steps were taken to minimise the effects of such logging on some native species.

10. [104]

    Acting Justice Griffiths (with whom Adamson JA and Basten AJA agreed) said this:

11. [105]

    In some additional reasons of his own, Basten AJA said:

12. [106]

    In relation to the plaintiff’s standing to seek a declaration or injunction (ground 1 of the appeal) the joint judgment of Gaudron, Gummow and Kirby JJ in Bateman’s Bay Local Aboriginal Land Council & Anor v The Aboriginal Community Benefits Fund Pty Ltd & Anor (1998) 194 CLR 247; [1998] HCA 49 said:

13. [107]

    Similarly, in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; (2023) 408 ALR 381 the joint judgment of Kiefel CJ, Gageler and Gleeson JJ said at [62]:

14. [108]

    In my opinion, the plaintiff has a special interest sufficient to give it standing to seek the relief contained in the amended summons for the following reasons.

15. [109]

    First, the group has been in existence for more than 20 years and its purposes relate generally to the welfare and heritage of the KNP, albeit, largely for the benefit of the different and varying interests of its members. Some of those interests relate to the care of the environment of the KNP, and the wild horses are an integrally related issue to the KNP’s environmental status and wellbeing.

16. [110]

    Secondly, in the Second Reading Speech in relation to the Kosciuszko Wild Horse Heritage Bill 2018 (NSW) Mr Barilaro, the Minister for Regional NSW, said this:

17. [111]

    It should be noted that all of the people mentioned are members or former members of the plaintiff and Peter Cochran was the president of the plaintiff at the time. The acknowledgment by the Minister of the plaintiff’s involvement in matters which led up to the making of the KWHH Act is significant in a consideration of whether the plaintiff has a special interest.

18. [112]

    Thirdly, the plaintiff was identified as what is described as a “major stakeholder” both in an email dated 8 August 2023 seeking submissions on the draft Amended Plan, and in a list of major stakeholders as part of the material in the Second Brief to the Minister. That appears to me to show the plaintiff was regarded by the second defendant as an organisation of some significance specifically in relation to the Plan and its proposed amendment.

19. [113]

    Finally, I do not think that is of any significance that the KWHH Act does not contain any equivalent to s 193 in NPW Act. That provision might be regarded as one that widened the scope of the common law enabling a personal group with a special interest to seek some form of civil relief in relation to legislation and its enforcement and observation. It does not suggest that a person or group with a ”special interest” is, by implication, excluded from standing under the KWHH Act. Common law principles of standing still apply.

Extension of time

1. [114]

   The decision of the Minister was made on 23 October 2023. The proceedings commenced on 7 May 2024. To the extent that the claims are brought pursuant to Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) they are out of time. Rule 59.10 requires proceedings for judicial review to be commenced within three months of the date of the decision although sub-r (2) enables the Court to extend the time. Sub-rule (3) provides:

2. [115]

   As far as ground 1 is concerned, discretionary relief is being sought by way of a declaration and an injunction to halt the aerial shooting. Equitable principles of laches and delay are relevant considerations.

3. [116]

   The plaintiff submitted that the following matters justify an extension of time in relation to grounds 3 to 5:

4. [117]

   The defendants’ principal submission in relation to an extension of time was that by reason of the delay the aerial control operations had been undertaken over a lengthy period. The defendant also submitted that Mr Filtness knew that the Amended Plan had been made at the end of October 2023 and that the only surprise he had about the commencement of the operation was the extent of the area of the KNP in which it was employed. The defendant submitted that there was no explanation for the delay after the plaintiff was advised of the time limitation in February 2024 before proceedings were commenced in May 2024.

5. [118]

   In Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114, Meagher JA (with whom Macfarlan and White JJA agreed) said:

6. [119]

   I accept that the plaintiff has been very tardy in commencing these proceedings, especially since the time they became aware that the aerial shooting had actually commenced. Taking into consideration the matters in r 59.10(3) and the additional matters identified in Gilmore Finance, two things are significant enough to justify an extension of time being given. First, the matter is both a matter of significant public interest and raises sufficiently arguable issues that an extension should not be refused. Secondly, not only is there little or no prejudice to the defendants, but the delay has been of benefit to the defendants in the interim of carrying out the aerial shooting and thereby reducing the horse population pending the commencement of the proceedings.

7. [120]

   Since a declaration and an injunction is sought in relation to ground 1, notwithstanding that the remedies are sought to uphold what is said to be compliance with both statute and delegated legislation, the Court has an ultimate discretion whether to grant such remedies. Delay in seeking the remedies is a consideration in that discretion even if equitable concepts of laches and delay are not applicable. For the same reasons that I would extend time under r 59.10, I would also not refuse relief in relation to ground 1 by reason of the delay in commencing the proceedings.

Conclusion

1. [121]

   Accordingly, I make the following orders:

   1. (1)

      Extend time for the plaintiff to commence the proceedings to 7 May 2024.

   2. (2)

      Dismiss the amended summons.

   3. (3)

      The plaintiff is to pay the defendants’ costs.