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[2025] HCA 15
respondent. Appeal dismissed with costs. [Order; 41]
The High Court held that the Forestry Act did not shut out every private claimant from proceedings about alleged breaches of an integrated forestry operations approval. Section 69ZA restricts the use of specified statutory provisions that let any person sue regardless of whether their own rights are affected. It does not clearly remove the ordinary standing of someone whose private rights are affected or who has a special interest in the subject matter. The appeal was dismissed with costs.
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2,386 words · generated 03/10/2026
The appeal concerned who may bring civil proceedings in the Land and Environment Court of New South Wales to enforce duties or obligations imposed by Pt 5B of the Forestry Act 2012 (NSW) or an integrated forestry operations approval (IFOA). Forestry Corporation of New South Wales conducted forestry operations under an IFOA. South East Forest Rescue Incorporated filed a Class 4 summons seeking declaratory and injunctive relief about alleged non-compliance with obligations applying to those operations. The High Court described the summons as seeking to enforce obligations the respondent contended arose under the IFOA and Pt 5B. The merits of the alleged breaches were not the issue on appeal. [1]-[3]
26 cited instruments linked from this judgment.
The primary judge dismissed an application for an interlocutory injunction and, ultimately, the proceedings. Her Honour rejected Forestry Corporation's argument that s 69ZA itself excluded common law standing. But she concluded that South East Forest Rescue had not established even a prima facie sufficient special interest. She also found that, even if standing existed, the respondent had not established a serious question to be tried or an arguable case for relief. [4]
The Court of Appeal agreed that common law standing was not excluded. It also held that the respondent had a special interest and set aside the order dismissing the proceedings. Forestry Corporation appealed to the High Court on the sole issue of whether a private person or entity could bring proceedings to enforce IFOA and Pt 5B obligations. It did not challenge the Court of Appeal's finding that South East Forest Rescue had a special interest. [5]-[6]
The High Court unanimously dismissed the appeal with costs. Its reasons therefore address access to the court, not whether Forestry Corporation breached the IFOA, whether the respondent would ultimately obtain relief, or the correctness of the primary judge's other interlocutory findings. [2], [6], [41]
The Court began with the Land and Environment Court's jurisdiction. The LEC is a superior court of record, can grant remedies for legal or equitable claims properly before it, and has Class 4 jurisdiction over proceedings to enforce rights, obligations or duties imposed by planning or environmental law. Pt 5B and the Biodiversity Conservation Act are such laws. The relevant civil jurisdiction includes equitable jurisdiction to enforce public rights, duties or obligations at the suit of the Attorney-General or another person with standing. [7]
The Court treated standing as part of the positive law governing access to the particular court and the particular relief sought. It discussed the familiar test derived from Boyce v Paddington Borough Council: a person may bring proceedings concerning a public right or duty if their private rights are interfered with, or if they have a special, sufficient or real interest in the subject matter. The second limb has been reformulated in this Court's cases around whether the person's interest is sufficient to warrant the relief sought. [8]-[10]
The main interpretive principle was that a statute is not taken to withdraw jurisdiction or restrict access to court unless that intention is clear and unmistakeable. The Court applied that principle to the LEC's equitable jurisdiction and concluded that, absent a clear contrary intention, a person satisfying either limb of Boyce may bring proceedings to enforce a Pt 5B obligation. [12]-[13]
Section 69ZA was central. Subsection (1) identifies statutory provisions to which the restriction applies. These include provisions that give any person a right to institute proceedings whether or not that person's rights have been or may be infringed. Subsection (2) prevents proceedings under those provisions for specified forestry-related breaches, subject to the exceptions in subsection (3). [24]-[27]
The Court rejected Forestry Corporation's argument that this wording barred everyone other than the government entities listed in s 69ZA(3). In the Court's construction, s 69ZA(1)(b) is directed to statutory provisions that abolish or relax the common law standing rules by giving an open-standing right. It does not address standing “per se”. A provision allowing suit by any person whether or not their rights are affected is different from ordinary common law standing, which requires affected private rights or a special interest. [27]-[30]
The provisions giving the LEC Class 4 jurisdiction do not give a right to sue to “any person”, regardless of infringement. Rather, they provide the court's jurisdiction, operating with the applicable rules of standing. The Court therefore found that s 69ZA did not reach the respondent's asserted common law standing. [30]
The Court also rejected an argument that the enforcement scheme as a whole implied exclusivity for government entities. The EPA has monitoring, compliance and enforcement functions, and the Biodiversity Act gives it powers including stop-work orders, remediation orders, investigations and civil enforcement proceedings. But the existence of those powers did not, by itself, show that private persons with common law standing were excluded. [20]-[22]
The textual contrast between criminal and civil proceedings mattered. Section 13.3 of the Biodiversity Act says that proceedings for a native vegetation offence may “only” be taken by specified persons. Section 13.14A says that the EPA may bring civil proceedings to remedy or restrain a Pt 5B breach, but does not say that only the EPA may do so. The Court considered that the difference did not support an implication of exclusive EPA authority for civil proceedings. [21]-[22], [32]
Nor did the Court accept that private enforcement would undermine EPA administration. Section 69ZA(3)(a) allows “a Minister” to use the open-standing provisions covered by s 69ZA(1). Ministers do not exercise the EPA's compliance powers, but can invoke those provisions. That feature did not fit an argument that the enforcement arrangement was meant to depend exclusively on EPA enforcement. [33]
The Court separately rejected a proposed requirement that a person with a special interest could sue only if the statutory enforcement regime was inadequate. It explained that the historical development of equitable intervention to enforce public obligations was associated with perceived gaps in available remedies and practical difficulties with relying on the Attorney-General. But that history did not require courts to assess adequacy afresh every time they considered standing. The Court noted that earlier standing authorities had not conducted such an inquiry and that no workable criteria for it had been proposed in this appeal. [14]-[16]
Finally, the legislative history did not establish the necessary exclusion. The predecessor scheme was intended to disapply open-standing provisions, including former s 123 of the Environmental Planning and Assessment Act, in specified forestry-related circumstances. But references in the explanatory material to “third-parties” were contestable and did not show that the legislature had considered and excluded persons whose private rights were affected or who had a special interest. Extrinsic materials could assist with statutory meaning, but could not displace the enacted text. [34]-[39]
The judgment describes the established standing framework rather than replacing it. Before this decision, the Boyce formulation distinguished between interference with a claimant's private rights and a special interest in the subject matter of proceedings to enforce a public right or duty. The Court noted that its prior cases had developed the second limb so that it may be satisfied by a “special”, “sufficient” or “real” interest, assessed in relation to the relief sought. [8]
The Court also explained that statutory schemes can alter this framework. A statute may abolish or relax common law standing, or identify exhaustively the persons who may enforce the relevant rights or duties. But exclusion of common law standing, or restriction of access to court, requires a clear and unmistakeable indication. [12]
The decision applies those principles to Pt 5B and s 69ZA. Its important distinction is between (a) statutory open-standing rights, conferred on any person whether or not their rights are affected, and (b) common law standing available to a person with affected private rights or a special interest. Section 69ZA restricts the former, in the specified circumstances, but the High Court held it did not clearly exclude the latter. [27]-[31], [40]
The judgment also clarifies that the historical rationale of inadequate public remedies does not become a separate threshold test for standing in each case. That does not mean that adequacy is irrelevant to every equitable remedy: the Court recognised the traditional principle that equitable relief may be unavailable where another remedy is adequate. Its point was narrower. Adequacy of alternative enforcement mechanisms was not made a required inquiry into whether a special-interest claimant could commence proceedings. [14]-[16]
At [12], the Court stated that “no implication to that effect will be recognised unless it appears clearly and unmistakeably.” In plain English, a court will not infer that legislation quietly takes away standing or court access where the statute does not clearly show that intention.
At [13], the Court said that, absent a “clear and unmistakeable statutory intention to the contrary”, a person satisfying either limb of Boyce may commence and maintain proceedings to enforce a Pt 5B right, duty or obligation. This links the LEC's equitable jurisdiction to the ordinary standing rules, unless legislation clearly changes them.
At [29], the Court said s 69ZA was “not directed to the topic of standing per se” but to statutory provisions that abolish common law standing rules. The practical distinction is that a statutory right for everyone to sue regardless of personal impact is not the same thing as common law standing requiring a recognised interest.
At [32], the Court compared the word “only” in Biodiversity Act s 13.3 with s 13.14A. The former restricts who may take specified criminal proceedings. The latter authorises EPA civil enforcement proceedings but does not expressly make the EPA the exclusive civil claimant.
At [39], the Court concluded that the text and legislative history did not show that the legislature had addressed whether people with affected private rights or a special interest were to be excluded. References to “third-parties” in the background materials could not do the work of clear statutory language.
At [40]-[41], the Court stated the operative construction principle, found no clear and unmistakeable intention to withdraw or limit access to the LEC, and dismissed the appeal with costs. This resolved the standing question but did not determine the merits of the respondent's underlying allegations.
The decision is most directly relevant where proceedings seek declaratory or injunctive relief in the LEC to enforce public duties or obligations under Pt 5B of the Forestry Act or an IFOA, and the claimant relies on common law standing rather than a statutory open-standing provision. A claimant's private rights may be affected, or the claimant may rely on a special interest in the subject matter. The judgment did not reconsider the particular special-interest finding, because Forestry Corporation did not challenge it in the High Court. [6], [8], [13]
It is also relevant when a party argues that an enforcement power conferred on a regulator is necessarily exclusive. The judgment indicates that authorising a regulator to bring civil proceedings does not, without more, establish exclusivity. The statutory language and structure must be examined, including contrasts such as the express “only” in s 13.3 and its absence in s 13.14A. [32]
The decision does not establish that anyone may bring these proceedings. It preserves the common law standing requirements rather than removing them. Nor does it decide whether a claimant has a sufficient special interest on different facts, whether a pleaded breach occurred, whether a particular remedy should be granted, or whether an interlocutory injunction is justified. [6], [8], [13]
A further distinction is important where the claim is brought under a statutory provision expressly conferring open standing. Section 69ZA applies to that category in the specified circumstances. The High Court's reasoning distinguishes such statutory claims from claims based on ordinary common law standing. [24]-[30]
The supplied judgment contains no decisions made after 9 April 2025, so it cannot establish how later courts have treated this precedent. It records the High Court's own treatment of earlier authorities, including Boyce, Hobart International Airport, Bateman's Bay and Truth About Motorways. [8]-[16]
For the High Court's reasoning in this case, the key point is that it drew on those authorities to describe standing, equitable enforcement of public duties and the effect of statutory schemes. It did not state that any earlier case had been overruled. It distinguished the appellant's proposed “inadequate enforcement regime” requirement from the approach taken in the standing authorities it discussed. [15]-[16]
Any assessment of later application would need later judgments not included in the material provided here. The judgment itself supports describing its holding and the authorities it considered, but not asserting subsequent adoption, qualification or criticism.
The High Court determined the statutory standing issue on the footing that the Court of Appeal's special-interest finding was not challenged. It did not define in detail what facts would establish a special interest in future forestry or environmental proceedings. Its account of the test remains tied to the particular interest and the relief sought. [6], [8]
The judgment also did not determine the merits of the alleged IFOA breaches or whether the respondent would ultimately obtain declarations or an injunction. The primary judge had made separate interlocutory findings, but the High Court appeal addressed only whether private persons with common law standing could commence proceedings. [4], [6]
The precise reach of s 69ZA in other kinds of proceedings remains dependent on the statutory provision invoked and the relationship between the alleged breach and the categories in s 69ZA(2). The Court noted that those categories may extend beyond breaches of Pt 5B or an IFOA, including certain breaches of another Act or a common law norm. The judgment's discussion should therefore be read with the statutory text and the particular claim in view. [25]-[27]
Finally, the Court rejected a general adequacy inquiry as a precondition to standing, but did not abolish the traditional limits on equitable remedies. It expressly acknowledged that injunctions may depend on the adequacy of other remedies in the ordinary equitable sense. How that remedial question applies to a particular claim remains distinct from whether the claimant has standing. [14]-[16]
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAGELER CJ,
EDELMAN, STEWARD, JAGOT AND BEECH-JONES JJ
FORESTRY CORPORATION OF NEW SOUTH
WALES APPELLANT
AND
SOUTH EAST FOREST RESCUE INCORPORATED RESPONDENT
Forestry Corporation of New South Wales v South East Forest Rescue Incorporated
[2025] HCA 15
Date of Hearing: 12 February 2025
Date of Judgment: 9 April 2025
S120/2024
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
N C Hutley SC with D P Hume, J E Taylor and C J Beshara for the appellant (instructed by Norton Rose Fulbright Australia)
J G Korman with J P Farrell, T M Wood and L F Sims for the respondent (instructed by Blair Arthur & Associates)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Forestry Corporation of New South Wales v South East Forest Rescue Incorporated
Practice and procedure – Standing – Where appellant conducts forestry operations pursuant to integrated forestry operations approval ("IFOA") – Where respondent brought civil enforcement proceedings seeking injunctive and declaratory relief – Where primary judge found respondent lacked standing because no "special interest" in subject matter of proceedings – Where Court of Appeal of Supreme Court of New South Wales set aside primary judge's finding that respondent had no special interest – Where s 69ZA of Forestry Act 2012 (NSW) limited certain actions in respect of provisions of Act that give any person a right to institute proceedings to remedy or restrain a breach, whether or not any right of the person has been or may be infringed by or as a consequence of that breach – Whether Court of Appeal erred in concluding on proper construction of Pt 5B of Forestry Act and cognate provisions of Biodiversity Conservation Act 2016 (NSW) private persons or entities with special interest in subject matter of proceedings have standing to bring proceedings to enforce duties and obligations imposed by IFOA.
Words and phrases – "any person", "auxiliary jurisdiction", "Class 4 jurisdiction", "clear and unmistakeable intention", "commence and maintain proceedings", "common law standing", "declaratory or injunctive relief", "duties and obligations", "equitable jurisdiction", "injunction", "integrated forestry operations approval", "liberty of access", "matter", "private rights affected or interfered with", "public rights, duties or obligations", "special interest", "standing", "subject matter", "third-parties".
Biodiversity Conservation Act 2016 (NSW), ss 13.3, 13.14, 13.14A, 13.15.
Forestry Act 2012 (NSW), Pt 5B.
Land and Environment Court Act 1979 (NSW), s 20.
GAGELER CJ, EDELMAN, STEWARD, JAGOT AND BEECH-JONES JJ. The appellant, the Forestry Corporation of New South Wales, conducts "forestry operations" in certain State forests pursuant to an integrated forestry operations approval ("IFOA") granted under Pt 5B of the Forestry Act 2012 (NSW).1 Section 69ZA(2) of the Forestry Act precludes the bringing of proceedings under the statutory provisions referenced in s 69ZA(1) to, inter alia, enforce the duties and obligations imposed by an IFOA and Pt 5B. The provisions referred to in s 69ZA(1) enable "[a]ny person" to either bring proceedings, or seek leave to bring proceedings,2 for breaches of environmental legislation whether or not any right of the person has been or may be infringed by or as a consequence of that breach. Section 69ZA(2) does not apply to proceedings brought under those provisions by the government entities referred to in s 69ZA(3).
The issue raised by this appeal is whether proceedings in the Land and Environment Court of New South Wales ("the LEC") to enforce duties and obligations imposed by an IFOA and Pt 5B can be commenced and maintained by persons with a "special interest" in the subject matter of the proceedings, or can only be commenced and maintained by the government entities identified in s 69ZA(3). For the reasons that follow, the Court of Appeal of the Supreme Court of New South Wales (Adamson JA, Basten and Griffiths A‑JJA) was correct to find that such proceedings can be commenced and maintained by persons such as the respondent with a special interest in the subject matter of the proceedings. Accordingly, the appeal must be dismissed.
In January 2024, the respondent filed a summons in the LEC which invoked the Court's "Class 4 jurisdiction" ("the LEC proceedings"). The summons sought declaratory and injunctive relief to enforce what the respondent contended were obligations imposed on the appellant's conduct of forestry operations under an IFOA and Pt 5B of the Forestry Act.
On 7 February 2024, the primary judge (Pritchard J) dismissed the respondent's application for an interlocutory injunction to restrain the appellant from conducting any forestry operations in compartments of six State forests unless the appellant complied with what the respondent contended was required by the conditions of the IFOA.3 In dismissing the application, the primary judge rejected the appellant's contention that s 69ZA of the Forestry Act precludes a party that meets the "common law test for standing" from commencing proceedings to enforce compliance with the duties and obligations imposed by the IFOA and Pt 5B.4 However, her Honour found that the respondent did not establish, "even on a prima facie basis, that it ha[d] a sufficient special interest" in the subject matter of the proceedings to give it standing at common law to enforce the conditions of the IFOA.5 Her Honour also found that, even if the respondent had established a sufficient special interest, it had not established a serious question to be tried or an arguable case for relief.6 Consistent with her Honour's finding about the respondent's lack of standing, the primary judge dismissed the entirety of the LEC proceedings.
The respondent appealed the primary judge's dismissal to the Court of Appeal. By a notice of contention, the appellant repeated its submission that s 69ZA of the Forestry Act excluded common law standing. The Court of Appeal agreed with the primary judge that persons who satisfied the common law test for standing, including those with a special interest in the subject matter of the proceedings, could enforce the duties and obligations imposed by an IFOA and Pt 5B.7 However, the Court of Appeal upheld the respondent's contention that it had such a special interest and set aside the primary judge's order dismissing the LEC proceedings.8
In Boyce v Paddington Borough Council Buckley J held that, without a relator proceeding, a person could bring proceedings regarding an interference with a public right or to enforce a public duty where either their private rights are interfered with ("the first limb") or they suffer some special damage peculiar to themselves ("the second limb").17 Through a series of cases this Court has reformulated the second limb of that test so that it is satisfied where the person has a "special", "sufficient" or "real" interest in the subject matter of the proceedings18 such as to warrant the grant of the relief sought.19
In Hobart International Airport Pty Ltd v Clarence City Council Gageler and Gleeson JJ described standing as an aspect of the "positive law that defines the jurisdiction of the court to hear and determine the proceeding in which the order is sought" so that "[w]hat, if anything, a person must establish to have a right to seek a particular order from a particular court in the exercise of a jurisdiction vested in it by a Commonwealth law depends on what, if anything, the Commonwealth law vesting that jurisdiction in that court expressly or implicitly requires to be established".20 Whether or not standing is best conceptualised as a dimension of jurisdiction concerning the persons who are amenable to the exercise of the court's power,21 or as a plaintiff's power to invoke jurisdiction,22 standing provides a "liberty of access to the court".23
The same approach should be adopted to a State law vesting jurisdiction in, and providing access to, a court of a State (such as the LEC). At least so far as public duties and obligations are concerned, ordinarily the vesting in a court of equitable jurisdiction,24 or the conferring upon a court of equitable powers,25 means that the court may grant declaratory or injunctive relief to persons who meet the test for standing derived from .
The balance of the appellant's submissions were that either s 69ZA of the Forestry Act in particular, or the statutory scheme of Pt 5B generally, excluded the capacity of anyone, other than the government entities identified in s 69ZA(3), to commence and maintain proceedings to enforce the duties or obligations that Pt 5B imposed.
Part 5B of the Forestry Act is entitled "[i]ntegrated forestry operations approvals" and applies to forestry operations in State forests or other Crown-timber lands.42 The purpose of Pt 5B is to "provide a framework for forestry operations".43 That framework authorises the carrying out of forestry operations in accordance with principles of ecologically sustainable forest management and integrates the regulatory regimes for environmental planning and assessment, protection of the environment and threatened species conservation.44
Division 2 of Pt 5B addresses the procedure for and effect of granting an IFOA for forestry operations the subject of Pt 5B. The carrying out of such activities is subject to the terms of an IFOA,45 including relevantly any conditions imposed on the conduct of forestry operations by a biodiversity conservation licence under the Biodiversity Act or an environment protection licence under the Protection of the Environment Operations Act 1997 (NSW) ("the POEO Act").46 It is an offence to contravene a requirement imposed by an IFOA.47
The Environment Protection Authority ("the EPA") is responsible for monitoring the carrying out of forestry operations under Pt 5B and for enforcing compliance with the requirements of IFOAs,48 including instituting criminal or civil proceedings.49 To that end, each of Pt 11 (except Div 3),50 Pt 12 and Pt 13 of the Biodiversity Act is applicable to the enforcement of Pt 5B of the Forestry Act.51 The applicable provisions of Pt 11 of the Biodiversity Act enable the EPA,52 among other things, to: exercise compliance powers such as making a stop work order if any action is likely to result in a contravention of, relevantly, Pt 5B;53 or order a person to carry out specified remediation work if it is satisfied that, relevantly, any native vegetation, threatened species or threatened ecological community has been damaged in or as a result of the commission of an offence against the Biodiversity Act or Pt 5B.54 Part 12 of the Biodiversity Act confers a range of investigative powers on authorised officers, such as the power to: require the production of information and records;55 enter premises;56 and compel answers to questions.57
Within Div 1 of Pt 13 of the Biodiversity Act, s 13.3 provides that proceedings for a "native vegetation offence", which includes an offence under Pt 5B,58 "may only be taken" by a police officer, the EPA or a person duly authorised by the EPA (emphasis added). Within Div 2 of Pt 13, s 13.14A provides that the EPA "may bring proceedings in the [LEC] for an order to remedy or restrain a breach of [Pt] 5B of the Forestry Act". Section 13.14A(3) confers power on the LEC in those proceedings to make such orders as the Court thinks fit to remedy or restrain a breach.
Within Div 4 of Pt 5B of the Forestry Act, ss 69W to 69ZA exclude or limit the application of provisions of environmental legislation, such as Pt 5 of the Environmental Planning and Assessment Act 1979 (NSW) ("the EPAA Act"),59 during any period that an IFOA applies to the carrying out or granting approval of forestry operations.
Section 69ZA provides:
"(1) This section applies to the following statutory provisions –
(a) section 252 or 253 of the Protection of the Environment Operations Act 1997,
(b) a provision of an Act that gives any person a right to institute proceedings in a court to remedy or restrain a breach (or a threatened or apprehended breach) of the Act or an instrument made under the Act, whether or not any right of the person has been or may be infringed by or as a consequence of that breach,
(c) section 219 of the Protection of the Environment Operations Act 1997.
(2) Proceedings may not be brought under a statutory provision to which this section applies if the breach (or threatened or apprehended breach) to which the proceedings relate is as follows –
(a) a breach of this Part (including a breach of any forest agreement),
(b) a breach of an integrated forestry operations approval,
(c) a breach of an Act or law that arises because any defence provided by an integrated forestry operations approval is not available as a result of a breach of the approval,
(d) a breach of the Act that includes the statutory provision (including a breach of an instrument made under that Act) if the breach relates to forestry operations to which an integrated forestry operations approval applies.
(3) This section does not apply to any proceedings brought by –
(a) a Minister, or
(b) the Environment Protection Authority or a member of the staff of the Authority, or
(c) in the case of the provision of an Act referred to in subsection (1)(b) – a government agency or any government official engaged in the execution or administration of the Act." (emphasis added)
Section 69ZA(2) precludes the bringing of proceedings "under" the statutory provisions referred to in s 69ZA(1) other than by the persons and entities specified in s 69ZA(3). It was not in dispute that the proceedings brought by the respondent fell within s 69ZA(2) in that they either related to a breach of Pt 5B,60 or related to a breach of an IFOA.61 However, that does not exhaust the type of proceedings that fall within s 69ZA(2). They include proceedings alleging a breach of another "Act", such as the Biodiversity Act, where the breach is not justified or excused because of any defence provided by an IFOA.62 Section 69ZA(2) may also apply to proceedings alleging a breach of a norm arising under or derived from the "common law" (such as trespass or nuisance) that is not justified or excused because of any defence provided by an IFOA.63
Section 69ZA(1)(a) and (c) identify three provisions of the POEO Act upon which s 69ZA(2) operates, namely ss 252, 253 and 219. The relevance of the POEO Act to an IFOA has already been noted.64 Each of ss 252 and 253 provides that "[a]ny person" may bring proceedings in the LEC, for a breach of the POEO Act in the case of s 252, and for a breach of any other Act that is causing or is likely to cause harm to the environment in the case of s 253.65 Those provisions expressly enable "[a]ny person" to bring proceedings "whether or not any right of the person has been or may be infringed by or as a consequence of the breach".66 Similarly, s 219 of the POEO Act enables "[a]ny person", granted leave by the LEC, to institute proceedings in that Court for an offence against the POEO Act or the regulations made under it.67 A person may seek that leave whether or not any right of that person has been or may be infringed.68
Section 69ZA(1)(b) refers to other statutory provisions that have a similar effect to ss 219, 252 and 253, ie, provisions which, in terms, confer a right to institute proceedings on "[a]ny person" whether or not any right of the person has been or may be infringed. Sections 13.14 and 13.15 of the Biodiversity Act are examples of such provisions. Other provisions which confer standing on "[a]ny person" whether or not any right of the person has been or may be infringed are also found in environmental legislation in respect of which the LEC has Class 4 jurisdiction.
As noted, the appellant contended that the effect of s 69ZA(2) is to preclude "[a]ny person" (ie, all persons), other than those identified in s 69ZA(3), from bringing proceedings of the kind referred to in s 69ZA(2). The appellant contended that the phrase "whether or not any right of the person has been or may be infringed" excludes any person who satisfies the first limb of Boyce v Paddington Borough Council from bringing such proceedings. According to the appellant, in those circumstances, it would be incongruous if persons who satisfied the second limb of the test derived from Boyce v Paddington Borough Council could nevertheless enforce the duties and obligations imposed by Pt 5B.
The appellant's submission overstates the effect of the text of s 69ZA(1)(b) and (2). Those provisions are not directed to the topic of standing per se but instead are directed only to certain statutory provisions that abolish the common law rules of standing. The relevant question that arises under s 69ZA(1) is whether the statutory provision confers a right to institute proceedings on "[a]ny person" in terms that expressly or impliedly apply "whether or not any right of the person has been or may be infringed". Thus, if a statutory provision confers a right to institute proceedings for a breach of Pt 5B on any person whose rights have been or may be infringed by such a breach, then that provision would not fall within s 69ZA(1)(b). Such a provision would not confer a right to institute proceedings on "[a]ny person" whether or not any right of the person has been or may be infringed.
Even if it is correct to treat the statutory provisions of the LEC Act conferring Class 4 jurisdiction on the Court (ie, s 20(1)-(5)) as giving rise to a "right" on the part of persons to institute proceedings, those provisions do not confer that right on "[a]ny person", much less confer the right to bring proceedings "whether or not" any right of that person has been or may be infringed. Those provisions of the LEC Act pre-suppose that some of the statutory provisions and instruments to which they refer confer such rights and are to be otherwise understood as, at most, conferring a right to institute proceedings on those persons who satisfy either limb of Boyce v Paddington Borough Council.
As noted, the appellant contended that, even if s 69ZA does not preclude persons such as the respondent from commencing the LEC proceedings, an implication to that effect should nevertheless be drawn from Pt 5B and the cognate provisions of the Biodiversity Act. The difficulty with that contention is that, while s 69ZA is to be read in its statutory context,70 it is the only provision within Pt 5B that expressly deals with the topic of who has standing to commence civil enforcement proceedings and, as explained, its scope is limited. If s 69ZA does not expressly achieve what the appellant contended it does (which it does not), it is difficult to see how an implication to that effect could be drawn from the remainder of the provisions in Pt 5B and the Biodiversity Act.
In any event, a consideration of the balance of the provisions of Pt 5B and the cognate provisions of the Biodiversity Act does not assist the appellant. In contrast to s 13.3(1) of the Biodiversity Act, which specifies that criminal proceedings may "only" be taken by certain designated persons (including the EPA), s 13.14A of the Biodiversity Act does not purport to confer exclusive authority on the EPA to bring civil enforcement proceedings in respect of breaches of Pt 5B. The appellant contended that the inclusion of the word "only" in s 13.3(1) was necessary to exclude the authority of the Director of Public Prosecutions to commence such proceedings71 and also possibly to exclude the application of the common informer provision of the Criminal Procedure Act 1986 (NSW).72 That may be so, but it does not address why s 13.14A is not similarly expressed. As noted by the Court of Appeal, if s 13.14A is read facultatively it sits comfortably with the above construction of s 69ZA(1)(b) as excluding the bringing of proceedings under a statutory provision which, in terms, permits "[a]ny person" to do so whether or not any rights of the person have been or may be infringed by or as a consequence of the breach.
The appellant also contended that the scheme of regulation and enforcement by the EPA would be undermined if civil enforcement proceedings could be commenced by a person who only has a special interest in the subject matter of those proceedings. However, that contention is inconsistent with s 69ZA(3)(a), which confers authority on "a Minister", and not just the Minister administering the Forestry Act,73 to bring proceedings under the statutory provisions referred to in s 69ZA(1). None of the Ministers of the Crown can exercise the compliance and enforcement powers of the EPA, but they can invoke the open standing provisions referred to in s 69ZA(1) to enforce compliance with the duties and obligations imposed by an IFOA and Pt 5B.
The appellant sought to derive support from the legislative history of s 69ZA and Pt 5B. Part 5B has its origins in Pt 4 of the Forestry and National Park Estate Act 1998 (NSW) ("the FNPE Act").74 In the second reading speech for the Forestry and National Park Estate Bill 1998 (NSW), the Minister noted that forestry operations in State forests had previously been "governed by a plethora of regulations, approvals and licences" and that Pt 4 established a "co-ordinated approach" through the use of IFOAs, which would provide a "framework for forestry operations, [with] an approval which is up front, [and] clearly defined".75 Prior to the enactment of Pt 4 of the FNPE Act, the conduct of forestry operations was regulated by Pt 5 of the EPAA Act, in respect of which the open standing provision in former s 123 of the EPAA Act operated*.* The second reading speech noted that it was the government's intention that Pt 5 of the EPAA Act would not apply in respect of the carrying out of forestry operations during any period that an IFOA applies to those operations.76 Thus, s 36(1) of the FNPE Act excluded IFOAs from the assessment process under Pt 5 of the EPAA Act.
Part 4 of the FNPE Act as originally enacted included a provision enabling the "relevant Minister" to bring civil enforcement proceedings in the LEC for an order to remedy or restrain a breach of the conditions of an IFOA77 and s 40 of the FNPE Act was not relevantly different from s 69ZA of the Forestry Act. As noted, when Pt 4 of the FNPE Act was enacted, Pt 6 of the EPAA Act included s 123. Section 123 enabled "[a]ny person" to bring proceedings in the LEC for an order to remedy or restrain a breach of that Act "whether or not any right of that person has been or may be infringed by or as a consequence of that breach".78 Thus, former s 40 of the FNPE Act limited the scope of s 123 of the EPAA Act so that where the breach or threatened breach to which the proceedings related had the requisite connection to Pt 4 of the FNPE Act or an IFOA, only three designated persons that (broadly) corresponded to those identified in s 69ZA(3) could invoke that provision.
The appellant emphasised part of the second reading speech which described the clause of the Forestry and National Park Estate Bill that became s 40 as "remov[ing] the rights of to bring proceedings relating to the [IFOA]" (emphasis added). The explanatory note also described the effect of the clause as "exclud[ing] certain civil and criminal enforcement proceedings by under environment protection and other legislation for breaches of the proposed Act or related to the proposed Act" (emphasis added).
The applicable rule of construction in this case is that any inference or conclusion that the LEC's jurisdiction, or the liberty of access to the LEC, was withdrawn or limited by Pt 5B of the Forestry Act and the cognate provisions of the Biodiversity Act should not be drawn unless such an inference or conclusion is clear and unmistakeable. The appeal fails because a clear and unmistakeable intention to that effect is not demonstrated.
The appeal should be dismissed with costs.
The Coastal Integrated Forestry Operations Approval dated 16 November 2018. ↩
Forestry Act 2012 (NSW), s 69ZA(1)(c); Protection of the Environment Operations Act 1997 (NSW), s 219 ("POEO Act"). See below at [26]. ↩
South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales [2024] NSWLEC 7 at [16]‑[24]. ↩
South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales [2024] NSWLEC 7 at [109], [128], [175]. ↩
South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales [2024] NSWLEC 7 at [140]. ↩
South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales [2024] NSWLEC 7 at [177]. ↩
South East Forest Rescue Inc v Forestry Corporation of New South Wales [No 2] (2024) 259 LGERA 293 at 299 [1], 306 [30], 325 [111]. ↩
South East Forest Rescue Inc v Forestry Corporation of New South Wales [No 2] (2024) 259 LGERA 293 at 299 [1], 310 [46], 339 [176]. ↩
Land and Environment Court Act 1979 (NSW), s 5(1) ("LEC Act"). ↩
LEC Act, s 22. ↩
Forestry Corporation of New South Wales
South East Forest Rescue Incorporated [2025] HCA 15
(2024) 259 LGERA 293
(1999) 198 CLR 380
(2000) 200 CLR 591
(1995) 183 CLR 552
(2022) 276 CLR 519
(1980) 146 CLR 493
(1998) 194 CLR 247
Appeal dismissed with costs. [Order; 41]
On 5 September 2024, the appellant was granted special leave to appeal. The sole ground of appeal was that the Court of Appeal erred in concluding that private persons or entities can bring proceedings to enforce the duties and obligations imposed by an IFOA. There was no challenge to the Court of Appeal's finding that the respondent had a special interest in the subject matter of the proceedings.
The treatment of standing to enforce public rights, duties or obligations as an aspect of the jurisdiction or the power to invoke the jurisdiction vested in the relevant court is consistent with standing being subsumed within the concept of a "matter" in Ch III of the Constitution.26 However, leaving aside any constitutional restraints, whether satisfaction of the first limb of Boyce v Paddington Borough Council or the second limb as reformulated by this Court is either sufficient or necessary for a litigant to have standing to commence and maintain proceedings to enforce public rights, duties or obligations is subject to a consideration of the statutory scheme creating and regulating those rights, duties or obligations.
A statutory scheme that creates and regulates public rights, duties or obligations may abolish or relax the common law requirements of standing27 or it may restrict or exhaustively identify the persons or class of persons who may commence proceedings to enforce those rights, duties or obligations.28 In determining whether a statutory scheme excludes persons who satisfy either limb of Boyce v Paddington Borough Council from commencing and maintaining a proceeding to enforce a public right, duty or obligation in a court vested with equitable jurisdiction, the operative principle is that, like other laws that are said to withdraw or limit a conferral of jurisdiction on a court,29 or otherwise restrict the liberty of access to a court,30 no implication to that effect will be recognised unless it appears clearly and unmistakeably.
As the LEC is vested with an equitable jurisdiction in relation to the enforcement of any right, duty or obligation imposed by Pt 5B of the Forestry Act, it follows that, absent a clear and unmistakeable statutory intention to the contrary, proceedings for the enforcement of such a right, duty or obligation can be commenced and maintained by a person who satisfies either limb of Boyce v Paddington Borough Council. The appellant contended, however, that if not excluded by s 69ZA or Pt 5B generally, equity's auxiliary jurisdiction to permit the private enforcement of statutory rights, duties or obligations could only be invoked if the statutory scheme for enforcement was "inadequate". That contention should not be accepted.
The appellant effectively relied upon the general principle that "[t]he foundation of much equitable jurisdiction must often be sought in the inadequacy of the remedy at law"31 so that an injunction in equity is not available if other remedies are adequate.32 But there was no suggestion in this case that any other remedy, apart from an injunction, would be adequate as a response to the breaches alleged to have been committed by the appellant. The appellant's submission thus did not draw from this traditional limit upon the remedy of an injunction but became, instead, an appeal to treat injunctions in support of public rights in the way that historically the writ of mandamus was treated at common law. Historically it had been the case that "[w]herever ... an express remedy is afforded by statute, plain and specific in its nature, and fully adequate to redress the grievance complained of, mandamus will not lie".33
The appellant relied on the statement of Gummow J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd that the enforcement of statutory rights or obligations of a public nature by persons who satisfy the "modern concept of 'standing'" involved the "use of the auxiliary jurisdiction in equity to fill what otherwise were inadequate provisions to secure the compliance by others with particular statutory regimes or obligations of a public nature".34 Gummow J's statement referred to the earlier joint judgment of Gaudron, Gummow and Kirby JJ in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd, which traced the historical development of equity's involvement in matters of public law up to the current position in which equity permits intervention by a person with sufficient material interest in the subject matter of the proceeding.35 Part of the historical explanation for that development was the perceived "inadequacy" of the legal remedies otherwise available to vindicate the public interest,36 including the difficulties that arose from relying on the Attorney‑General to pursue actions to restrain ultra vires activities of public bodies,37 especially given the differences between the role of the Attorney‑General in England and that of the Attorney‑General in this country.38
However, this historical explanation for the expansion of equitable remedies to enforce public rights, duties or obligations does not translate into a requirement for a court to examine the adequacy of the statutory or other remedies available to restrain a breach of a public obligation or to enforce a public right on each occasion that it must consider whether a person with a special interest in that subject matter can commence and maintain proceedings. No such inquiry was undertaken in Australian Conservation Foundation Inc v The Commonwealth,39 Onus v Alcoa of Australia Ltd40 or Bateman's Bay. No such factor was identified as relevant in Hobart Airport.41 In this case, no criteria were suggested by which this Court would make such an assessment.
In addition, within Div 2 of Pt 13 of the Biodiversity Act, s 13.14(1) provides that "[a]ny person" may bring proceedings in the LEC for an order to remedy or restrain a breach of the Biodiversity Act or the Biodiversity Conservation Regulation 2017 (NSW). Similarly, s 13.15(1) provides that "[a]ny person" may bring proceedings in the LEC for an order to remedy or restrain a breach of a "biodiversity stewardship agreement". In respect of all proceedings brought under Div 2 of Pt 13, s 13.17(1) provides that such proceedings may be brought "whether or not any right of the person has been or may be infringed by or as a consequence of the breach concerned".
To the extent that the legislative origins of Pt 5B reveal that at the time of the enactment of its predecessor there were open standing provisions such as the former s 123 of the EPAA Act that were intended to be partially disapplied, then that history is consistent with the above construction. However, the appellant contended that the extrinsic materials reveal a legislative intention to exclude all persons from bringing civil enforcement proceedings other than those identified in the predecessor to s 69ZA(3), ie, a Minister, the EPA and a government agency or government official.
The appellant's contention reads too much into the use of the phrase "third‑parties" in the extrinsic materials at the expense of the text of s 69ZA. It is at the very least contestable whether a party who falls within the first limb of Boyce v Paddington Borough Council, ie, whose private rights are interfered with by a breach of an obligation or duty imposed by Pt 5B, could properly be characterised as a "third‑part[y]" when compared with someone whose rights are unaffected by that breach. The position is no different with the second limb.
Legislative history and extrinsic materials cannot displace the meaning of the statutory text. The phrase "third‑parties" as used in those materials only has utility if and in so far as it assists in fixing the meaning of the statutory text,82 specifically the text of s 40 of the FNPE Act (and s 69ZA). The contestable meaning of the phrase "third‑parties" does not assist in construing what is otherwise the clear effect of s 40 of the FNPE Act and its successor provisions. Those provisions were clearly directed to partial disapplying of the open standing provisions of the EPAA Act and other environmental legislation. Those open standing provisions were its target and that target was hit.83 However, the text, legislative history and extrinsic materials do not reveal any advertence on the part of the legislature to whether or not persons whose private rights were affected by a breach of an obligation imposed by Pt 5B, or persons who had a special interest in the subject matter of proceedings to enforce such an obligation, were also intended to be excluded by s 69ZA. No clear and unmistakeable intention or implication to that effect is apparent from s 69ZA or the balance of Pt 5B and the cognate provisions of the Biodiversity Act.
LEC Act, s 71(1) provides that "proceedings of the kind referred to in [s] 20(1)(e) may not be commenced or entertained in the Supreme Court". ↩
LEC Act, s 20(1)(e), (2)(a). ↩
LEC Act, s 71. ↩
See Supreme Court Act 1970 (NSW), ss 22, 23, 65, 66, 69. ↩
See Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 394 [28]; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 628-629 [97]-[98]. Note: a "relator" is a person otherwise competent to bring and maintain a proceeding. ↩
LEC Act, s 20(3)(a). ↩
[1903] 1 Ch 109 at 114. ↩
See, eg, Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 558; Hobart International Airport Pty Ltd v Clarence City Council (2022) 276 CLR 519 at 538 [32], 550 [65], 560 [91]. ↩
See, eg, Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 266 [47]; Allan v Transurban City Link Ltd (2001) 208 CLR 167 at 174 [15]. ↩
(2022) 276 CLR 519 at 546 [56]. ↩
Zurich Insurance Co Ltd v Koper (2023) 277 CLR 164 at 182 [48]. ↩
Hobart Airport (2022) 276 CLR 519 at 555 [79]. See also Liau, Standing in Private Law: Powers of Enforcement in the Law of Obligations and Trusts (2023) at 40, 56‑58. ↩
Hobart Airport (2022) 276 CLR 519 at 555 [79]. ↩
Hobart Airport (2022) 276 CLR 519 at 546 [58], 549 [63], 550 [65], 552 [69]. ↩
LEC Act, s 22. ↩
Compare Hobart Airport (2022) 276 CLR 519 at 550-551 [67] with 557-563 [84]‑[99]. ↩
See, eg, Truth About Motorways (2000) 200 CLR 591. ↩
See Bateman's Bay (1998) 194 CLR 247 at 266 [48]. ↩
Shergold v Tanner (2002) 209 CLR 126 at 136 [34]. ↩
Jamieson v The Queen (1993) 177 CLR 574 at 596; Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 633. ↩
Hanbury, Essays in Equity (1934) at 112. ↩
Wood v Sutcliffe (1851) 2 Sim (NS) 163 [61 ER 303]; Imperial Gas Light and Coke Co v Broadbent (1859) 7 HLC 600 at 612 [11 ER 239 at 244]; Director of Public Prosecutions v Jones [1999] 2 AC 240. ↩
High, A Treatise on Extraordinary Legal Remedies, Embracing Mandamus, Quo Warranto, and Prohibition (1874) at 18. ↩
(2000) 200 CLR 591 at 628-629 [98]. ↩
(1998) 194 CLR 247 at 257-267 [24]-[50]; see also Truth About Motorways (2000) 200 CLR 591 at 628 [97]. ↩
Bateman's Bay (1998) 194 CLR 247 at 257-258 [25]-[26]. ↩
Bateman's Bay (1998) 194 CLR 247 at 260-261 [33]-[34]. ↩
Bateman's Bay (1998) 194 CLR 247 at 262-263 [38]; see also Truth About Motorways (2000) 200 CLR 591 at 608-610 [37]-[41]. ↩
(1980) 146 CLR 493. ↩
(1981) 149 CLR 27. ↩
See (2022) 276 CLR 519 at 552 [69]. ↩
Forestry Act, s 69K(1). ↩
Forestry Act, s 69L(1). ↩
Forestry Act, s 69L(1). ↩
Forestry Act, s 69M(2). ↩
Forestry Act, s 69P(2). ↩
Forestry Act, s 69SA(1). ↩
Forestry Act, s 69SB(1). ↩
Forestry Act, s 69SB(3). ↩
Forestry Act, s 69X. ↩
Forestry Act, s 69SB(2); Biodiversity Conservation Act 2016 (NSW), s 14.7A ("Biodiversity Act"). Part 5B of the Forestry Act is defined as "native vegetation legislation" for the purposes of the Biodiversity Act: see Biodiversity Act, s 1.6(1). ↩
See Biodiversity Act, s 14.7A(1)(a)-(b). ↩
Biodiversity Act, s 11.3. ↩
Biodiversity Act, s 11.15(1)(b), (e). ↩
Biodiversity Act, s 12.8(2). ↩
Biodiversity Act, s 12.11(1). ↩
Biodiversity Act, s 12.19(1). ↩
Biodiversity Act, s 1.6(1). ↩
Forestry Act, s 69W(1). ↩
Forestry Act, s 69ZA(2)(a). ↩
Forestry Act, s 69ZA(2)(b). ↩
Forestry Act, s 69ZA(2)(c). ↩
Forestry Act, s 69ZA(2)(c). ↩
See above at [19]. ↩
POEO Act, ss 252(1), 253(1). ↩
See POEO Act, ss 252(3), 253(2). ↩
POEO Act, s 219(1). ↩
See POEO Act, s 219(1B). ↩
See, eg, National Parks and Wildlife Act 1974 (NSW), s 193(1); Heritage Act 1977 (NSW), s 153(1); Environmental Planning and Assessment Act 1979 (NSW), s 9.45(1) ("EPAA Act"); Biological Control Act 1985 (NSW), s 54(1); Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW), s 10(1); Rural Fires Act 1997 (NSW), s 100H(1). ↩
See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39], quoting Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]. ↩
See Director of Public Prosecutions Act 1986 (NSW), s 8(1). ↩
See Criminal Procedure Act 1986 (NSW), s 14. ↩
See Interpretation Act 1987 (NSW), s 15(1)-(2). ↩
See Forestry and National Park Estate Act 1998 (NSW), s 2(3) ("FNPE Act"). With effect from 1 January 2013, Pt 4 of the FNPE Act became Pt 5B of the Forestry Act: see Forestry Act, Sch 4, item 4.11 [16]. ↩
New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 12 November 1998 at 9923. ↩
New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 12 November 1998 at 9924. ↩
See FNPE Act, s 32(2). ↩
EPAA Act, s 123(1). ↩
Forestry and National Park Estate Bill 1998 (NSW), cl 38. ↩
New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 12 November 1998 at 9924. ↩
New South Wales, Forestry and National Park Estate Bill 1998, Explanatory Note at 5. ↩
See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39]. ↩
See Emanuele v Australian Securities Commission (1997) 188 CLR 114 at 146. ↩
(2001) 208 CLR 167
(2023) 277 CLR 164
(2002) 209 CLR 126
(1993) 177 CLR 574
(1997) 191 CLR 602
(1981) 149 CLR 27
(2012) 250 CLR 503
(2009) 239 CLR 27
(1997) 188 CLR 114