Plaintiff v Defendant

Supreme Court of Victoria|2021-08-19|Before: FORBES J

PRACTICE AND PROCEDURE - Interim injunction - Serious question to be tried - Timber harvesting in State forests - Whether balance of convenience favours grant of injunction -Whether there is an arguable case for the standing of the plaintiff to seek the relief - Special interest of incorporated association - Arguable case made out by plaintiff - Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 - VicForests v Kinglake Friends of the Forest Inc [2021] VSCA 195 - Flora and Fauna Guarantee Act 1988 (Vic).

2 The claim alleges that the logging is unlawful as it fails to comply with s 46(a) of the Sustainable Forests (Timber) Act 2004 (Act). By that provision compliance with the Code of Practice for Timber Production 2014 (Code) is required. The Code incorporates Management Standards and Procedures for timber harvesting operations in Victoria's State forests 2014 (Management Standards). The contravention is alleged to be a failure to comply with the four sub parts of clause 2.2.2 of the Code. This clause deals with what is required for compliance with conservation of biodiversity while conducting timber harvesting operations in State forests.

3 The Department of Environment, Land, Water and Planning (DELWP) carries out Forest Protection Survey Programs (FPSP) and publishes a report and a track log of the surveys it conducts. It published a FPSP report and track log in respect of the Flinders coupe which demonstrated the presence of six identified flora and fauna within the coupe. Each of these flora and fauna identified in the FPSP report and track log are identified on the Flora and Fauna Guarantee Act 1988 (Vic) Threatened List dated June 2021.[1] It is alleged that the FPSP and any subsequent survey or actions undertaken by VicForests do not comply with s 46(a) of the Act.

4 The application is supported by an affidavit of Marian MacDonald, who is the president of Binginwarri, sworn 11 August 2021.

5 Counsel for VicForests relied on an affidavit filed by Natalie Naylor, General Manager Governance and Legal of VicForests, affirmed 12 August 2021 which stated, amongst other things, that logging was not planned in the remaining two coupes until next year. On that basis, the urgent interim injunction was only sought in respect of the Flinders coupe.

6 VicForests accepted for the limited purpose of this interim injunction that the plaintiff could establish that there was a serious question to be tried, at least with respect to a breach of clause 2.2.2.2. That clause of the Code requires it to apply the precautionary principle to the conservation of biodiversity values to the identified flora and fauna present in the coupe. VicForests also accepted that the balance of convenience would favoured the granting of an injunction at this time.

7 The contest before me was whether it was arguable that the plaintiff has standing to bring the proceeding. VicForests took no issue at this hearing that the activities of the individual members were capable of demonstrating a special interest such that they would arguably have standing to seek the relief in their own right. However, it submitted that any special interest could not be acquired by, or transferred to, Binginwarri.

8 Binginwarri was incorporated on 2 August 2021 under the Associations Incorporation Reform Act 2012 (Vic). It held its inaugural meeting on 5 August 2021. It nominated six founding members and three further general members, two of whom resigned on 10 August 2021. The object of the association is recorded as:

Preserve the Nooramunga and Corner Inlet wetlands, by protecting, maintaining and improving the natural environment, native flora and fauna, and biodiversity of the Jack and Albert River catchment area.

9 The affidavit sets out the lengthy and extensive involvement of the seven members of Binginwarri with activities to protect and improve the natural environment and biodiversity within the Jack and Albert rivers catchment area. This was through extensive involvement in various local group projects and Landcare networks. In addition, they are landowners in the relevant area, some with land adjacent to the Alberton West State forest, others with land covered by Trust For Nature Covenants. Their activities have included steps to rehabilitate their own landholdings, to improve the natural environment and to promote biodiversity, as well as conducting similar activities on public land.

10 VicForests submitted that Australian Conservation Foundation v Commonwealth[2] (ACF) was binding authority for two principles. First, that an incorporated plaintiff does not acquire standing simply because some of its members may possess standing. Second, that the objects of the association alone are insufficient to establish standing. It recognised the recent Court of Appeal decision of VicForests v Kinglake Friends of the Forest (Kinglake)[3] but submitted that this case was distinguishable. There, Kinglake Friends of the Forest were able to demonstrate activities undertaken by it that were capable of meeting the test for standing in its own right. Here, Binginwarri cannot demonstrate any such activities. It was, like ACF, relying on no more than the object of the association alone, and, consistent with what was said by Gibbs J - it does not acquire standing because some of its members possess it.

11 The plaintiff submits that the purpose of Binginwarri aligns with that of its members and, for the purpose of establishing its equitable right to protect the public interest in the lawfulness of logging activity, its interests are taken to reflect those of its members. Where the members of an incorporated association have the requisite special interest to bring the action, so too does the association which they comprise. This submission relied on a number of authorities from interstate superior courts decided after ACF.

12 As part of demonstrating that there is a serious question to be tried, a plaintiff must show that it has an arguable case that it has standing to bring the claim and obtain the relief sought.[4]

13 The test for standing was expounded in ACF.[5] Unless a statute creates a basis, a plaintiff must have a 'special interest' in the subject matter in order to be granted standing. The special interest test requires a litigant to have more than a 'mere intellectual or emotional concern'.[6] A desire that the general law be observed, or an activity of a particular kind be prevented, is not sufficient of itself to establish a special interest.[7] The measure of the interest is that the person with standing is likely to gain some advantage 'other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if [the] action succeeds'.[8] It is measured to be an interest different to that of the public generally.

14 The test for an incorporated plaintiff is no different. The objects or purpose of the corporation or association may be a statement of what, in an individual, might amount to an intellectual or emotional interest. Objects may reflect, to a greater or lesser extent, the interests or some or all of its members. What was said in ACF was:

A natural person does not acquire standing simply by reason of the fact that he holds certain beliefs and wishes to translate them into action, and a body corporate formed to advance the same beliefs is in no stronger position.[9]

15 Since that decision the Courts have frequently grappled with the application of that test in many areas of public law. Importantly, the question of standing - which involves a consideration of both the position and interest of the plaintiff and the subject matter of the litigation - is driven by the facts and circumstances of the litigation. It was said, even before ACF:

Cases are infinitely various...what is sufficient interest in one may be less than sufficient in another.[10]

Gibbs J cited those comments with approval and Mason J repeated them in ACF.

16 Onus v Alcoa did not deal with an incorporated plaintiff but it did give further guidance on the sufficiency of an interest. There, the Aboriginal plaintiffs seeking to protect relics of cultural and spiritual importance were said to have an interest greater than the public at large and greater than that of persons of Aboriginal descent from other parts of Australia who were not custodians of the relics. The plaintiffs were members of a small community living in a particular area who are custodians of relics. Their interest was different to that of other Australians, Aboriginal or otherwise, who as a matter of social policy might be equally concerned.

17 The infinite variety of circumstances and the flexibility of the principle go hand in hand. In Kinglake, the Court of Appeal gave consideration to a similar argument that standing was precluded by proper application of the test in ACF. VicForests said ACF's argument; that an incorporated body, established on the basis of concerns for the environment which acted on those concerns should be recognised as having a special interest, was rejected by the High Court.[11] In Kinglake, the court said of an incorporated plaintiff:

Issues may arise in the context of incorporated plaintiffs and the extent to which they reflect, to the same or greater extent, the interests of their individual members or corporators. In understanding the position of an incorporated plaintiff, it will be necessary to consider their constituent documents as well as other matters, including purpose, activities, and scale.[12]

18 The Court drew five points from the analysis. They bear repeating:

(a) A plaintiff must show a special interest in the subject matter of the litigation;

(b) The need for a special interest reflects the need to show an interest or a position that is different from the public at large;

(c) The concept of interest is not limited to proprietary, business or economic interests;

(d) The need for the interest to be special or different 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. The nature of the interest in the subject matter must be more than merely emotional or intellectual;

(e) The subject matter of the litigation will involve a consideration of the statutory context, the nature of the power, and the form of relief sought. The place, if any, that the plaintiff has in the statutory scheme may be important.[13]

19 ACF does not allow the fact of incorporation or the objects and purposes, to strengthen a claim for standing. Those matters may clearly be relevant but, without more, they add nothing to consideration of whether, as a representative of its members as a whole, it would have standing. In Kinglake, this principle was demonstrated by a comparison between ACF and ACF v Minister for Resources[14] in which the Foundation had standing in relation to logging in forests that were part of the National Estate. The Foundation was able to establish standing where national environmental issues were involved but not local issues.

20 Likewise in Environment East Gippsland v VicForests,[15] WOTCH Inc v VicForests (No 6),[16] and Kinglake, the local nature of the association and the scope of its activities in that local area was sufficient to demonstrate an interest in the subject matter of the litigation, at least for geographical areas and species to which those activities were specifically directed. The many activities relied on by Richards J in Kinglake at first instance were said to demonstrate a 'direct and ongoing involvement in a particular local environment with which the proceeding is concerned, a connection which was absent in ACF.'[17] VicForests submits that this case is distinguishable given the association incorporated in August, a matter of days before the writ was issued, has no demonstration of any activities.

21 The plaintiff relies on a line of authorities from WA and other interstate decisions_._ First Ex parte Helena,[18] where three landowners had standing to challenge a rezoning on land that affected their landholding. The association incorporated with the object of protecting the rural character of the area was said to be sufficient to entitle it to also apply for the relief sought, notwithstanding it was incorporated after the relevant decision was taken. It did so recognising the test in ACF and the flexibility of that test as described in Onus v Alcoa.[19] Ex parte Helena was referred to in Bridgetown Greenbushes Friends of the Forests Inc.[20] Wheeler J, citing the test in ACF said that it was not to say that the interests of the members taken with other circumstances will never suffice. ACF was distinguished and the association was found to have standing. Wheeler J later expressed some reservation about this decision given the separate legal entity created by incorporation. Although considering herself bound by Full Court authority in WA on the question, she recorded some concern about whether the law in WA had run ahead of High Court authority and principle.[21] More recently in Queensland it was said that the evidence of members' special interests is capable of establishing the association's special interest, even though it was incorporated after the relevant decision.[22] Regard was also had to the activities of the association after its incorporation.

22 Bearing in mind that at this stage I am only concerned with whether Binginwarri has an arguable case such that it has standing, and not whether it has in fact made out that case, I do find that it has an arguable case.

23 First, the activities of an association are carried out by its officeholders, staff, members and volunteers as appropriate. The nexus between the activities and therefore the interests of the body and its members is necessarily variable. In this case we have an association with six members all of whom are local landowners in the catchment area who have been, on their own and on public land involved in environmental conservation and biodiversity conservation. ACF does not preclude consideration of the activity of members on the question of standing. It precludes attempting to strengthen a claim for standing by ascribing the special or local interest of some members to an association with a broader membership and purpose.

24 Second, there is no principle that limits the interest of the association to those activities carried out under the auspices of that association. At first instance in Kinglake, Richards J included consideration of activities that the association had undertaken before its incorporation.[23] Likewise involvement in activities under the auspices of other organisations whether as co-host or in some other capacity may be of relevance. The extent to which the activities of the individuals is relevant to Binginwarri's standing is one factor only.

25 Third, the argument as to the special interest of the members is strong. VicForests conceded for the purpose of the argument that each of the members would have a special interest. The arguable question for trial then is not whether that impermissibly strengthens Binginwarri's standing but whether that incorporated body itself has sufficient connection to the subject matter of the litigation beyond a strongly held corporate belief as expressed by its object.

26 Finally, given what is said about the importance of the distinction between belief and action as 'logical and coherent, and consistent with the purpose of the standing rule',[24] there is an arguable case as to what action may be attributable to the association and whether in all the circumstances its interest and action is sufficient to sustain standing. The statutory context is important. As was said in Kinglake, where the statutory context prescribes specific prohibitions designed to protect threatened species then the interest in compliance with the identification and protection of such things is capable of showing a commitment to the relevant subject matter.[25]

27 I propose listing the matter for mention to make appropriate orders for the further conduct of the proceeding.

[1] The flora identified are Cobra Greenhood, Velvet Apple-berry, Clover Glycine, and an opportunistic sighting of Marsh Sun-orchid. Powerful owls and Lace Monitors were also identified.

[3] [2021] VSCA 195 ('Kinglake').

[4] ACF; Onus v Alcoa Australia Ltd [1981] HCA 50; [1981] 149 CLR 27.

[10] Robinson v Western Australian Museum (1977) 138 CLR 283, 327-328 (per Mason J).

[14] Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200, [17].

[15] [2010] VSC 335; see also Environment East Gippsland v VicForests [2009] VSC 421.

[17] Kinglake Friends of the Forest Inc v VicForests (No 4) [2021] VSC 70.

[18] Ex Parte Helena Valley/Boya Association (Inc) & Ors; State Planning Commission and Beggs (1990) WAR 422.

[19] Ex Parte Helena Valley/Boya Association (Inc) & Ors; State Planning Commission and Beggs (1990) WAR 422, 437 (per Ipp J).

[20] Bridgetown Greenbushes Friends of the Forests Inc v Executive Director of Conservation and Land Management (1997) WAR 102.

[21] Re MacTiernan: Ex Parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; 30 WAR 138, 143.

[22] Save Surfers Paradise Inc v Gold Coast City Council [2018] QSC 18, [32] (per Boddice J).

[23] Kinglake Friends of the Forest Inc v VicForests (No 4) [2021] VSC 70, [54]; see also Environment East Gippsland v VicForests [2010] VSC 335, [80].

Fauna Guarantee Act 1988

Forests (Timber) Act 2004

Fauna Guarantee Act 1988

Forests (Timber) Act 2004

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Judgment (49 paragraphs)

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