South East Forest Rescue Inc v Forestry Corporation of New South Wales (No 2)

1. [1]

   ADAMSON JA: I agree with Griffiths AJA.

2. [2]

   BASTEN AJA: I agree with the orders proposed by Griffiths AJA and with his reasons. The following observations are not intended to be inconsistent with those reasons, but to supplement them.

3. [3]

   On one view, to address standing at the outset of a proceeding may be premature where standing depends on the statutory context of the applicant’s claim, the nature of the relief sought and the nature of the applicant’s activities in relation to such matters. At least it is desirable to have a clear view of each of those matters.

Statutory scheme

1. [4]

   It is convenient to start with the basis of the claims. Determining who may have authority to bring proceedings in a court to enforce duties or obligations imposed by statute on a public authority requires consideration of both judge-made law and statute. Where the obligations or duties arise under statute, the statute is the proper starting place for consideration.

2. [5]

   There are three statutes having potential relevance in the present case. Their interaction is central to the first question to be addressed, being that raised by the respondent by way of a notice of contention.

3. [6]

   The respondent in these proceedings, the Forestry Corporation of New South Wales, was constituted by s 5 of the Forestry Act 2012 (NSW). It is a statutory State-owned corporation. The principal functions of the Forestry Corporation are to carry out or authorise the carrying out of forestry operations (s 11). The term “forestry operations” is defined to mean a range of activities including “logging operations, namely, the cutting and removal of timber from land for the purpose of timber production”: s 3(1).

4. [7]

   The nature of forestry operations is such that they involve a use of land within the definition of “development” in s 1.4(1) of the Environmental Planning and Assessment Act 1979 (NSW) (Planning Act). Under that Act, development may be permitted without consent, may be permitted with consent, or may be prohibited. The relevant characterisation will be provided by an “environmental planning instrument”. However, these aspects of the Planning Act are disapplied by s 69W of the Forestry Act in relation to forestry operations which are subject to an “integrated forestry operations approval”: s 69W(1) and (2). Accordingly, so long as there is such an approval in force and the approval is not itself subject to legal challenge, there will be no basis to allege a breach of the Planning Act, and the open-standing provision in s 9.45 of that Act will not be engaged.

5. [8]

   A second statutory regime of potential application is the Biodiversity Conservation Act 2016 (NSW) (Biodiversity Act). That Act contains a number of prohibitions against harm to, or destruction of, various areas, animals and plants, including “ecological communities”, having recognised conservation value. In particular, the Biodiversity Act defines “protected animals” as including animals of “a threatened species or threatened ecological community”: s 11.29. The Act contains a process for listing threatened species. [1] Schedule 1 to the Biodiversity Act is headed “threatened species” and lists various animals and plants under three categories, being (i) critically endangered, (ii) endangered and (iii) vulnerable. The Southern Greater Glider is listed as endangered; the Yellow-bellied Glider and the Squirrel Glider are listed as vulnerable. [2] Part 4, Div 5 of the Biodiversity Act provides for the listing of “threatening processes” if a process is one which “adversely affects threatened species or ecological communities”: s 4.32(1). Part 7 deals with biodiversity assessment and approvals under the Planning Act, in particular, the preparation of “species impact statements”.

6. [9]

   Part 11 of the Biodiversity Act provides for “Regulatory compliance mechanisms”. In particular, Div 3 provides for “Interim protection orders”. Section 11.9 provides that the Minister may make an interim protection order in respect of an area of land where there has been a recommendation to that effect from the Environment Agency Head. The Environment Agency Head may make such a recommendation on a number of grounds, including “… the habitat of a threatened species or ecological community”: s 11.8(1)(c).

7. [10]

   Part 13, Div 1 of the Biodiversity Act provides for criminal proceedings with respect to offences under the Act. Authority to take such proceedings is limited to a police officer, the Environment Agency Head, or a person authorised by the latter. [3] Criminal offences include harming or threatening to harm an animal of a threatened species (s 2.1) and damaging the habitat of a threatened species, knowing it to be the habitat of a threatened species (s 2.4). If the activity is unlawful the onus of proving knowledge is reversed: s 2.4(2).

8. [11]

   Section 2.8 provides a defence in the following circumstances:

9. [12]

   With respect to civil proceedings, Pt 13, Div 2 relevantly provides:

10. [13]

    Finally, s 13.17, also in Div 2, provides:

11. [14]

    The Biodiversity Act thus provides in s 13.14 an “open-standing” regime with respect to civil proceedings for breaches of the Biodiversity Act, as well as providing for the Environment Protection Authority (EPA) to bring proceedings for breach of the Biodiversity Act. The significance of the open standing provision is two-fold. First, it demonstrates a statutory intention that there is a public interest in allowing members of the public to enforce the statutory scheme for protection of animals, plants and ecological communities. Secondly, it recognises that which is implicit in the statutory scheme, namely that the animals, plants and communities to be protected have been identified to the level of species and populations. Thus, the nature of the public interest is particular and not open-ended.

12. [15]

    The statutory scheme for enforcement envisages both criminal and civil proceedings by way of enforcement of the identified public interest – a point which has significance when provisions of the Forestry Act are addressed.

13. [16]

    The operation of s 13.17 is less clear: when enacted it undoubtedly applied only to breaches of the Biodiversity Act; whether the addition of s 13.14A and the addition of reference to the EPA in s 13.14(1) in 2018 changed that operation need not be determined.

14. [17]

    It is convenient to turn next to the terms of the Forestry Act, which provides in Pt 4 a general prohibition on the unlawful taking of timber from Crown-timber land and from any State forest or flora reserve: s 38(1). There is an exception with respect to timber taken pursuant to a “licence issued by the Corporation under this Act”. [4] Similarly, the prohibition does not apply in relation to forestry operations carried out by or on behalf of the respondent: s 38(4).

15. [18]

    One form of authority is an “integrated forestry operations approval” granted pursuant to Pt 5B of the Forestry Act. Such an approval can be given for forestry operations in State forests or other Crown-timber lands: s 69K(1). The purpose is stated in s 69L in the following terms:

16. [19]

    As the critical issue in the present proceedings is (or will be if a hearing proceeds) the enforcement of conditions of an approval, and in the light of constraints on challenging activities purportedly carried out in pursuance of an approval, it should be noted that the principles of ecologically sustainable forest management include maintaining the health and vitality of native forest ecosystems and natural heritage values and “ensuring public participation, provision of information, accountability and transparency in relation to the carrying out of forestry operations”. The principles also require the application of the precautionary principle in preventing environmental harm.

17. [20]

    The Forestry Act provides that an integrated forestry operations approval is to set out conditions subject to which forestry operations are to be carried out: s 69P(2)(b). The manner in which those conditions are formulated and operate are discussed by Griffiths AJA, and need not be repeated here. A breach of the conditions is at the centre of the case presented by the applicant.

18. [21]

    An approval is only to be granted “jointly by the Minister for the Environment and the Minister for Lands and Forestry”: s 69N(1). Prior to grant of an approval, public consultation is required: s 69NA(1). Members of the public are to be invited to make representations in connection with a proposed approval, which representations must be considered by the Ministers before the approval is granted: s 69NA(2).

19. [22]

    Further, it is an offence to contravene a “requirement” imposed by an integrated forestry operations approval. The term “requirement” has a broad operation, as the offence-creating section refers to such requirements “however described” imposed on the respondent or a person carrying out forestry operations: s 69SA(2).

20. [23]

    Section 69SB has two purposes. The first is to confer on the EPA a function of “monitoring” the carrying out of forestry operations to which the Part applies, and the function of “enforcing compliance with the requirements of integrated forestry operation approvals”. The second purpose is to note that the Biodiversity Act contains provisions for enforcement of Pt 5B of the Forestry Act and “accordingly” disapplies power to carry out investigations and enforcement under Pt 6 of the Forestry Act and the power to institute criminal proceedings under Pt 7. The section cross-refers to s 13.14A of the Biodiversity Act, which is set out above. However, s 69SB does not affect civil enforcement proceedings. These are dealt with in the following section which is central to the respondent’s contention that no person other than the EPA has authority to bring proceedings: [5]

Contention - Disapplication of open standing provisions

1. [24]

   The notice of contention filed by the respondent challenged the primary judge’s rejection of its submission that no person other than one of those identified in s 69ZA(3) has power to “institute proceedings in a court to remedy or restrain a breach” of Pt 5B of the Forestry Act. In essence, the contention relied upon the fact that s 69SB(1) confers on the EPA a function of enforcing the requirements of an integrated forestry operations approval, which the respondent contended was exclusive. However, this contention must be rejected for a number of reasons.

2. [25]

   First, as the respondent conceded, s 69SB(1) contains no express reference to the power of “any person” to enforce compliance with the requirements of an approval. The conferral of power on the EPA might be thought a standard means of conferring on a public authority a function which, if not exclusively dependent on statute, should be clearly stated by the statute. The intention to do so is self-evident. That s 69SB(1) was not intended to confer exclusive authority is apparent from the other provision upon which the respondent relies, namely s 69ZA(3). That section assumes that other persons, including “a Minister”, a member of the staff of the EPA and, in certain circumstances, another government agency or official, may be able take enforcement proceedings. Section 69ZA(3) does not state that they have such powers, but merely states that the section does not apply to them. If exclusive power had been conferred on the EPA, that provision would be otiose.

3. [26]

   Secondly, s 69ZA(1) only applies to identified statutory provisions: it says nothing about the powers of persons to enforce proceedings which may arise absent a statutory conferral of a right. Thus, in effect, the respondent seeks to insert in s 69ZA(1)(b), after “a provision of an Act”, the words “or the general law”. That inclusion by way of implication cannot easily be justified, nor did the respondent seek to do so; rather it took issue with the primary judge’s reliance on the principle of legality to conclude that standing under general law principles had not been excluded by implication.

4. [27]

   There may be some force in the proposition, accepted by the primary judge, that the absence of an intention to exclude rights under the general law is supported by that principle of statutory interpretation known as the principle of legality. That principle supports the proposition that there should be a clear statutory expression of “an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom” or “fundamental rights”. [6] However, where there is a complex statutory scheme, the identification of statutory purpose and intention is best derived from the legislation itself. [7]

5. [28]

   Importantly, the statutory scheme included no attempt by way of a privative clause to limit the availability of judicial review by way of orders in the nature of prerogative relief. Accordingly, relief remained available pursuant to s 69 of the Supreme Court Act 1970 (NSW) which, though involving statutory recognition of general law principles, left those general law principles largely unaffected. [8] Thus, not only did s 69ZA(1) not engage with the general law, but the applicants were not constrained to enforcement proceedings under statute, but could have sought prohibition or an injunction according to general law principles.

6. [29]

   Finally, although reliance was sought to be placed on statements made by the Minister in introducing the current legislative scheme in 1998, those statements, as Griffiths AJA explains, provide no support to the respondent’s contention. While the Minister said that the clause which was the forerunner of s 69ZA “removes the rights of the third parties to bring proceedings relating to the integrated approval”, [9] that statement was true as far as it went (because the provision disapplied open-standing provisions), but did not expressly address standing under the general law.

7. [30]

   It follows that the respondent’s contention must be rejected: s 69ZA should be understood to operate precisely as its terms indicate, namely as the disapplication of statutory open-standing provisions, which might in their own terms otherwise be engaged. That would disapply s 13.14 of the Biodiversity Act, if it were otherwise engaged.

Principles of general law standing

1. [31]

   The principles by which the courts determine standing in public law matters have given rise over the years to disparate views and a fear that findings in individual cases are difficult to reconcile. There may be some truth in the latter concern, but the correct approach for judges of an intermediate court of appeal is to address the nature of the statutory scheme which has given rise to the subject matter of the proceeding, and the purpose of limiting access to the courts by persons or bodies seeking to ensure compliance with the limits and conditions constraining the exercise of executive powers.

2. [32]

   The enforcement of public duties was once thought to be a monopoly of the Attorney-General, so that any private individual seeking to take that role required the permission or “fiat” of the Attorney. [10] That view has long since been abandoned in Australia. In Victoria v The Commonwealth and Hayden [11] Gibbs J tartly observed, “I would, in Australia, think it somewhat visionary to suppose that the citizens of a State could confidently rely upon the Commonwealth to protect them against unconstitutional action for which the Commonwealth itself was responsible”. To similar effect, Sir Anthony Mason observed, extrajudicially, that Attorneys-General are “not independent of government and cannot be expected to act impartially in deciding whether proceedings should be brought against the government”. [12] In relation to a New South Wales regulatory statute, [13] Craig J observed in Haughton v Minister for Planning and Macquarie Generation [14] that “the ‘gatekeeper’ for the taking of any proceedings is the very Minister whose actions are sought to be impugned as being beyond power”. As will be noted, that last observation has resonance in the present case.

3. [33]

   It is unsurprising, therefore, that the law permits other persons to commence proceedings to enforce statutory obligations of public authorities, whether by orders in the nature of the former prerogative writs, or by way of equitable relief, and particularly an injunction.

4. [34]

   The test now accepted as identifying the criterion for a person to commence proceedings in accordance with the general law is variously described as the existence of “special damage”, a “special interest” or a “sufficient interest”. Each of these phrases involves a level of imprecision. The underlying purpose for such a criterion has been identified in different ways.

5. [35]

   The phrase “special damage” was adopted from the reasoning of Buckley J in Boyce v Paddington Borough Council. [15] However, as the joint reasons of Gaudron, Gummow and Kirby JJ noted in Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd, [16] the requirement that a plaintiff suffer “special damage peculiar to himself” derived from the cause of action in Boyce (being public nuisance), and was replaced in Australian Conservation Foundation v The Commonwealth [17] with a “special interest” test. The joint reasons in Bateman’s Bay also stated:

6. [36]

   Two other possible limitations should be noted. First, a special (or sufficient) interest to permit the commencement of proceedings is not excluded by having an intellectual or emotional concern for the protection of the environment. In Australian Conservation Foundation, Gibbs J stated (at 530):

7. [37]

   However, an intellectual or emotional concern, whilst not sufficient, is not a disqualifying consideration. In Onus v Alcoa of Australia Ltd, [19] Stephen J stated:

8. [38]

   Secondly, despite the prevalence of open-standing provisions, dating in federal jurisdiction from the Patents Act 1903 (Cth), [20] there are statements in the authorities expressing concern that such a provision would be open to abuse “by busybodies and cranks and persons actuated by malice”. [21] However, in commenting on s 80(1) of the Trade Practices Act 1974 (Cth) Deane J stated in Phelps v Western Mining Corporation Ltd: [22]

9. [39]

   The statement was cited with evident approval by Gummow J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd. [23] Further, it has been remarked that the courts have well-established powers to deal with frivolous, vexatious or abusive proceedings. [24]

10. [40]

    Truth About Motorways is a case which bears consideration in the present circumstances. [25] A concern had been raised in earlier judgments as to whether an open-standing provision in federal legislation would involve the conferral of non-judicial power. [26] In rejecting that concern, the High Court treated the issue of standing as immaterial to the determination of whether there was a justiciable matter. It follows that in principle the focus of an inquiry into standing is properly directed to the nature of the breach of duty and the relief sought; the applicant must establish an “interest” in these matters which sets it apart from the public at large.

11. [41]

    In Onus, Stephen J identified the deliberately amorphous criterion of “special interest” as involving “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”. [27]

12. [42]

    This approach is also consistent with that of Brennan J in Onus, cited with approval by the joint reasons in Bateman’s Bay: [28]

13. [43]

    As French CJ observed in Kuczborski v State of Queensland [29] to find that a proceeding raises a “matter” in federal jurisdiction “may not be sufficient to answer the question whether the plaintiff has standing”. And as the joint judgment in Kuczborski explained, “the established requirements as to standing helped to ensure that the exercise of judicial power is informed, as fully as possible, by the ‘concrete adverseness which sharpens the presentation of issues’”. [30] The application of that functional approach is pertinent in the present case.

14. [44]

    Thus, where an applicant establishes that it has the ability to muster expert resources and legal representation to sharpen the presentation of issues, the nature of the interest it must demonstrate in the subject of a justiciable dispute should not be narrowly confined.

Application of principles

1. [45]

   In applying the rules of standing as a threshold criterion to be satisfied in relation to the present proceedings, it is appropriate to assume that the applicant’s contentions as to breaches of the provisions of the Forestry Act and the conditions pursuant to which forestry operations are being undertaken by the respondent, are justifiable. Further, it should be assumed that relief of the kind sought by the applicant is available. In those circumstances, the consequences of not permitting the application to proceed must be appreciated. The principal consequence would be to render unenforceable, in practical terms, an extensive scheme regulating forestry operations so that they do not override the conservation of biodiversity, not in the abstract, but by reference to particular species and particular conduct. The scheme is the product of two Ministers acting together. The statute places enforcement of that detailed regulatory scheme in the hands of the EPA, but in practical terms it is unrealistic to expect that the authority administered by one minister to take curial proceedings against the authority administered by the other minister. Further, if the substance of the claim were that the EPA had failed in its statutory obligation to monitor compliance by the Forestry Corporation, or to investigate complaints in the exercise of its functions, it would in effect by required to sue itself.

2. [46]

   The question as to whether forestry operations should be curtailed in the face of threatened harm to an endangered species such as the Southern Greater Glider is not in issue in this proceeding. That question has been resolved by the statutory scheme under which forestry operations take effect. However, the application of that condition in particular areas and in particular circumstances, which is the subject matter of the proceeding, is not a matter in which members of the public generally have any special interest, expertise, or ability to monitor forestry operations. For the reasons explained by Griffiths AJA, the applicant, through its committed membership, is not only able to undertake those functions, but has demonstrated a willingness to do so over several years. There can be no doubt that it satisfies the requisite criterion for standing to bring these proceedings.

3. [47]

   GRIFFITHS AJA: A central issue in this proceeding, which is raised by ground 3 of the notice of appeal, is whether the primary judge erred in concluding that the appellant lacked standing to bring civil enforcement proceedings in relation to particular integrated forestry operations being carried out by the respondent under Pt 5B of the Forestry Act 2012 (NSW) (Forestry Act). Her Honour found that the appellant lacked standing in the proceedings below in which the appellant sought inter alia to restrain the respondent from conducting any forestry operations in specified compartments in several State forests unless certain steps were taken to prevent or minimise the effects of such logging on various species of gliders. These species are the Southern Greater Glider (Petauroides volans) (Greater Glider), the Yellow-bellied Glider (Petaurus australis) and the Squirrel Glider (Petaurus norfolcensis).

4. [48]

   For reasons which follow, the appeal should succeed on that ground.

5. [49]

   The appellant also contends that the primary judge erred in determining that she had the power not only to dismiss its interlocutory application seeking interim injunctive relief to restrain the respondent from carrying out the forestry operations, but also to determine on a final basis that the appellant’s substantive proceeding should be dismissed for lack of standing (ground 1). The appellant further contends that there was procedural unfairness when her Honour dismissed the appellant’s summons for lack of standing (ground 2).

6. [50]

   For reasons which will be developed, because the appeal should succeed on the issue of the appellant’s standing, there is no need to determine the other two grounds outlined above. There is, however, a notice of contention which must be addressed.

7. [51]

   These reasons for judgment are structured as follows. First, I will outline the statutory framework within which forestry operations are carried out in NSW. I will then outline some background procedural matters and facts before summarising the primary judge’s reasons for judgment in South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of NSW [2024] NSWLEC 7 (PJ or primary judgment). I will then explain why I reject the respondent’s notice of contention (which claims that the primary judge should have held that common law standing was ousted by the statutory scheme). Finally, I will explain why I respectfully consider that her Honour erred in not holding that the appellant has standing to bring the civil enforcement proceedings which are described in the summons filed on 15 January 2024 in the Land and Environment Court (LEC). For convenience, in these reasons I will generally refer to South East Forest Rescue Incorporated as the “appellant”, in relation to both the appeal and the proceeding below, but will refer to it as “SEFR” for the period leading up to its incorporation in September 2010.

The statutory framework for NSW forestry operations

1. [52]

   There were significant reforms in 2018 relating to the conduct and regulation of forestry operations in the State. These reforms were introduced by amendments to the Forestry Act in the Forestry Legislation Amendment Act 2018 (NSW). The provisions of Pt 5B of the Forestry Act included in this analysis were either amended or introduced by this amending Act. It will be necessary to refer later (see at [106] below) to other provisions in both the Forestry Act (which were also either introduced or amended as part of these reforms) and the Biodiversity Conservation Act 2016 (NSW) (BC Act) which are relevant to the notice of contention.

2. [53]

   Part 5B of the Forestry Act contains provisions relating to the making, application and enforcement of approvals for forestry operations in State forests or other Crown-timber lands (see s 69K(1)).

3. [54]

   The expression “forestry operations” is defined in s 3 of the Forestry Act as meaning:

4. [55]

   One of the principal functions of the respondent (which is a corporation established by s 5 of the Forestry Act) is to carry out or authorise the carrying out of forestry operations in accordance with good forestry practice on Crown-timber land or land owned by the respondent. Approvals to carry out forestry operations are granted by the designated Ministers under s 69N of the Forestry Act.

5. [56]

   The purpose of Pt 5B is stated in s 69L(1):

6. [57]

   The principles of ecologically sustainable forest management are defined in s 69L(2).

7. [58]

   Section 69M provides for the granting of approvals for the carrying out of forestry operations to which Pt 5B applies. It relevantly provides (emphasised words in the text are defined terms):

8. [59]

   Section 69P provides for the terms of an integrated forestry operations approval, including for the imposition of conditions and the application or adoption of protocols, codes, standards or other instruments (including protocols prepared by the Environment Protection Authority (EPA)). It provides:

9. [60]

   An integrated forestry operations approval may have effect for a period not exceeding 20 years unless revoked sooner (see s 69Q(1)).

10. [61]

    The integrated forestry operations approval under which the respondent carried out the forestry operations the subject of these proceedings is styled “Coastal Integrated Forestry Operations Approval – Conditions” (CIFOA) which commenced in November 2018. The CIFOA applies to forestry operations in four coastal subregions: the Upper North East subregion, Lower North East subregion, Southern subregion, and Eden subregion, all situated along the coast of NSW. Part 3 of Sch 1 to the CIFOA contains maps which show certain parts of each of the four subregions where the CIFOA does not apply. Both the CIFOA Region (i.e., the entire area covered by the CIFOA) and the subregions are mapped in what are described as “spatial datasets”.

11. [62]

    The CIFOA is a detailed document totalling approximately 80 pages. It contains eight chapters which deal with the following subjects:

12. [63]

    There are express references in the CIFOA to “Protocols”. The Protocols are all contained in a separate document entitled “Coastal Integrated Forestry Operations Approval – Protocols”, which is published by the EPA. One version in evidence is dated September 2023.

13. [64]

    Focusing on the particular CIFOA conditions which are relevant to this proceeding, Conditions 56 and 57 (which relate to targeted flora and fauna surveys and broad area habitat searches respectively) relevantly state (emphasised words are defined terms):

14. [65]

    It is to be noted that Table 2 identifies “Nest, roost or den trees” (one example of which is in Table 4, Ch 4 of the CIFOA) as habitat features that must specifically be searched for during broad area habitat searches.

15. [66]

    Table 4 of Ch 4 (which is in Condition 76) includes a reference to den trees in connection with the reference to the three subject glider species in respect of which there is to be a 50 metre radius exclusion zone:

16. [67]

    It should also be noted that the expression “nest, roost or den” is defined in Protocol 39, which relevantly states (emphasised words are defined terms):

17. [68]

    This definition is at the heart of the parties’ substantive dispute. The dispute relates to what the respondent must do in order to comply with the requirement that it conduct a broad area habitat search (under Condition 57 of the CIFOA), with particular reference to dens associated with the three subject glider species. In brief, the appellant contends that the respondent is obliged to find every hollow-bearing tree in a relevant compartment and to examine sufficient tree-hollows etc. in each identified hollow-bearing tree to determine whether at least one such hollow is used by one of the three subject glider species for roosting, sleeping, resting, breeding, raising of young and communal congregations, shelter, and/or the rearing of young.

18. [69]

    In contrast, the respondent’s position is that its obligations are more limited. It places emphasis upon that part of the definition of “nest, roost or den” in Protocol 39 which refers to “a tree-hollow or other hole, crevice or fissure in a tree, which the subject species [i.e., the three glider species] is seen entering or leaving” (emphasis added). Thus, the respondent contends that sighting one of the three glider species entering or leaving a tree-hollow or other hole, crevice or fissure in a tree is a pre-requisite to it having to take any further steps as part of the search. According to its position, it is insufficient that a glider has been sighted other than one entering or leaving a tree hollow etc.

19. [70]

    Division 3 of Ch 4 of the CIFOA is titled “Retained trees”. Conditions 63 and 64 specifically address “tree retention clumps” and “retained trees” and require the identification and retention of a certain amount of tree retention clumps, and certain types of trees (including hollow-bearing trees). These conditions are to be complied with in accordance with Protocols 22 and 23 respectively.

20. [71]

    Division 4 of Ch 4 contains species-specific conditions for fauna. The outcome statement (which is a little akin to an objects clause, as defined in Ch 1, Div 1, cl 4.1 of the CIFOA) for Div 4 declares that site-specific measures are implemented to mitigate the impact of forestry operations on fauna species and their habitat and to support their persistence. Condition 76 relates specifically to nests, roosts and dens. It requires an exclusion zone to be retained around each nest, roost or den as specified in Table 4 (see [66] above). As noted above, one species-specific fauna condition applicable to the three subject glider species is the maintenance of a 50 metre radius exclusion zone around den trees.

21. [72]

    Condition 21.5 and Protocol 31.3 provide for the EPA to make “site-specific biodiversity conditions” (SSBCs).

22. [73]

    On 31 January 2024, the EPA amended Protocol 31 of the CIFOA (which makes provision for flora species and endangered populations protected by the application of species-specific conditions), so as to add the Greater Glider.

23. [74]

    On 16 February 2024, the EPA issued SSBCs for the Greater Glider in the CIFOA region (the new SSBCs). Additional requirements were imposed in relation to glider habitat retention and the way in which broad area habitat searches are to be carried out. More glider trees are required to be permanently retained (Conditions 6 and 7). Condition 14 now requires each search and survery to be carried out in accordance with quite detailed provisions relating to such matters as the timing and circumstances in which the surveys are to be conducted.

24. [75]

    It is common ground that, under transitional provisions, the respondent is not obliged to comply with the new SSBCs in respect of compartments where forestry operations were commenced prior to 16 February 2024 and where it has conducted a broad area habitat search as required by Condition 57.2.

25. [76]

    I will now briefly describe some procedural issues in the LEC proceedings below.

Some procedural matters in the LEC proceedings highlighted

1. [77]

   The proceedings below have a complex and complicated history, as is reflected in the primary judge’s comprehensive description of it at PJ[1] to [36]. It is unnecessary to repeat that description but I will highlight some selected matters which involve events that are relevant to the appeal.

2. [78]

   On 15 January 2024 (i.e., during the Court’s vacation period), the appellant filed a summons in the LEC’s Class 4 jurisdiction bringing civil enforcement proceedings against the respondent. (The LEC has jurisdiction under s 20(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act) to enforce any obligation, right or duty imposed by a planning or environment law, in circumstances where a “planning or environment law” is defined in s 20(3) to include Pt 5B of the Forestry Act). Injunctive and declaratory relief were sought concerning the respondent’s forestry operations in all areas covered by the CIFOA. The appellant claimed that the respondent was unlawfully failing to look for, identify and record trees containing evidence of the three subject glider species, in breach of Condition 57 of the CIFOA. It also claimed that the respondent failed to protect glider den trees with a 50 metre exclusion zone, in breach of Condition 76.

3. [79]

   On the same day, the appellant filed a notice of motion seeking urgent interlocutory injunctive relief to restrain the respondent from conducting forestry operations in specified State forest compartments covered by the CIFOA (where the Greater Glider and Yellow-bellied Glider had recently been detected) until effective den tree surveys were conducted by or on behalf of the respondent. Both lay and expert evidence was filed by the appellant which was intended to demonstrate, on a prima facie basis, that it had a “special interest” in the subject matter of the proceeding and that the respondent was breaching Conditions 57.2 and 76.1.

4. [80]

   The notice of motion was listed for mention before the primary judge on 23 January 2024. Before then, on 19 January 2024, the appellant served a proposed amended notice of motion which removed certain compartments from the motion filed on 15 January 2024, and also sought to add some additional compartments which were within the CIFOA. The primary judge granted leave for the appellant to remove some compartments where forestry operations had ceased, but refused leave to add any additional compartments (the amended notice of motion). This motion sought urgent interim injunctive relief in respect of 13 compartments in three of the four subregions covered by the CIFOA.

5. [81]

   On 29 January 2024, the appellant sought to file an additional notice of motion (the second notice of motion). It sought urgent interlocutory relief in relation to an additional 19 compartments in all four subregions covered by the CIFOA (being the compartments which it had unsuccessfully sought to include in the amended notice of motion filed on 19 January 2024).

6. [82]

   The hearing of the amended notice of motion took place on 31 January 2024 and judgment was reserved.

7. [83]

   The second notice of motion was listed for mention on 2 February 2024. The respondent’s position, in respect of both the amended notice of motion and the second notice of motion, was that the appellant lacked standing. It urged the Court to determine that question in relation to the relief sought in the amended notice of motion as a final matter, and not simply on a prima facie basis. The respondent suggested that the second notice of motion be listed for hearing after judgment was delivered on the amended notice of motion.

8. [84]

   On 2 February 2024, the second notice of motion was listed for hearing on 8 February 2024. Her Honour indicated that she would deliver judgment on the amended notice of motion the day before.

9. [85]

   In light of the primary judge’s reasons for judgment published on 7 February 2024, which explained why the amended notice of motion was dismissed for lack of standing, the respondent again urged the Court to dismiss both the second notice of motion and the substantive proceedings based on the appellant’s lack of standing. Orders to that effect were made on 8 February 2024. No separate reasons for judgment were published in relation to the making of those orders. Her Honour published a second judgment on 15 April 2024 as to why there should be no order as to costs concerning the orders dated 7 and 8 February 2024 (see South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales (No 2) [2024] NSWLEC 36).

The primary judge’s reasons for judgment dated 7 February 2024 summarised

1. [86]

   The primary judge identified the following four issues relating to standing which required resolution:

2. [87]

   I will now summarise the primary judge’s reasons in relation to each of these issues.

3. [88]

   Her Honour noted at PJ[114] that whilst it had been determined in North East Forest Alliance Incorporated INC1601738 v Forestry Corporation of NSW [2023] NSWLEC 124 that, notwithstanding s 69ZA of the Forestry Act, common law standing can exist to bring judicial review proceedings, there was no decision of a NSW court concerning the availability of common law standing to bring civil enforcement proceedings to enforce the requirements of an integrated operations approval.

4. [89]

   After summarising the parties’ respective submissions on the effect of provisions such as ss 69SB and 69ZA of the Forestry Act and ss 13.3, 13.14 and 13.14A of the BC Act and the “principle of legality” (which her Honour identified as not imputing to the legislature an intention to interfere with fundamental rights unless such an intention is clearly manifested), the primary judge concluded at PJ[128] that s 69ZA did not have the effect of ousting common law standing in proceedings to enforce the requirements of an integrated forestry operations approval to which Pt 5B of the Forestry Act applied (these provisions are considered from [105] below). Her Honour concluded that:

5. [90]

   The correctness of this conclusion and reasoning is challenged by the respondent’s notice of contention.

6. [91]

   After referring to several relevant authorities (including Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 (ACF - HCA); Robinson v Western Australian Museum (1977) 138 CLR 283; [1977] HCA 46; Environment East Gippsland Inc v VicForests [2009] VSC 386; Binginwarri Friends of Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 507 and Binginwarri Friends of Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 824), her Honour concluded that it was appropriate in the exercise of discretion to decide the question of standing as a preliminary matter, rather than await the determination of the merits, for reasons which are set out at PJ[106].

7. [92]

   It is convenient to reiterate here that, after concluding at PJ[176] that the appellant had not established, even on a prima facie basis, that it had a sufficient special interest to bring the proceeding, the following day (i.e., 8 February 2024), and as requested by the respondent, her Honour made orders which not only dismissed the second notice of motion but also dismissed the proceeding generally. Grounds 1 and 2 of the notice of appeal challenge these orders, but need not be determined (see at [50] above).

8. [93]

   Her Honour noted the following matters which the appellant relied upon as demonstrating that it had common law standing:

9. [94]

   Her Honour also noted evidence concerning public recognition of the appellant’s role in the protection of public forests, including the appellant’s representatives sitting on a committee established by the Resource and Conservation Assessment Council of the Department of Premier and Cabinet in 2003; receiving an excellence grant for outstanding environment protection work from the Robyn Stellar Foundation in 2007; and two of the appellant’s executive members being awarded the Bob Brown Environmentalist of the Year in 2019 “for recognition of work on behalf of [the appellant] for the protection of forests and action on climate change during the past 20 years”. Her Honour further noted the evidence that the appellant had conducted spotlight surveys for Greater Gliders and submitted reports of identified glider den trees to the EPA.

10. [95]

    Her Honour summarised the respondent’s submissions as to why it contended that the appellant lacked the requisite “special interest” in the subject matter of the proceeding. This included the submission that, while the appellant may have a general interest in NSW forests, that was insufficient, particularly where the compartments the subject of the proceedings were not within the region it described as the “South East Forests of NSW”, to which the appellant’s name relates (i.e., broadly the Southern and Eden subregions). Moreover, the respondent submitted that the appellant’s evidence failed to demonstrate any connection with the subject matter of the proceedings, being glider den trees and broad area habitat searches.

11. [96]

    Although describing the matters which supported the appellant having standing (as further summarised at PJ[135]), her Honour explained at PJ[136] why she was not satisfied that the appellant had demonstrated a prima facie case for standing at common law, referring to the following matters:

12. [97]

    At PJ[137], after noting that each case turned on its own facts, the primary judge contrasted the composition and history of the appellant with that of the Australian Conservation Foundation (ACF). After citing “ACF v Commonwealth”, her Honour then stated:

13. [98]

    Although in this passage the primary judge expressly refers to “ACF v Commonwealth”, which appears to be a reference to ACF - HCA (and this is the only judgment involving the ACF referred to in the list of cases cited at the beginning of the judgment), it must be Davies J’s later decision in Australian Conservation Foundation v Minister for Resources [1989] FCA 794; (1989) 76 LGRA 200 (ACF – FCA) which her Honour had in mind when she said that the ACF was able to demonstrate its special interest. Unlike the outcome in ACF – FCA, the ACF failed to establish standing in ACF – HCA.

14. [99]

    The primary judge also emphasised the need, in determining standing, to take into account the avoidance of a multiplicity of proceedings (referring to Brennan J’s observations in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 75; [1981] HCA 50).

15. [100]

    Finally, at PJ[139], the primary judge noted that, while the appellant’s activities reflected a deep a long-standing interest in native forests, the evidence did not establish even a prima facie case that its activities were undertaken “as a group that manifest itself in the incorporated association”, referring to Binginwarri at [61]-[62] per Niall JA.

16. [101]

    Having regard to her Honour’s conclusion that the appellant lacked standing, even on a prima facie basis, this issue did not strictly arise. For completeness, however, her Honour explained why she did not consider that there was a serious question to be tried, or an arguable case. On the balance of convenience, however, her Honour considered that the expert evidence concerning irreparable harm outweighed the appellant’s delay in seeking interlocutory relief.

The appeal and notice of contention

1. [102]

   The appeal (which is brought under s 58 of the LEC Act), challenges the orders dated 8 February 2024, including an order that the substantive proceeding be dismissed. It should be noted that the appellant discontinued an application for leave to appeal in respect of the orders dated 7 February 2024. It was common ground, however, that the primary judge’s reasons for judgment dated 7 February 2024 also informed the orders made the following day.

2. [103]

   As noted at [50] above, it is sufficient to focus on ground 3, which is directed to the central question whether the appellant has standing to bring the proceeding.

3. [104]

   The respondent filed a notice of contention claiming that common law standing to bring civil enforcement proceedings in relation to forestry operations conducted under the CIFOA was ousted by the statutory scheme manifested in particular in ss 69SB and 69ZA of the Forestry Act and ss 13.14 and 13.14A of the BC Act.

Consideration and disposition

1. [105]

   It is convenient first to address the notice of contention. For the following reasons, the primary judge did not err in concluding that common law standing principles apply to the proceedings. (I should clarify that the references to “common law standing” are intended to include standing to seek equitable remedies in a public law context).

2. [106]

   In brief, the respondent contended that the effect of the statutory scheme, comprising relevant provisions of the Forestry Act and BC Act, constitute a code which precludes common law standing and limits the enforcement of the CIFOA to the entities identified in sub-ss 69ZA(3)(a) to (c) of the Forestry Act, namely the EPA, the Minister or other relevant government agencies (see at [108] below).

3. [107]

   The primary provisions relied upon by the respondent in support of its notice of contention are as follows:

4. [108]

   Section 69ZA is at the core of the respondent’s notice of contention. It is notable that the effect of s 69ZA(2) is to prohibit the bringing of proceedings under a statutory provision to which the section applies where there is an alleged breach of an integrated forestry operations approval, of which the CIFOA is an example. Importantly, however, that prohibition only applies to proceedings brought under any of the statutory provisions identified in s 69ZA(1). Sub-section 69ZA(1)(b) picks up what might be described as “open standing provisions” in any Act, which includes s 13.14 of the BC Act (which is set out below). Section 69ZA provides:

5. [109]

   As noted above, one of the statutory open standing provisions to which s 69ZA applies is s 13.14 of the BC Act. I will now set out that provision, along with s 13.14A, which provides for the EPA to bring civil enforcement proceedings in relation to Pt 5B of the Forestry Act.

6. [110]

   The respondent’s contention that common law standing is ousted by the statutory scheme may be summarised as follows:

7. [111]

   For the following reasons, I do not accept those submissions. I respectfully consider that they were correctly rejected by the primary judge substantially for the reasons set out at PJ[128].

8. [112]

   First, as the respondent correctly acknowledged, none of these provisions expressly ousts common law standing. That, of course, is not the end of the matter because the relevant issue then becomes whether, read as a whole, the statutory scheme has that effect.

9. [113]

   Secondly, I consider that, properly construed, provisions such as s 69SB(1) of the Forestry Act and s 13.14A(1) of the BC Act (and, in particular, the use of the term “may” in the latter provision, as well as in ss 13.15 and 13.16 of the BC Act) should be viewed as enabling rather than limiting provisions. Contrary to the respondent’s submissions, this construction does not render otiose the requirement in ss 13.15(2) and 13.16(1) for a person to obtain the written consent of the Minister to bring a bringing proceeding. That requirement constitutes a precondition to open standing in circumstances to which those provisions apply. Viewed that way, the provisions do not confer exclusive authority upon the EPA to enforce integrated forestry operations approvals.

10. [114]

    Thirdly, it may be accepted that a provision such as s 13.14(1) of the BC Act, which confers standing on “any person” to bring civil enforcement proceedings for a breach of the BC Act or other legislation specified in that provision, is an open standing provision which is caught by the prohibition imposed by s 69ZA(2). Such a statutory open standing provision is to be contrasted, however, with common law standing. As has been emphasised, the statutory scheme is entirely silent on whether the prohibition applies to modify or oust common law standing.

11. [115]

    Fourthly, the second reading speech does not support the respondent’s position. It is stated there that cl 38 (the predecessor provision to s 40 of the Forestry and National Park Estate Act and which itself was in substantially similar form to the current s 69ZA) “removes the rights of third parties to bring proceedings relating to the integrated approval”. Significantly, however, that statement does not squarely address common law standing. Viewed in context, the statement is directed to open standing. If I am wrong in taking that view, I consider that this is an instance where the approach in Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12 applies, namely that in statutory construction a second reading speech cannot be determinative or be substituted for the text of enacted legislation.

12. [116]

    In my view, much clearer language than that which appears in the provisions relied upon by the respondent is required to oust well established common law standing. This is consistent with the well settled presumption that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights, privileges or liberties other than by a law expressed with “irresistible clearness” (see e.g., Potter v Minahan (1908) 7 CLR 277 at 304; [1908] HCA 63; Bropho v Western Australia (1990) 171 CLR 1 at 18; [1990] HCA 24; Coco v The Queen (1994) 179 CLR 427 at 437; [1994] HCA 15 per Mason CJ, Brennan, Gaudron and McHugh JJ; and Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40 at [19] per Gleeson CJ). The presumption applies here where it is contended that the statutory scheme should be construed as abrogating common law principles of standing in the context of civil enforcement proceedings concerning Pt 5B of the Forestry Act. None of the matters relied upon by the respondent satisfy the requirement that any abrogation of common law standing be manifested by irresistible clearness.

13. [117]

    The presumption referred to above is sometimes referred to as the “principle of legality”. It is unnecessary to enter into the debate as to the appropriateness of that language (see Herzfeld and Prince, Interpretation (Lawbook Co, 2nd ed, 2020) at [9.60]). As noted by the plurality (Edelman, Steward and Gleeson JJ) in Hurt v The King [2024] HCA 8 at [106], the principle of legality is itself a principle of interpretation. The plurality referred approvingly to the following observations regarding the limits of the principle of legality in Lee v New South Wales Crime Commission (2013) 251 CLR 310; [2013] HCA 39:

14. [118]

    It is sufficient to observe that that limitation does not apply here because there is nothing to suggest that one of the objects of the statutory scheme is to abrogate or curtail common law standing, as opposed to statutory open standing.

15. [119]

    For all these reasons, I would reject the notice of contention.

16. [120]

    This aspect of the appeal does not turn on any significant dispute as to the content of the relevant legal principles concerning common law standing, but rather on their application to the particular facts and circumstances. Many of the relevant legal principles are identified in two recent intermediate appellate court decisions, namely VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143; [2021] VSCA 195 and Blue Derby Wild Inc v Forest Practices Authority (No 2) [2024] TASFC 1.

17. [121]

    The following summary of the relevant legal principles draws heavily on Kinglake (many of which were relied upon in Blue Derby). I will describe from [142] below how the application of the principles in the particular circumstances of those two appeals produced different outcomes on the question of standing. This serves to highlight that the application of the principles is very much fact and context specific (a point which is illustrated by other cases which I will briefly outline in the following analysis).

18. [122]

    I will now describe some of the relevant legal principles concerning common law standing and make some additional observations.

19. [123]

    An applicant who attempts to bring civil enforcement proceedings seeking declaratory and/or injunctive relief in respect of unlawful conduct and does not rely on a private right or special damage to establish standing must demonstrate a “special interest” in the subject matter of the proceeding. As expressed in Kinglake at [21], 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”.

20. [124]

    This raises the question of the level of abstraction with which the subject matter of the proceeding should be identified (see Kinglake at [22]). In an environmental context, for example, is it sufficient for the applicant to demonstrate that it has an interest in the protection and preservation of the environment generally or must its interest be associated with the particular decision or conduct which is the subject of the proceeding?

21. [125]

    Putting to one side cases where the Court is exercising a statutory jurisdiction (which may have an open standing provision or some other statutorily expressed formula for standing) and cases involving what were once described as the prerogative writs (which have their own particular and variable standing rules), the common law standing test based on the need to demonstrate a “special interest” in the subject matter of the proceeding focuses on the relative position of the applicant when compared with the broader population (see Kinglake at [29]).

22. [126]

    The “special interest” test is not confined to proprietary, business or economic interests. But a “mere emotional or intellectual concern” is insufficient unless the applicant demonstrates that it has taken sufficient, concrete or active steps to effectuate the particular concern (see Kinglake at [76]). The need for the interest to be special or different from those held by ordinary members of the public “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” (see Kinglake at [60(d)]).

23. [127]

    There may be more than one doctrinal underpinning for the requirement of standing in the context of a public law proceeding. Those underpinnings may vary depending upon the particular relief or remedy which is sought. At both a federal and state level, it is important, however, to acknowledge the role of standing in confining the exercise of judicial power to its proper limits (see, for example, Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49 at [37] per Gaudron, Gummow and Kirby JJ, who identified as a general consideration that the principles by which standing is assessed are concerned to mark out the boundaries of judicial power, whether in federal jurisdiction or otherwise). Essentially the same point was made by the plurality (Crennan, Kiefel, Gageler and Keane JJ) in Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46 (footnotes omitted):

24. [128]

    The practical consequences of the doctrinal foundations for public law standing requirements have been expressed in various ways. For example, in Onus at 35, Gibbs J referred to the need to guard against legal processes being “abused by busybodies and cranks and persons activated by malice”, as well as discouraging public law litigation by persons who have no greater interest than an “intellectual or emotional concern”. In Onus, Brennan J emphasised at 74 that where a person seeks to enforce compliance with a public duty, “standing is to be found in some affection or threatened affection of the plaintiff’s interests by the defendant’s breach or apprehended breach of the duty”. His Honour added at 75 that it was also “material to consider whether the plaintiff has shown so distinctive an interest that his action to enforce the defendant’s public duty is likely to avoid a multiplicity of actions”.

25. [129]

    In Onus, Brennan J at 75 referred approvingly to the following observations of Mason J in Robinson at 327-328 which highlight the fluid nature of the test for standing:

26. [130]

    To similar effect, in Bateman’s Bay at [50], after tracing the development of use of equitable remedies to support the public interest in the due administration of the law, the plurality emphasised that “[r]easons of history and the exigencies of present times indicate that this criterion [i.e., there being standing by a party with a sufficient material interest in the subject matter] is to be construed as an enabling, not a restrictive, procedural stipulation”.

27. [131]

    Whether or not particular steps or activities are sufficient to demonstrate a special interest will depend on the subject matter of the proceeding and are necessarily fact and context specific. As Brennan J stated in Onus at 75, whether a person has shown a sufficient interest in the particular case “must be a question of degree, but not a question of discretion”.

28. [132]

    Standing is another area of law where it is important to resist adopting and applying a particular formula. Such an approach is unlikely to be productive. Moreover, at least in some instances, it may serve to unduly restrict access to the courts. Thus, in the particular context of standing to seek equitable relief in enforcing public law, Gaudron, Gummow and Kirby JJ made the following important observations in Bateman’s Bay (footnotes omitted):

29. [133]

    Consideration of the subject matter of the proceeding requires attention to be paid to the statutory context (including the role, if any, that a plaintiff has in the statutory scheme), the nature of the power, and the form of relief sought by a plaintiff (see Kinglake at [60(e)]).

30. [134]

    The fact and context specific nature of the “special interest” test, as well as its fluid and evolving nature, is well illustrated by the different outcomes in ACF – FCA and the previous decision in ACF – HCA. In ACF – HCA. the majority found that ACF lacked standing to seek declaratory and injunctive relief directed to approvals granted under and in relation to the Banking (Foreign Exchange) Regulations 1959 (Cth). In ACF – FCA, Davies J held that the ACF had standing as an “aggrieved person” to bring a judicial review challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) concerning the Minister’s decision to grant a licence to export woodchips. The ACF contended that the licence contravened s 30 of the Australian Heritage Commission Act 1975 (Cth) (which imposed obligations on the Minister which were intended to protect the National Estate of which the forests the subject of the proceeding formed part and was where the woodchipping activities would be conducted).

31. [135]

    After emphasising at 204 that the question of standing must be examined “in the light of the issue which is to be considered”, Davies J referred approvingly to Stephen J’s statement in Onus at 42, concerning the distinction between ACF – HCA and Onus:

32. [136]

    In concluding that the ACF had standing, Davies J was influenced by the following matters:

33. [137]

    Subsequently, in North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492 at 502; [1994] FCA 989, Sackville J said that, while there had been “a progressive widening” of the law of standing, there was no inconsistency between ACF – FCA and ACF – HCA. Illustrating again that the question of whether an applicant has a “special interest” is heavily fact and context specific, Sackville J concluded that the applicant there was a “person aggrieved” for the purposes of s 13 of the ADJR Act in requesting the Minister to provide it with a statement of reasons for his decision to grant a licence to export woodchips from the North Coast of NSW (at 513). In reaching that conclusion, Sackville J noted that the applicant:

34. [138]

    Applying his earlier analysis in North Coast, Sackville J subsequently held in Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516; [1995] FCA 1035 that the Tasmanian Trust had standing for the purposes of a judicial review challenge to the Minister’s decisions to grant a woodchips export licence and to give an in-principle approval to export wood chips. His Honour pointed to the following matters as manifesting the Trust’s concern with the subject matter of the Minister’s decisions and the closeness of its relationship with that subject matter (at 552-553):

35. [139]

    The need to adopt a multifactorial approach in assessing whether an applicant has a special interest which distinguishes it from ordinary members of the public is well illustrated by the decision of the Full Court of the Federal Court in Animals’ Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35; [2014] FCAFC 173. The appellant there was an international animal protection organisation which sought judicial review under both the ADJR Act and s 39B of the Judiciary Act 1903 (Cth) in respect of the respondent’s decision not to issue a show cause notice under s 23(1) of the Australian Meat and Live-stock Industry Act 1997 (Cth) arising from allegedly false statements and poor operational practices concerning the export of live animals.

36. [140]

    The primary judge held that the applicant lacked standing largely because of its lack of presence in Australia; its limited recognition in Australia by Commonwealth or State governments (including not extending financial grants or assistance); the lack of any evidence as to its commitment of financial resources to animal welfare in Australia; the lack of any evidence of any co-ordination of its activities with Australian based animal welfare organisations; the broader and global nature of its objects or purposes concerning animal welfare; and the lack of utility of the relief sought (see Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCA 398).

37. [141]

    Allowing the appeal, Kenny and Robertson JJ (with whom Pagone J agreed) concluded that the appellant had a special interest. Their Honours emphasised at [121] that standing “requires a sufficient interest, not one which is a unique interest or the strongest interest compared with others who may have an interest”. Contrary to the primary judge’s view, Kenny and Robertson JJ concluded that the appellant had standing because:

38. [142]

    As the analysis above demonstrates, cases such as ACF – HCA and ACF – FCA demonstrate the fact and context specific nature of the “special interest” test. That fundamental point is further illustrated by contrasting the different outcomes on standing in Kinglake and Blue Derby.

39. [143]

    In Kinglake, the following matters underpinned the Court’s conclusion that the appellant had standing to seek civil enforcement relief:

40. [144]

    In contrast, the appellant in Blue Derby was found to lack standing. This was largely because of the limited nature of the evidence filed by the appellant with the object of demonstrating its standing, as well as the subject matter of the proceeding. The appellant challenged the certification by Sustainable Timber Tasmania of forest practices plans which provided the framework for the harvesting of timber. The appellant claimed that the persons who certified the plans had not received valid delegations or, alternatively, their decisions were invalidated because of apprehended bias.

41. [145]

    The following matters influenced the Full Court’s decision in Blue Derby that the appellant lacked standing:

42. [146]

    It may be noted that, on 23 April 2024, the High Court refused special leave to appeal in Blue Derby Wild Inc v Forest Practices Authority [2024] HCATrans 29. There was insufficient doubt concerning the correctness of the Full Court’s conclusion on standing. Reference was also made to the obscurity of the evidence concerning the nature and extent of Blue Derby’s activities which made the appeal an unsuitable vehicle to engage in a reconsideration of the principles of standing at general law.

43. [147]

    I have highlighted some of the particular activities and factors which have underpinned particular findings of standing in previous authorities on standing. It is not intended to suggest that such activities and factors are definitive or dispositive. As emphasised, each case needs to be read in the light of its own particular factual and statutory context.

44. [148]

    The application of the relevant legal principles to a particular case necessarily requires an evaluative judgment as to whether a party has standing, however, the issue is not one of discretion. Neither party suggested that the appellate standard of review in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 did not apply.

45. [149]

    For the following reasons, and with great respect to the primary judge (who was under considerable pressure promptly to publish her reasons for judgment concerning the appellant’s applications for urgent interlocutory relief which were filed and progressed during the LEC’s vacation period), I shall now explain why I consider that the appellant has standing (with particular reference to the evidence in two affidavits by Mr Scott Daines, who is the appellant’s Public Officer and President).

46. [150]

    First, SEFR was founded in 2001 and was incorporated in September 2010. In its application for incorporation, the appellant identified its objects and purposes as follows:

47. [151]

    The application for incorporation also included a vision statement (a modified version of which currently appears on the appellant’s website), both of which state that the appellant takes

48. [152]

    The reference to the appellant’s “deep concern for the welfare of forest-dependent threatened species” is particularly significant having regard to the threatened status of Greater Gliders.

49. [153]

    Secondly, these matters demonstrate the appellant’s beliefs and concerns regarding particular aspects of environmental protection. Those matters may not be sufficient of themselves to establish standing, but the evidence also indicates that the appellant has taken a wide range of activities and concrete steps which give effect to those beliefs and concerns. For example, the appellant has:

50. [154]

    Thirdly, the appellant’s interest and concern to protect one or more of the three subject glider species and their habitat is not a recent development. The effect of logging hollow-bearing trees on the Greater Glider (and also in some cases on the Yellow-bellied Glider) has been specifically raised by the appellant in multiple submissions and representations by it dating back to 2010. The appellant’s concerns regarding this particular topic were ventilated in its:

51. [155]

    Fourthly, more recently, since 23 September 2023, the appellant has conducted surveys for Greater Glider den trees in various State forests, including a joint survey with Bellingen Activist Network on 4 December 2023 concerning the Styx River State Forest (which is one of the State forests the subject of the proceedings when they were initially commenced). On 5 December 2023, the appellant also submitted a breach report to the EPA which alleged breaches of Condition 76.1 of the CIFOA with respect to Greater Gliders and Yellow-bellied Gliders in that area.

52. [156]

    As noted above, at PJ[135] the primary judge identified six parts of the appellant’s evidence which she viewed as supporting its claim to have standing to bring the civil enforcement proceeding. The evidence related to the appellant’s protest and community activities over the last 22 years aimed at opposing logging and promoting community awareness of the importance of preserving native forests; conducting post-logging audits and lodging breach reports to environmental authorities; bringing judicial review litigation on three previous occasions to protect NSW native forests from logging or mining; contribution to publications concerning the protection of native forests and their fauna and the appellant’s media presence; involvement as a founding member of SERCA; and the evidence of the appellant’s recent activities focused on increasing awareness of, and protections for, Greater Gliders.

53. [157]

    I respectfully agree with her Honour that all these matters support the appellant’s standing. With respect, however, I take a different view as to the five matters identified by the primary judge at PJ[136] as supporting her Honour’s ultimate conclusion that the appellant lacked standing.

54. [158]

    The first of those matters relates to the appellant’s registered name as “South East Forest Rescue Incorporated”. Her Honour viewed as significant the fact that the relief sought in the amended notice of motion related to the Northern part of the State and not the South East. In my view, this deserves little if any weight. The evidence demonstrates that the appellant’s activities extend beyond the Southern and Eden subregions, including, for example, its conduct of nighttime surveys for Greater Glider den trees and other activities in the Lower North East and Upper North East subregions to which the interlocutory proceedings were specifically directed, including Styx River and Cloud’s Creek respectively.

55. [159]

    Even more significantly, however, is the fact that, as noted above, the summons (as opposed to the amended notice of motion and second notice of motion), seeks declaratory and injunctive relief in respect of forestry operations as authorised by the CIFOA generally, being all four subregions along the entire NSW coast. It is not confined to any particular subregion covered by the CIFOA. Moreover, the appellant’s concern to highlight and draw attention to the connection between logging of hollow-bearing trees and protecting glider habitat, which is emphasised in many of the publications, submissions and representations referred to above with which the appellant has been associated, is not confined to forestry operations in the South Eastern part of the State. The concern applies more generally and extends to all areas which are now covered by the four CIFOA subregions.

56. [160]

    The second matter which influenced the primary judge was that the appellant was formed for the purpose of “ending native logging in NSW”, but the evidence indicated that its activities have largely been focused in South East NSW. Her Honour also attached significance to the fact that the proceedings were concerned with the protection of Greater Gliders.

57. [161]

    This second matter overlaps with the first matter and I repeat what is said immediately regarding the first. In addition, while it may be accepted that the appellant was formed with a purpose of ending native logging in the State, and the proceedings are directed to protecting the three subject glider species, particularly the Greater Glider, the appellant’s strong (and not unreasonable) view is that there is a necessary connection between logging hollow-bearing trees and protecting those species. This is manifested not only in the numerous and repeated references to the connection in the appellant’s publications, submissions and representations as referred to above, but also in the appellant’s Vision Statement (see at [150] above).

58. [162]

    The third matter of import to the primary judge was the perceived uncertainty of Mr Daines’ evidence concerning the role and activities of each of the six members of the appellant (and others) in pursuing the appellant’s objects, as well as the knowledge and experience of any of them, including Mr Daines, in protecting native forests and Greater Gliders.

59. [163]

    I respectfully disagree. Mr Daines gave unchallenged evidence that the appellant currently has six members and approximately 1600 followers on Facebook. He described the composition of the committee as comprising himself as President and Treasurer, Mr Scott Mackenzie as Vice President and Ms Lisa Stone as Secretary. He said that the committee and members meet several times a year and that the committee members are otherwise in “constant contact with one another”. He said that he and Ms Stone run the appellant’s “day-to-day operations”.

60. [164]

    Other evidence which describes the knowledge and experience of the committee and members, without being exhaustive, includes the following:

61. [165]

    The fourth matter which concerned the primary judge was that there was no evidence concerning the day-to-day operations of the appellant, its resources or sources of funding. As acknowledged by Mr Korman of counsel (who appeared for the appellant together with Mr Farrell), the evidence did not include any information as to the appellant’s funding. There is much to be said, however, for Mr Korman’s submission that “there is always more material that can be adduced” and the wealth of material that was produced demonstrated that the appellant did have a sufficient special interest in the subject matter of the proceeding.

62. [166]

    It may reasonably be inferred from the evidence of the appellant’s activities over more than a 20-year period (including the period prior to its incorporation) that it is sufficiently well resourced to be able to be involved in such active ventures as preparing and submitting detailed reports and submissions to government authorities and inquiries, as well as making multiple breach reports to bodies such as the EPA.

63. [167]

    Given that an evaluative judgment has to be formed on the issue of standing, the fact that there may be no direct evidence on a topic such as funding is not necessarily fatal. The exercise should not involve a “tick-the-box” approach. Rather, the evidence needs to be assessed and weighed as a whole.

64. [168]

    It may be accepted that if a body such as the appellant receives government funding that is likely to assist in establishing standing because the funding suggests that it is independently acknowledged that the body has a particular and responsible interest in a subject matter. But funding is not the only way this can be demonstrated. For example, in Animals’ Angels, considerable weight was attached to correspondence from a senior Commonwealth government official which described the appellant there as “a stakeholder with a significant interest in the live export trade” (at [118]-[119]).

65. [169]

    Comparable government recognition of the appellant is reflected in the fact that, as long ago as 2003 (i.e., two years after it was established and seven years before it was incorporated), Mr Daines (who was one of the founders of the SEFR along with Mr Mackenzie and others) was invited as a representative of SEFR to sit on a committee established by the Resource and Conservation Assessment Council of the NSW Department of Premier and Cabinet to comment on proposed legislation which culminated in the National Park Estate (Reservation) Bill 2005 (NSW).

66. [170]

    It may also be noted that, post its incorporation in September 2010, the appellant was described as “a well known environmental organisation” in Craig J’s reasons for judgment in Friends of Malua Bay Inc v Perkins [2014] NSWLEC 95 at [19].

67. [171]

    Finally, in a 2011 report styled “If a tree falls: Compliance failures in the public forests of New South Wales” which was prepared by the Environmental Defender’s Office (NSW) on behalf of the NCC (2011 NCC report), the appellant’s work in lodging multiple environmental breach reports is acknowledged several times. There is a detailed appendix totalling eight and a half pages which identifies the numerous reports by the appellant of breaches of forestry regulations. (The NCC was founded in 1955 and is described in the 2011 NCC Report as “the peak environment organisation for NSW representing more than a hundred community environment groups across the state”).

68. [172]

    In the foreword to the 2011 NCC report, there is an acknowledgment of “the tireless efforts of community members who have spent hundreds of hours in public forests, identifying and documenting breaches of forestry and environmental regulations”. The authors of the report specifically recognised the work of Ms Stone, who is described as having “played a vital role in documenting the impacts of unlawful logging practices in our public forests”. Ms Stone joined SEFR in 2006 and is presently the appellant’s Secretary. It is reasonable to infer that Ms Stone’s involvement in the preparation of the 2011 report was carried out, at least to some extent, in her capacity as a representative of either SEFR or the appellant.

69. [173]

    The final matter which concerned the primary judge was that the evidence indicated that the appellant’s activities aimed at protecting Greater Gliders and their habitats commenced only around 23 September 2023.

70. [174]

    It is true that around that time the appellant became more actively involved in conducting nighttime surveys of glider den trees in some of the compartments the subject of its amended notice of motion and second notice of motion and in lodging breach reports in respect of some of those compartments. But its concern to protect glider habitat well precedes those particular activities. The appellant lodged multiple breach reports dating back to 2011 regarding contraventions by loggers in parts of the Southern and Eden subregions. It complained about the logging of hollow-bearing trees, the failure to mark Yellow-bellied Glider habitat, and the failure to identify species, including Yellow-bellied Gliders and Squirrel Gliders. Some of those reports dated around 2011 are identified in appendix 1 to the 2011 NCC report, but other breach reports by the appellant extend well beyond that date.

71. [175]

    The appellant’s concern to highlight the inter-relationship between logging of hollow-bearing trees and preservation of glider habitat is a subject which is repeatedly referred to by it in its publications, submissions and representations referred to above. Those references go as far back as 2011, when the appellant made a submission to the House of Representatives’ Standing Committee on Climate Change and highlighted the threat which the logging of den trees posed to Greater Gliders. Similar matters were raised by the appellant in many subsequent submissions and representations to federal and state entities, as outlined above.

Conclusion

1. [176]

   Having regard to all these matters, I am satisfied that the appellant has a sufficient special interest in the subject matter of these proceedings because the evidence adequately demonstrates that:

2. [177]

   For all these reasons, I propose that the appeal be allowed, with costs. Order 1 of the orders dated 8 February 2024 should be set aside. No party has sought to challenge the order dated 15 April 2024 that there be no order as to costs of the proceedings below.

3. [178]

   In circumstances where the substantive proceedings identified in the summons filed on 15 January 2024 remain to be heard and determined, it is a matter for the Chief Judge of the LEC to determine to whom the matter should be allocated.