Administrative Law - Judicial Review - Procedure and evidence - Other cases - Application for suspension of operation of administrative decision - Injunctive relief also sought - Appropriate test is that relating to grant of interlocutory injunction.

Judicial Review Act 2000, s 19(2)(a)

Irwin v Meander Valley Council [2007] TASSC 12 referred to.

Administrative Law - Judicial Review - Other cases - Suspension of operation of administrative decision - Injunctive relief - Decision to certify forest practices plan for logging - Where applicant argued that area to be logged the nesting or feeding habitat of endangered species of bird - Serious question to be tried - Balance of convenience - Relief granted.

Judgment Number: [2024] TASSC 19

FORESTRY TASMANIA t/as SUSTAINABLE TIMBER TASMANIA

1. Before the Court is an application to suspend, and to grant injunctive relief in respect of, the operation of a decision made on 29 September 2023 to certify a forest practices plan pursuant to s 19(1)(a) of the Forestry Practices Act 1985, (the Plan). The name of the logging coupe the subject of the plan is KD022C, an area near Kermandie in the Huon Valley. Before logging was halted by an undertaking to this Court in December late last year, very roughly about one half of the logging area of the coupe had been logged.
2. This interlocutory application relates to an originating application filed on 11 December 2022 which, pursuant to the Judicial Review Act 2000 (JRA), seeks judicial review of the certification and an order quashing it. At the heart of the proceedings is the applicant's concern for the welfare of the swift parrot. It is relevant for the purposes of the proceedings to fully note the status of that species. It is classed as critically endangered by the Commonwealth Department of Climate Change Energy Environment and Water under the Environment Protection and Biodiversity Conservation Act 1999 and is listed as endangered under the Tasmanian Threatened Species Act 1995. It is also listed as endangered in similar legislation in all other States and Territories except Western Australia and Northern Territory.
3. The first respondent, Kerri Spicer, was the decision-maker. She was the delegate of the second respondent, the Forest Practices Authority; in these reasons, "FPA". Both have submitted to the jurisdiction of the Court, leaving Forestry Tasmania t/as Sustainable Timber Tasmania as the active respondent. I will refer to Forestry Tasmania as the respondent.
4. There is common ground between the parties as to the principles to be applied to this application which involves both an application to suspend the operation of the decision pursuant to s 19(2)(a) of the JRA, and injunctive relief. Those principles are to be found in Australian Broadcasting Corporation v O'Neill [2006] HCA 46, 227 CLR 57 at [19], [65]-[72] and Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156, 217 FCR 238 at [52]- [74]. In this State, see Powell v Business Expansion Capital Pty Ltd [2008] TASSC 26 at [12]- [15] and Irwin v Meander Valley Council [2007] TASSC 12 at [7]- [10], (a judicial review case).[1] I note that the applicant has offered to the Court an undertaking as to damages in the usual terms.
5. Although the respondent made no concessions as to any of the relevant considerations, the primary focus is on whether there is a serious question to be tried. There are two grounds in the originating application. The first complains that the decision to certify the Plan was, in the circumstances, unreasonable; alternatively, constituted material non-compliance with procedural conditions for the exercise of the power; alternatively, constituted a failure to take into account relevant consideration. That ground is linked to the detection of swift parrot within the area of the coupe and notification of that to the first two respondents on the morning of, and shortly before, the certification.
6. The second ground complains that there was no power of certification under the Forest Practices Act because of the failure to comply with a mandatory prescription imposed by the regulatory regime. That ground is not dependent on the detection of the bird within the area, but relates to an argument about the existence of nesting habitat, that being a primary focus of conservation attempts.
7. In terms of the regulatory scheme, s 31 of the Forest Practices Act makes provision for a Forest Practices Code to prescribe the manner in which forest practices are to be conducted. The present version of the code published in 2020 provides that threatened species under the Threatened Species Protection Act will be managed in accordance with the "Procedures for management of threatened species under the forest practices system". Those procedures make provision for management prescriptions through planning tools.
8. There is a Threatened Species Adviser Tool, the relevant part of which is Recommendation 11(b) which specifically relates to the swift parrot. That recommendation includes an instruction to report immediately to the FPA any evidence of a nesting site or birds being present - heard or seen - inside of or within 500 metres of a Forest Practice Plan area during September to February. For swift parrot sightings within the area, felling operations should immediately cease within 500 metres of the sighting until the evidence of the nesting site and/or birds has been assessed. To that extent specialist advice may be necessary. Lastly, there is an FPA document, "Fauna Technical Note No 3" which contains quantitative assessment criteria for identifying both breeding and foraging habitat.
9. The applicant relies on four affidavits of Charley Gros, a scientist contracted by the applicant who has been closely involved in the monitoring of the swift parrot since 2021. He was not cross-examined. I am satisfied he has a high level of familiarity with the bird's call. He has lodged with the National Values Atlas (NVA) - a database set up and managed by the Tasmanian Department of Natural Resources and Environment - some 400 audio recordings, about 160 of which coincided with direct observations by him, said to be of the bird. The validity of the information so logged has not been called into question.
10. His evidence satisfies me of the following things:
    • On the morning of 28 September 2023, he was given a recording said to have been made of a swift parrot within the area of the coupe. He lodged that with the NVA along with information that there were multiple birds foraging on a flowering Eucalyptus globulus.
    • That information was later corrected by him after an enquiry, to a note of "Multiple birds, warbling calls, audio file attached, from the canopy of Eucalyptus trees."
    • All information was accepted by NVA.
    • He subsequently visited the coupe to deploy recording devices, and obtained audio recordings of swift parrots within the coupe on 5, 6, 7, 8, 9 and 10 November 2023, and again on 7, 8, 9 and 10 December 2023.
    • He arranged further audio surveillance and obtained recordings of the bird, confirmed to be such by an expert, made on 16 occasions across eight days of nearly three weeks in January 2024.
11. Ms Spicer filed an affidavit and she was cross-examined. In her reasons for the decision published on 7 December 2023, after stating that an FPA ecologist had advised on 19 September that the operation met the Recommendation 11(b) prescriptions, Ms Spicer notes that she was alerted of the new swift parrot record, but that this record did not change the prescriptions needed to be included in the Plan as per Recommendation 11(b) of the Threatened Species Adviser Tool, and she was satisfied that the Plan could be certified.
12. In her affidavit, Ms Spicer says that at about 11.45am on 29 September 2023, she was notified by an employee of the respondent that a new swift parrot sighting the day before had been recorded in the coupe. She assessed (sic) the NVA to gain more details about the sighting. She says she reviewed the relevant prescriptive documents and confirmed that the sighting did not alter the appropriateness of the prescriptions contained in the then proposed Plan relating to the coupe. She discussed the issue with other FPA staff. Ms Spicer says she was confident E. globulus was not present but even if it was, it would only amount to negligible foraging habitat. She certified the Plan at about 2.00pm that same day.
13. When cross-examined, Ms Spicer acknowledged she received a chain of emails sent to her from Dion Robertson, an employee of the respondent, at 11.52am on 29 September 2023. That chain is Exhibit P1. Relevantly, it starts with an email to Marie Yee, another employee of the respondent, and to an FPA person advising of a NVA note of an audio sighting of swift parrots at given coordinates, with a flock feeding on flowering "glob". Ms Yee is a conservation planner or similar. At 10.47am, Mr Robertson emailed Ms Yee, among others, saying they were planning to certify the plan that day, with harvest scheduled to commence in a couple of weeks. He said that neither the planner nor he had seen or heard any swift parrots during their visits to the coupe, but he would be back on Monday. He added that he would check out the location while he was there.
14. Ms Yee responded at 11.42am saying that they had been there on the previous Monday focusing on nesting habitat around the coupe area, and did not hear or see any "swifties" but said that there was good bud at "blue gum saddle", so the area would be attractive. Ms Yee said that "it would be good to send Andrew or Tim to spend a day in the area." Ms Spicer explained that the Blue Gum Saddle area was roughly 5 kilometres away from the coupe, and that she had interpreted the email as meaning "attractive to swift parrots". Ms Spicer explained that Andrew and Tim are ornithologists engaged in assisting the respondent in undertaking swift parrot surveys.
15. Ms Spicer said she did not recommend to anyone that the ornithologists be sent to the area, as it was not relevant to her considerations. In her evidence, Ms Spicer confirmed that:
    • After the notification, she took no steps to verify the presence or otherwise of swift parrots in the coupe before certification.
    • No survey of the coupe was conducted by threatened species specialists on 29 September before certification.
    • No one else went out to the coupe on 29 September to check for the presence of swift parrots before certification.
    • There was no need for the certification to be done on that day; there was no reason it could not be delayed pending investigations.
16. To digress slightly, it is relevant to note, harking back to the email chain, Ex P1, and to the reference to attractive forage areas some distance away, that in dealing with the distribution of breeding habitat, the Fauna Technical Note states that nest surveys suggest swift parrots nest within 10 kilometres of foraging habitat.
17. The question of what is sufficient in terms of a serious question to be tried depends on the nature of the rights asserted and the practical consequences likely to flow from any order sought. In that respect the practical consequences for a critically endangered species of habitat destruction could be profound. To that extent, given the swift parrot's status, there is a significant element of the public interest present in these proceedings.
18. The essence of the applicant's argument for a serious question be tried in relation to ground 1 is that no reasonable delegate being aware of the statutory regime and primary management objectives and who became aware of a report of swift parrot presence in the area, would proceed to certify the Plan within about two hours of the notification, with no pressing need to certify that day, and without waiting for any further investigations to be carried out, particularly when they were imminent. At the least, Mr Robertson was going to the area on the Monday, and had said he would take a look. The issue was the potential existence of nesting or foraging habitat.
19. For the respondent, it is submitted that the matter is put completely to rest by the fact that Ms Spicer did pause after receiving the report and spoke to Forestry Tasmania staff after reviewing Recommendation 11(b) from the Threatened Species Adviser Tool. She resolved that the sighting did not alter the appropriateness of the proposed prescriptions in the plan. Being personally familiar with the area, she was confident that E. globulus was not present and even if it was, it would not warrant a change to the Plan as it would only amount to a negligible foraging habitat for the purposes of the Adviser Tool.
20. Counsel noted that the only mandatory part of Recommendation 11(b) was to report immediately to the FPA the evidence of a sighting, and Ms Spicer did this by notifying the bio-diversity manager with whom the implications were discussed.
21. In my view, for the reasons advanced by the applicant, the material does raise a serious question to be tried in relation to ground 1. An improper exercise of a power as referred to in s 17(2)(e) of the Judicial Review Act, as expanded on in s 20(g) of that Act, includes failing to take a relevant consideration into account, as well as to an exercise of a power that is so unreasonable that no reasonable person could so exercise it. That latter traditional formulation of "unreasonableness" in judicial review is to be read in light of the High Court's decision in Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332. In that respect, I generally refer to the discussion in the authoritative text, Judicial Review of Administrative Action and Government Liability, Aronson, Groves and Weeks, 7th ed at [6.20] to [6.59]. In short, depending on context, it may extend to an abuse of power - in the neutral sense - and a decision that lacks an evident and intelligible justification.
22. Ground 2 of the originating application involves reliance on the statutory scheme that I have generally outlined. The evidence relevant to the argument of serious question to be tried is the unchallenged evidence of Mr Gros, particularly in his affidavit sworn 11 December 2023. He carried out surveys of potential swift parrot habitat within the coupe on 29 and 31 October 2023. The details of the survey and the results are set out in annexure CG6 and I do not need to provide any great detail. In summary, his surveys showed a density of 8.1, 12.4, and 14.4 trees with a diameter breast height over 100 centimetres per hectare for three separate survey areas within the logging boundary of the coupe. (Mapping comparisons show that at the present time, a fair proportion of those trees have been felled.)
23. The results of the survey were compared to Table 3 of the FPA Fauna Technical Note 3, according to which table, patches of medium to high potential nesting habitat were then present within the logging boundary; that is, medium to high density of potential nesting trees.
24. In the reasons for decision, Ms Spicer notes Fauna Technical Note No 3, and says the coupe was assessed as containing trees over 100 cm diameter at breast height "of which a component of these were not considered to reflect potential nesting habit for the swift parrot due to being older regrowth/young mature trees with no obvious hollows." There is no information available as to the size of that component, and hence the proportion of trees which qualified. Mr Gros' written and pictorial evidence is at least capable of suggesting a fair proportion. Accordingly, in my view there is a fundamental factual issue which directly relates to the question of compliance with the statutory regime. There is a serious question about material non-compliance. In all of the circumstances ground 2 raises a serious question to be tried.
25. In terms of the balance of convenience and the maintenance of the status quo, it really does not need to be said, but were the order not be made there is good reason to suspect that by the time the substantive proceedings are heard and determined, any remaining foraging and nesting habitat would be lost, potentially at great detriment to the wellbeing of the species. The respondent led no evidence as to any financial detriment or other inconvenience that would be suffered as a result of the orders sought. However, I accept that it is a reasonable inference to draw that some expense might be occasioned by any delay between now and the time and when the substantive proceedings are resolved, but the extent of that is purely speculative. And if the applicant fails, the Court does have its undertaking.
26. For those reasons, upon formally noting the applicant's undertaking, I propose to grant the relief as finally sought.

1. The decision to certify Forest Practices Plan KAS0023 certified by the first respondent as the delegate of the second respondent on 29 September 2023 is suspended in its operation pursuant to s 26(2) of the Judicial Review Act pending determination of the originating proceeding.

1. All persons including the third respondent, its servants, agents and contractors are restrained from carrying out any forest practices that are purportedly authorised by the Plan, pending determination of the originating proceeding.

[1] In practical terms there is no real difference between a suggested test of "just in all the circumstances" for relief under the JRA, and the established approach to interlocutory injunctions: Faingold v Zammit (1984) 1 FCR 87 at 92; Toulmin v Tasmanian Racing Appeal Board [2009] TASSC 115 a t[38].