Plaintiff v Defendant

2 The plaintiff, Mr Celestina, lives in a property owned by his wife Ms Roberta Esbitt on the coast road of French Island. In clear and responsible submissions, he identified the grounds of his judicial review proceeding as being that the Secretary made an error of law, that the Permit was unlawful, that the Wildlife Act did not empower the Secretary to grant it in circumstances where Mr Celestina and Ms Esbitt, as interested and affected resident occupiers and managers of private land, had not given the Department their consent or endorsement to the threatened species translocation plan which is the subject of the Permit.

3 Secondly, he contended that the Secretary failed to afford him natural justice or procedural fairness.

4 Thirdly, he contended that the Secretary failed to take into account relevant facts in reaching his decision to grant the Permit.

5 Before the Court, Mr Celestina sought directions in the proceeding but also sought the temporary suspension of the Permit.

6 I took Mr Celestina's application for a temporary suspension as an application for a stay of the grant of the Permit. As part of the exercise of the Court's judicial review powers, it may, in an appropriate case, suspend or stay the decision under review to ensure that the judicial review process can be completed effectively. The Court can grant the stay on appropriate terms taking into account the circumstances of the case.

7 The application was urgent because the bandicoots, or at least some of them, were to be released onto French Island on Friday 11 October 2019, two days after this application was heard.

8 Ms Esbitt's property is approximately 40 hectares of natural undeveloped land. It is zoned rural conservation with environmental significance overlays under the French Island and Sandstone Island Planning Scheme. It is bound by a Deed of Covenant for the Conversation of the Land with the Victorian Conservation Trust, now known as a Trust for Nature.

9 In accordance with Mr Celestina's and Ms Esbitt's deeply and sincerely held personal values and their obligations under the Planning Scheme and Covenant, they act to conserve and preserve the natural environment of their land and that of the French Island National Park and French Island generally. They cherish the unspoilt natural environment of the property and the Island and do not wish to see it developed in an ad hoc manner for other land uses. They pointed out that the Eastern Barred Bandicoot is a native marsupial species indigenous to Western Victoria and not to French Island.

10 Mr Celestina and Ms Esbitt became aware of the translocation proposal in 2009 but have particularly been involved in opposing it during the last 18 months. Mr Celestina pointed out that in many years of correspondence, he had objected and expressed concerns about the translocation proposal. He refused to accede, as he put it, to a de facto compulsory appropriation of the property for a land use they oppose.

11 Mr Celestina contended that the intention of the translocation proposal was to introduce a non-indigenous species across the entirety of the suitable habitat which encompasses approximately 9000 hectares. It includes the majority of French Island in private ownership and the property on which he lives.

12 Mr Celestina formed the view that the proposal, if implemented, would be unlawful and not authorised by the Wildlife Act which he argued did not empower the Secretary to compulsorily impose wildlife translocation of the bandicoots upon him, on non-consenting owners and land managers.

13 He also contended that in making the decision the Secretary breached the principles of natural justice. He argued that unless the decision was revoked, he faced the likelihood of irrevocable injury to his interests. He also argued that if the bandicoots were released as planned, the taxon will immediately begin to reproduce and overtime disperse among the available habitat of the island, including the property on which he resides.

14 Mr Celestina argued that based on the outcome of similar bandicoot translocations, that within six months of release their increased number, their geographical area of dispersal and factors reducing their trackability will render it very difficult to reverse their release. Such a reversal would be very costly and result in harm. He contended that should the planned release go ahead and it be subsequently determined following the final hearing of the proceeding that the granting of the Permit was unlawful and invalid, the defendant may have to pay considerable costs, but will not be at risk of the Court imposing any other sanction.

15 Reasons for the grant of the Permit were given in a Statement of Reasons written by a delegate of the Secretary, Ms Merryn Kelly, Regional Manager National Environment Programs, Port Phillip region. They were dated 30 September 2019 and were provided to Mr Celestina last week.

16 The reasons record that Mr Celestina had written letters in March and April this year to the Program Manager and the Environmental Research Co-ordinator with his and his wife's objection to the translocation proposal. The Department's response was that submissions would be considered and in June, Mr Celestina provided additional information that had been requested.

17 The reasons also refer to correspondence from French Island land owners and to a statement signed by 81 French Island land owners indicating support for the translocation proposal.

18 The delegate's reasons for the decision were that:

I considered that the Application was seeking approval for activities consistent with the purposes and objectives of both the Wildlife Act 1975 and the National Parks Act 1975. In particular:

• It related to the prevention of taxa of wildlife from becoming extinct (the Eastern Barred Bandicoot is listed as 'Threatened' pursuant to section 10 of the Flora and Fauna Guarantee Act 1988); and
• It promotes the study of ecology and zoology sciences relating to the conservation of the natural environment.

19 Ms Kelly stated that she was satisfied that the authorisation was necessary for the purposes of the conservation of the Eastern Barred Bandicoot and its research and scientific study. She considered that the proposal was consistent with action 1.7 of the Natural Recovery Plan for the Eastern Barred Bandicoot (mainland). She also considered the Threatened Fauna Translocation Evaluation Panel's assessment of, and recommendation to the Department to approve the translocation proposal, and its assessment that the proposal was likely to result in a net improvement in the survival prospects for the taxon. She also took into account that the Zoo Victoria Animal Ethics Committee approved the project and what she described as the overriding, perhaps intended to be overwhelming, public support for the proposal.

20 I mentioned that the Permit was granted under the Wildlife Act and the National Parks Act. The relevant provisions of the Wildlife Act include s 1A, which details its purposes, including the prevention of taxa of wildlife from becoming extinct.

21 I accept that the Eastern Barred Bandicoot is a threatened taxon.

22 By s 28A(1), the Secretary or delegate is empowered to give written authorisation to a person to amongst other things: (a) hunt, take or destroy wildlife; (ba) mark wildlife if satisfied that the authorisation is necessary (d) for the purposes of the management, conservation, protection or control of wildlife or for the purposes of education about wildlife, research into it or scientific or other study of wildlife or for other purposes.

23 Neither s 28A nor the relevant provisions in the National Parks Act, ss 4 and 20, refer to translocation of wildlife. That led Mr Celestina to submit that the legislation did not support a proposal of the magnitude that the Permit authorised. Counsel for the Secretary referred to various words in s 28A to suggest that there was power permitting the translocation.

24 The background to the decision was expanded on in the affidavit made today by Dr Amy Coetsee who is a Threatened Species Biologist employed by Zoos Victoria and was granted the Permit. She provided details of the Eastern Barred Bandicoot, the adoption of the National Recovery Plan, the engagement with the French Island community and how approval for the translocation was obtained.

25 Dr Coetsee advanced reasons as to why the bandicoots must be released this Friday. These included the need to release them at this time because of their age, that this was the optimal time to release them, their lifespan, the appropriate environmental conditions at present, and difficulties in maintaining the current structure of bandicoot breeding and release programs if they are not released on 11 October.

26 Dr Coetsee detailed the many French Island people, businesses and services that have been engaged to assist with the release of the bandicoots on Friday 11 October. These engagements or bookings had incurred expenditure of hundreds of thousands of dollars. She stated that the bandicoot release could not be rescheduled for practical and operational reasons, including that all captive animals were on a six-week pre-release veterinary program and diet.

27 In deciding whether a stay or suspension of a decision such as the grant of the Permit under consideration should occur, the Court does not finally decide the matters in dispute. The discretion to grant a stay is broad and must be exercised in accordance with the particular circumstances of the case. The grant of a stay of a decision in a judicial review application is part of the Court's essential function of judicial review. It is an important common law power of Supreme Courts.[1] The power should not be confined by the same considerations that govern the grant of interlocutory injunctions in private law or the grant of stays under the provisions of administrative law statutes.[2]

28 This case involves a clash of interests between those who have sought the Permit and those of land owners or occupiers, particularly Mr Celestina and Ms Esbitt.

29 The Court, as I have said, has a broad discretion. A person seeking a stay of a decision must present a case of sufficient substance, otherwise there would be no point in granting a stay. Without expressing any concluded view, I consider that Mr Celestina's submission about absence of power, particularly the power in s 28A, can be described as arguable. The determination of a stay application is not the time to decide whether the argument will succeed.

30 I consider the natural justice argument of less substance and more problematic, because s 28A contains no consultation or procedural fairness regime. Mr Celestina's other arguments did not possess any significant substance for present purposes.

31 Turning to other relevant discretionary considerations, many of them fall into the category of the balance of convenience. As mentioned, Dr Coetsee described the very substantial financial and environmental effects of stopping the translocation scheduled to occur this Friday, 11 October.

32 On the other hand, Mr Celestina has pointed to the effects on Ms Esbitt's property, on French Island and on him if the translocation proceeds and has queried the effectiveness of any final remedy that might require the recapture of the bandicoots.

33 Counsel for the defendant informed me that, in theory, during a period of about three to four weeks after release, most of the bandicoots might be removed although with some environmental consequences. I was informed that bandicoots move slowly across the ground and it will take up to seven years for them to cross the seven and a half kilometres from their point of relocation in the National Park on French Island to Ms Esbitt's property on the Coast Road.

34 Most of the matters put to me are important, but upon consideration I have reached the conclusion that in the exercise of the Court's discretion the matters relied on by the Secretary weigh against a stay being granted and I refuse it. These matters include the preparations already made, the expenditure incurred and the possibility of the released bandicoots being recaptured, at least for a short time, after their release.

35 The application for a suspension or a stay of the Permit or its operation is refused. I will make appropriate directions once I learn the date on which the proceeding can be listed for final hearing.

[1] Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531, 578-583 [91]-[108] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[2] Administrative Law Act 1978 s 9 and Administrative Decisions (Judicial Review) Act 1977 (Cth) s 15.