Snowy Mountain Bush Users Group Inc v Minister for the Environment

Supreme Court of NSW|2024-06-06|Before: Harrison CJ

Solicitors: Ken Kush & Associates (Plaintiff) Department of Climate Change, Energy, the Environment and Water - Legal Branch (Defendants) File Number(s): 2024/169236 Publication restriction: Nil

JUDGMENT

HIS HONOUR: By its amended summons filed in Court on 6 June 2024, the Snowy Mountains Bush Users Group Incorporated seeks the following final relief: 1. A declaration that the Minister for the Environment and or the Secretary of the Department of Climate Change, Energy, the Environment and Water ("the defendants") are acting in contravention of s 10 of the Kosciuszko Wild Horse Heritage Act 2018 ("the Act"). 2. An injunction prohibiting the defendants from continuing with aerial horse culling operations in the Kosciuszko National Park ("the park"). 3. A declaration that the Amended Kosciusko National Park Wild Horse Heritage Management Plan ("the plan") adopted on 23 October 2023 by the Minister for the Environment is invalid. 4. An order that the decision of Minister for the Environment made on 23 October 2023 to adopt an amendment to the Kosciuszko National Park Wild Horse Heritage Management Plan be set aside.

Background

Section 4 of the Act provides that its object "is to recognise the heritage value of sustainable wild horse populations within parts of Kosciuszko National Park and to protect that heritage". To further this object, the Act provides for the preparation and implementation of a "wild horse heritage management plan". Pursuant to s 5 of the Act, one of the purposes of the plan is to identify the heritage value of sustainable wild horse populations within identified parts of the park and set out how that heritage value will be protected while ensuring other environmental values of the park are maintained.
A draft of such a plan must be prepared by the Chief Executive of the Office of the Environment and Heritage (now the Department of Climate Change, Energy, the Environment and Water) ("the Department"). Consultation on the draft plan must occur and representations on it must be provided by the Department to the Minister. The Minister may then, after considering the draft and representations made in relation to it, adopt the plan. Once adopted, the plan must be "carried out and given effect to" by the Department.
The Minister adopted the plan in October 2023. It does two things relevant to the present application. First, the plan permits aerial shooting of horses to be used as a control method in the park: clause 6.3. However, the plan mandates that this aerial shooting must be implemented in accordance with animal welfare legislation, animal welfare assessments and relevant existing standard operating procedures, including "HOR002 - Aerial shooting of feral horses" (2011) ("the 2011 SOP"). Secondly, the plan requires that "the total population of wild horses across the wild horse retention management areas will be reduced to 3,000 horses by 30 June 2027": clause 5.2. This population of 3,000 is to be "retained": clause 5.3.
The defendants oppose the grant of an injunction, in summary for the following reasons.
First, the plaintiff has not established the existence of a serious issue to be tried. Instead, the plaintiff seeks what the defendants characterise as a merits review of the plan. The plaintiff's legal arguments in the amended summons rest upon an erroneous construction of the Act and the plan. The alleged inconsistency with the national aerial shooting standard operating procedures does not arise on the proper construction of either 2011 SOP or the plan.
Secondly, the plaintiff has not demonstrated that it has standing to bring the proceedings in circumstances where the Act and the Prevention of Cruelty to Animals Act 1979 have no provisions according it standing, as well as because the evidence proffered by the plaintiff falls well short of establishing common law standing.
Thirdly, the plaintiff has not produced any cogent evidence capable of supporting its assertion that the number of wild horses in the park risks imminently falling below 3,000. There is thus no urgency calling for injunctive relief. The report of AirborneLogic has significant limitations and does not provide a valid basis for estimating the population of horses in the Northern Retention Area or the park as a whole. The plaintiff's methodology used to draw conclusions from the report as to horse numbers in the park is invalid.
Fourthly, there is no evidence that horses may be killed in a way that causes unnecessary or unjustifiable pain and suffering. The evidence from the RSPCA, which has been observing some of the aerial operations, is that no adverse animal welfare outcomes have occurred and that the aerial shooting is consistent with the Prevention of Cruelty to Animals Act.
Finally, the balance of convenience weighs strongly against the grant of an injunction. The plaintiff significantly delayed the commencement of these proceedings. The plan, as amended, has been in place since October 2023. The current control operations have been scheduled and have been proceeding for several months, and any delay in completing them will cause harm to the environment, result in waste of public resources and financial and other inconvenience for the National Parks & Wildlife Service. The defendants have proffered an undertaking to the Court to limit the number of horses removed under the plan pending the determination of these proceedings on an expedited basis so that the utility of an injunction has fallen away in the Wild Horse Retention Areas at least. The plaintiff has not proffered the usual undertaking as to damages. The plaintiff has not demonstrated that it has standing to bring the proceedings.

Plaintiff's submissions

The plaintiff provided extensive written submissions, which are reproduced in summary in the FIRST SCHEDULE to these reasons.

Defendants' submissions

The defendants' summarised written submissions are reproduced in the SECOND SCHEDULE to these reasons.

Conclusion

The defendant contends that the plaintiff's case is so frail that it does not rise above the threshold of a serious question to be tried, for the reasons outlined in the SECOND SCHEDULE. The defendants contend that the weakness of the proposed grounds of judicial review, and the limited evidence of standing, also weigh against the granting of the relief sought in the notice of motion.
For the purposes of this application and the need to deal with it expeditiously, I have set out the competing arguments in the schedules to these reasons. It is sufficient for present purposes for me to indicate that I consider that there is a serious question to be tried. Although it is not possible in my view to characterise the plaintiff's prospects of success as more than arguable, and recognising that such a conclusion or determination is not in fact presently required, it does seem to me that it cannot be said that the plaintiff's case is hopeless or that it is doomed to fail.
For example, the determination of whether the defendants are acting in contravention of their obligations under s 10 of the Act will depend upon a detailed analysis of what the plan, on its proper construction, requires, and then a comparison of those requirements with the activities that are in fact taking place purportedly pursuant to the plan. As the defendants observe, it is by no means clear that s 10 of the Act is intended to create an obligation enforceable by common law standing. Such a matter is one that will necessarily be agitated at a final hearing, and which is an issue that is among several that in my view are clearly arguable.
Precisely what was, or what should have been, before the Minister is a factual matter that is not amenable to determination on an interlocutory basis. By the same token, it cannot be said that there is no room for argument that the Minister may have proceeded with inadequate or misleading information about the details of aerial shooting of wild horses or the times to insensibility that may have informed the appropriateness of such methodology. Whether the 2011 SOP lacks the necessary rule-like quality that the plaintiff seeks to rely upon is another matter that does not invite only one answer. This list is not exhaustive.
I consider that the plaintiff has demonstrated the existence of a triable issue in the sense that the plaintiff's case rises above the threshold of a serious question to be tried. I am not satisfied, however, quite apart from other considerations with which I have dealt below, that there is yet demonstrated a sufficient likelihood of success standing alone to support the need to grant an interlocutory injunction.

Standing

The plaintiff must demonstrate that it has standing to bring the claim and obtain the relief sought. The Court has a discretion whether to decide that issue on a prime facie or final basis on an application for interlocutory relief: South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales [2024] NSWLEC 7 at [106]; South East Forest Rescue Inc v Forestry Corporation of New South Wales (No 2) [2024] NSWCA 113.
In the absence of statutory open standing, a plaintiff must have a "special interest" in the subject matter of the proceedings in order to have common law standing. The special interest test requires an applicant to have more than a "mere intellectual or emotional concern": Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493; [1980] HCA 53 at 530. A desire that the general law be observed, or an activity of a particular kind be prevented, is not sufficient by itself to establish special interest. 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". It must demonstrate that it has taken sufficient, concrete active steps to effectuate the particular concern: South East Forest Rescue (No 2) at [126]. The same principles apply in relation to an incorporated plaintiff.
The plaintiff's evidence in relation to its claimed special interest is contained in the affidavit of Henry Filtness dated 3 May 2024 at [9]-[12]: "Mission Statement and Purpose 9. SMBUG's main goal is to protect KNP's mountain heritage, traditions and the environment whilst providing access equity and sustainable recreational use to all park users. 10. SMBUG's mandate and purpose is to advocate for any park user who wants to conduct sustainable recreational activities within KNP. SMBUG does not advocate for one specific group within KNP and is concerned with a wide range of issues that affect many different groups who conduct recreational activities within KNP. 11. Since its inception, SMBUG has focused its efforts around three key areas that are extremely important to its membership base and supporters. Those key areas are Heritage, Access and Land Management within KNP. 12. In respect of Heritage, one of SMBUG's key goals is to promote the recognition and protection of brumbies within KNP and to ensure that Government Departments and ministries recognise that the brumbies within KNP are an integral part of our pioneering history and cultural heritage. SMBUG's aim is for the legendary and iconic brumby to be formally protected with sustainable numbers permitted to roam free within KNP."
The defendants have acknowledged in terms that the plaintiff's evidence in relation to its claimed special interest "may be sufficient for a prima facie finding of standing", even if other factors may exist that cast considerable doubt on whether a finding of standing on a final basis can be established. Even apart from that concession, and having regard to the nature of the issues that I am presently called upon to decide, I consider that the plaintiff's evidence is sufficient to establish that it has standing for the purposes of this interlocutory application.
For example, it is reasonably clear from Mr Filtness' affidavit that the plaintiff is and has for some time been actively advocating for the sustainable use of the park and the heritage value of wild horses, among other and related concerns. Mr Filtness said this: "Community Engagement 13. In the fulfilment of its mandate and purpose, SMBUG advocate for and on behalf of sustainable recreational users of KNP in a number of ways. 14. The first is through regular direct contact with committee members and members of the wider public who hold an interest in an issue being ventilated with government agencies. 15. The contact details for members of the Executive Committee are published on SMBUG's letterhead, including direct mobile phone numbers for the President, Vice President, Secretary, Assistant Secretary, and the Treasurer. This makes it easy for members of the public to contact Executive Committee members at any time. 16. SMBUG also has a Facebook group with 517 active members. On this Facebook page, members of the Facebook group can raise concerns with the administrators and engage in discussion with other group members. The Facebook group has high levels of engagement with 156 posts by members in April 2024. 17. Second, SMBUG regularly makes written submissions to both the Commonwealth and State Government bodies in relation to the management of environmental and cultural heritage values of the KNP. Most recently SMBUG made a submission to an independent Senate Inquiry called for by David Pocock. 18. SMBUG has also made submissions to the following: (i) The Snowy 2.0 Project; (ii) The 2007 Commonwealth Senate Committee Inquiry into Australia's national parks, conservation reserves and marine protected areas; and (iii) The 2008 Taskforce for Tourism and National Parks established by the New South Wales government. …. 19. Third, SMBUG also regularly conducts meetings with representatives of Snowy Hydro to discuss the impacts of their activities within KNP on recreational users. 20. Within the last 12 to 18 months, SMBUG has had at least three meetings with representatives of the Snowy Hydro to address the allocation of funding to improve amenities within KNP for recreational users. 21. For example, SMBUG Executive Committee members recently met with Mr Dean Lynch, Community Liaison Officer at Snowy Hydro. At that meeting, the Committee members raised with Mr Lynch a number of key issues to a wide range of park users, including campground facilities and amenities, the establishment of a new horse campground, and road access to the northern end of KNP following recent flooding. 22. Fourth, on 31 March 2024, SMBUG assisted in the organisation of a rally within KNP to protest NPWS's announcement to close parks of KNP for aerial culling of wild horses. SMBUG had numerous meetings prior to the rally with Mr Dick Roberts to help him bring the rally to fruition. The rally was a huge success with over 350 people in attendance including 90-100 attendees on horseback. Those attendees were not just local but came as far away as Queensland and Victoria. 23. During that rally, a member of the public approached a committee member of SMBUG describing the effect that the closure of KNP would have on her husband, a former serving police officer who suffers PTSD and is a keen trout fisherman. This was just one of a number of approaches to SMBUG committee members on that day."
The question of whether or not the plaintiff can establish that it has standing to bring the proceedings on a final basis should await a more detailed exploration of the issue with the benefit of cross-examination and a better understanding of the role played by the plaintiff in consultations with the Department and the offering of submissions on the Act and the plan.

Adequacy of damages

It is trite to observe that the plaintiff does not seek, and could presumably never demonstrate, any right or entitlement to damages. The plaintiff's litigious intercession on behalf of the protection of the environmental integrity of the park in general or the cultural heritage of the park's wild horses in particular, including in that last respect the humane culling of such horses, does not easily translate to amelioration of these concerns by monetary compensation. In my opinion, this issue is moot in the present context. Success by the plaintiff in the proceedings on a final basis could never sound in damages, and certainly not damages that the plaintiff has attempted to nominate or identify with any specificity.

Undertaking as to damages

The plaintiff concedes that it does not have sufficient financial resources to meet an adverse costs order. It does not conduct any business activities for profit and all members are volunteers. Its available means of raising funds are limited.
The defendants contend that the failure to proffer an undertaking as to damages weighs heavily on the question of the balance of convenience. They relied upon the following authorities.
In Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; [1981] HCA 75 at 311-312, Gibbs CJ said this: "The object of requiring a plaintiff who seeks an interlocutory injunction to enter into an undertaking of this kind is to attempt to ensure that a defendant will receive compensation for any loss which he suffers by reason of the grant of the injunction if it appears in the event that the plaintiff was not entitled to obtain it. The insistence upon the giving of an undertaking is a very important, if not an essential, means of preventing injustice from being done by the court when it makes an order at an interlocutory stage, before the rights of the parties have been finally determined. The court has a discretion not to enforce such an undertaking, but unless the defendant has been guilty of conduct that would render it inequitable to enforce the undertaking it would seem just, speaking generally, that a plaintiff who has failed on the merits should recompense the defendant for the damage that he has suffered as the result of the making of the interlocutory order. However, it is perfectly clear, and it appears from the words of the undertaking themselves, that the only damages to which a defendant is entitled are those which he has sustained by reason of the grant of the injunction. The generally accepted view is that the damages must be confined to loss which is the natural consequence of the injunction under the circumstances of which the party obtaining the injunction has notice…".
In Varley v Varley [2006] NSWSC 1025, Campbell J said this: "[66] The usual practice of the courts in the exercise of the general law jurisdiction is to require an undertaking as to damages as a condition of interlocutory relief. The authorities are extensively reviewed by Young J in Southern Tableland Insurance Brokers Pty Ltd (in liq) v Schomberg (1986) 11 ACLR 337. His Honour recognised that there is frequently stated to be special circumstances in which an undertaking as to damages might not be required, but said that he did not know of any case where such special circumstances existed. Given his Honour's vast experience, such cases must indeed be extremely rare."
In Frazer v Macquarie Airports Management Ltd [2009] NSWSC 1057, White J at [28] described the absence of an undertaking as to damages as a "well-nigh insuperable hurdle in obtaining interlocutory relief". In Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255, Rares J ordered an interlocutory injunction in favour of a native title claim group without requiring an undertaking as to damages but noted that none of the parties to the proceeding had sought an undertaking as to damages, or opposed the grant of some injunctive relief.
The plaintiff referred to Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority [2022] FCA 838 in support of its submission that an undertaking as to damages may not be required where an application is brought in the public interest. However, Bromberg J said at [47]: "The absence of an undertaking as to damages, nevertheless, weighs against the grant of an injunction because it serves to emphasise that the financial loss relied upon by Santos is not recoverable and will, in the end, be entirely borne by it."
Bromberg J refused to grant the injunction at [52] in part because of the absence of the undertaking. In Friends of the Gelorup Corridor Inc v Minister for the Environment and Water [2022] FCA 944, Colvin J also declined to grant an injunction in the absence of an undertaking as to damages.
The question concerning the status of the absence of such an undertaking must necessarily be a function of the probability that damage will be incurred if the injunction is granted as well as the likely amount of that damage. These matters may also be informed by the length of the period over or during which the injunction is sought or will be required. As will appear later in these reasons, the Court is able to offer the parties a final hearing commencing on 1 July 2024. In those circumstances, the assessment of any losses or other damage that may be sustained or incurred by the plaintiff, or any unnecessary suffering that may be occasioned to animals which the plaintiff wishes to avoid, will presumably be limited accordingly. However, the same cannot be said for the defendants whose projected losses will arguably extend beyond the final hearing and potentially even beyond the making of orders on a final basis.
For example, in this case, the defendants pointed to losses that they said would flow if their current aerial brumby culling operations were to be suspended. The defendants relied upon the latest affidavit affirmed by Liyan Leow affirmed on 5 June 2024, which was read without objection. The following paragraphs of that affidavit are relevant: "Demobilisations and re-mobilisation costs 11. The plaintiff has requested particulars of the categories of costs referred to in paragraph 19 of my original affidavit. I am informed by Mr Fleming that the estimated figure of $36,000 in mobilisation and demobilisation costs referred to in paragraphs 19(a) and 20(a) of my original affidavit accounts for mobilisation and demobilisation each taking 2 days to complete, and is an estimate informed by the following: (a) Staff wages for 20 staff for 2 days to demobilise the site and for staff to travel home. Eight staff are local to the area and 12 staff are brought in from other areas of the State. Mr Fleming estimates that the costs of the wages of those 20 staff for two days would be about $15,456; (b) The cost of 9 vehicles for 2 days to transport staff which Mr Fleming estimates would cost around $1350 for 2 days; (c) The cost of flying 2 helicopters from KNP to Bankstown Airport. Mr Fleming estimates these costs to be around $8,800 (given that it is around a 2-hour flight between Bankstown Airport and KNP). This is based on a hire rate of $2,200 per hour for each helicopter; (d) The cost for security for 2 days to provide security and then demobilise the site at the helicopter hangar in two locations. Mr Fleming estimates these costs to be around $3400 for 2 days; (e) Traffic control costs, including equipment for road closures. Traffic control is needed to direct the general public away from the areas closed due to removal operations. Mr Fleming estimates these costs to be around $6,000 for 2 days; (f) The hire costs of equipment for the operation (such as closed-circuit television, a site office and a Variable Message Sign). This equipment will need to be used for the purposes of demobilisation of the site, and then be collected and returned. Mr Fleming estimates these costs to be around $1674 for 2 days; (g) Accommodation costs at winter rates for the 12 staff who are not local to the area ($500 per night) totalling $12,000 for 2 days; and (h) Catering costs for the 12 staff who are not local to the area ($80 per day) totalling $1,920 for 2 days. 12. The resulting total number of $50,600 is in fact higher than the estimate of $36,000 provided in my original affidavit. 13. The plaintiff has requested details about the projects to which the NPWS helicopters would be deployed if it was necessary to cease operations in KNP. I am informed by Mr Fleming that, whilst the NPWS helicopters have not currently been re-allocated, they would be reassigned to other jobs were operations unable to continue at KNP. Such jobs include fire management, other feral animal control and infrastructure repair and maintenance. Any changes to the current scheduling of helicopters depends on the outcome of these proceedings. 14. The need to reassign helicopters and staff during the period of an injunction would cause operational inconvenience to NPWS, as those resources would otherwise have remained working on horse control in the KNP (as noted in my first affidavit at paragraph 19(b)). Helicopters cannot be immediately redeployed because there is a lead time for helicopters to be redeployed to other projects for safety and logistical reasons. 15. If an injunction is granted and came to an end before October 2024, NPWS would intend to resume operations in KNP due to NPWS' concern that the high population of brumbies in the Removal Area will have negative environmental impacts in those locations. Two NPWS helicopters would be needed to resume operations. Depending on the duration of any injunction, NPWS may need to hire external (third party) helicopters to undertake the jobs that would otherwise have been undertaken by NPWS helicopters. This is because NPWS helicopters may in the meantime have been tasked to do other jobs that cannot be delayed (of the kind referred to earlier in this affidavit). Mr Fleming has informed me that September is busy month for NPWS helicopter use, and there will not be any idle helicopters during this time. 16. The plaintiff requested further information about the figure of $266,000 referred to at paragraph 10(c) of my original affidavit being the estimated weekly cost if an operation were to take extra time. I am informed by Mr Fleming that the $266,000 weekly estimate is informed by the following: (a) The assumption that control operations would be conducted across 4 weekdays (as there would likely be 1 weekday where operations cannot be carried out due to operational factors such as weather) and carcass management would be conducted on 1 weekend day. I am informed by Mr Fleming that this is an average expectation for these types of operations. (b) The assumption that carcass management will be conducted over 1 weekend day. I am informed by Mr Fleming that this is a usual practice. (c) The estimated cost of 4 weekdays for the control operation of $205,096. The estimated costs of $51,274 for 1 weekday is made up of: (i) Traffic control costs (including equipment for road closure) of $3,000; (ii) Costs of security at the helicopter hangars at 2 locations of $1,700; (iii) The hire costs of equipment for the operation (such as closed-circuit television, a site office and a Variable Message Sign) of $837' (iv) Costs for 9 vehicles at $75 per vehicle, totalling $675; (v) Accommodation at winter rates for the 12 staff who are not local to the area $500 per person per night), totalling $6,000; (vi) Catering costs for 12 staff who not local to the area ($80 per person per day), totalling $960; (vii) Staff wages (average wage) for 20 staff totalling $7,728; (viii) Overtime wages for 20 staff totalling $6,174; (ix) Costs of 2 NPWS aircrafts at 5.5 hours per day at a rate of $2,200 per hour totalling $24,200. (d) The estimated cost of 1 weekend day for carcass management of $43,572 is made up of: (i) The costs set out in paragraph 16(c)(i)-(iii) above; (ii) 5 costs for 5 vehicles for operations at $75 per vehicle, totalling $375; (iii) Accommodation at winter rates for the 8 staff who are not local to the area ($500 per person per night) totalling $4000; (iv) Catering costs for 8 staff who not local to the area ($80 per person per day), totalling $640; (v) Staff wages (average wage) for 10 staff totalling $3,680; (vi) Overtime wages for 10 staff totalling $2,940; (vii) Costs of 1 NPWS helicopter at 5.5 hrs per day at a rate of $2,200 per hour, totalling $12,100; (viii) Costs of 1 contract helicopter at 6.5 hours, including equipment of $14,3000. (e) The estimated cost for the 1 weekday of the week that activities are not possible due to operational factors of $27,074. This is made up of the costs set out in paragraphs 16(c)(i)-(viii) which are still incurred to keep the operation active despite no activities being undertaken on the day. 17. The resulting extra total cost of $275,742 is actually higher than the estimated cost of $266,000 in my original affidavit. 18. The plaintiff also requested more information about the contractors who provide the security services in my first affidavit at [21]. Each of these contractors is local and would have to cease work if the operation is paused."
These costs are not inconsiderable. It is tempting in the context of a contest between a Government department or statutory corporation or similar and an incorporated body representing well-meaning and passionate members of the community with genuinely held and commendable concerns for the welfare of feral horses, to discount the significance of costs of this type upon the implied assumption that they amount to a small proportion of a very much larger budget and/or that they can in such circumstances be absorbed or incurred with minimal long-term and short-term impact. I consider that any such temptation should be resisted.
Moreover, in the event that the plaintiff were successful at a final hearing, in the sense that the defendants were ordered to desist with the aerial shooting of horses as part of the culling operations, any of the currently projected costs associated with that outcome referred to by Ms Leow would presumably flow from that event and fall naturally upon the defendants. However, it is not possible presently to predict the outcome of the proceedings, or that the defendants' culling activities will ultimately be enjoined entirely or reduced or limited by order of the Court. In the light of that uncertainty, and the defendants' projected losses, the absence of an undertaking as to damages weighs heavily in favour of a refusal of interlocutory relief.

Delay and extension of time

In relation to Grounds 1 and 2, the plaintiff seeks to put an end to what it characterises as the defendants' ongoing conduct in breach of s 10 of the Act, with the result that (with respect to these grounds) the plaintiff does not require an extension of time in relation to these grounds of review pursuant to UCPR 59.10(5).
In relation to Grounds 3-5, the plaintiff seeks to set aside the decision of the Minister to make the plan. This decision was made in October 2023, and therefore the plaintiff requires an extension of time to bring this challenge. The plaintiff submits that an extension of time should be granted in circumstances where: 1. By Grounds 1 and 2, its claim raises a challenge to certain ongoing activities in the park where an extension of time is not required, with the result that those claims will go to trial in any event. The claims made in Grounds 1 and 2 are closely connected with Grounds 3-5. 2. The validity of the plan is a matter of significant interest to the plaintiff and its members (see UCPR 59.10(3)(a)). 3. No prejudice would be caused to the defendant in granting the extension of time (see UCPR 59.10(3)(b)). 4. The plaintiff was not aware that aerial shooting would commence in the park until around February 2024. The plaintiff reasonably expected aerial shooting would not commence until the conclusion of a NSW Parliamentary inquiry into the proposed aerial shooting of brumbies in the park. The plaintiff did not become aware of the three-month limitation period for seeking judicial review until February 2024. (see UCPR 59.10(3)(c)). 5. The issue of the aerial shooting of brumbies is a matter of significant public interest and concern. This favours the grant of an extension of time (see UCPR 59.10(3)(d).
The plaintiff therefore submits that the time limit imposed by UCPR 59.10 is not an obstacle to its application for interlocutory relief.
The defendants assert that the plaintiff significantly delayed the commencement of these proceedings. The plan as amended has been on foot since October 2023. While the plaintiff states it became aware of the aerial operations "in February 2024", this cannot explain delay in seeking judicial review of the plan. The current control operations have been planned, are proceeding, and any delay in completing them will cause harm to the environment, result in under-utilisation of public resources and result in financial and other consequences for NPWS.
UCPR 59.10 is in these terms: (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following-- (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
By reason of the view I have otherwise formed concerning the plaintiff's entitlement to interlocutory relief, and my intention to allocate a date for the final hearing of the proceedings commencing in a matter of weeks, I consider that it is preferable, lest another judge be asked to decide whether this rule has any application, and if so, what it is, that I do not express a view about it.
On the different question of whether the plaintiff is out of court on the present application by reason of delay, it is unnecessary, for the same reason, to express a concluded view.

Balance of convenience - summary and conclusions

Having regard to the foregoing matters, I consider that the balance of convenience favours the refusal of interlocutory relief.
Apart from the absence of an undertaking as to damages, there is no evidence that satisfies me on the balance of probabilities that horses are being killed in a way that causes them unnecessary and unjustifiable pain. Aerial culling operations have been ongoing for some considerable time, and have been, and will be, the subject of observation and assessment by the RSPCA. That organisation has attested to the use of best practice and compliance with the Prevention of Cruelty to Animals Act.
Moreover, there is no evidence that satisfies me on the balance of probabilities that the number of horses that might be killed between now and 1 July 2024 will or may fall under the 3,000 threshold, which is not engaged until 30 June 2027 in any event.
Additionally, suspension of the control operations threatens the environment, with feral horses being recognised as a key risk to the park, including a number of vulnerable species. I accept that, having regard to the time between now and the final hearing, that factor assumes less significant than others.
Finally, public access to areas of the park is being limited at present to enable the control operations to take place. Any injunction may extend the time during which public access is constrained in this way.
For these reasons, I consider that the plaintiff's notice of motion filed on 7 May 2024 should be dismissed.

FIRST SCHEDULE The plaintiff contends that it has a prima facie case in relation to all aspects of its case, so that there is a serious question to be tried. The use of aerial shooting as a control method 1. The plaintiff's first concern is that the defendants are carrying out aerial shooting of wild horses in the park in a way that is not consistent with the plan, and therefore that the plan is not being "carried out and given effect to" by the Department as required by s 10 of the Act. The phrase "carried out and given effect to", when used in legislation in relation to an environmental management plan, means "to implement, undertake and deliver" the plan: Neilson v Secretary, Department of Planning & Environment [2023] NSWLEC 32 at [92], [133]. Such a plan is a "legal instrument" which must be construed in accordance with well-established principles of statutory construction: Neilson at [132]. 2. The determination of whether the defendants are acting in contravention of their obligations in s 10 of the Act therefore requires an analysis of what the plan, on its proper construction, requires, and then a comparison of those requirements with the activities that are in fact taking place purportedly pursuant to the plan. Inconsistency with the 2011 Standard Operating Procedures (2011 SOP): Ground 1(a). 1. Clause 6.2 of the plan states that all control methods, including aerial shooting, "will be implemented consistent with" various requirements, including the 2011 SOP. It further states that the defendants will develop standard operating procedures that are tailored for use in the park, but that these documents "will be consistent with national and/or state procedures where available". The "national" procedures include the 2011 SOP. 2. The 2011 SOP provides that: "In areas of heavy cover (e.g. vegetated creek lines, woodlands and forests), effectiveness [of aerial shooting] is limited since horses might be concealed and difficult to locate from the air." "Aerial shooting should not be done if the nature of the terrain reduces accuracy resulting in too many wounding shots and prevents the humane and prompt despatch of wounded animals." "Target horses [in aerial shooting operations] should be mustered away from watercourses and areas of dense vegetation before being shot…" 1. The "tailored" standard operating procedure for use in the park was "endorsed" on 9 December 2023. The National Parks and Wildlife Service SOP is not consistent with the 2011 SOP. This is because the NPWS SOP does not contain any restriction relating to the use of aerial shooting in "areas of heavy cover" or by reference to the "nature of the terrain" and does not require that horses be "mustered away from watercourses and areas of dense vegetation before being shot at". 2. The "Animal Welfare Assessment of Feral Horse Aerial Shooting: Kosciuszko National Park 2023" produced by the defendants, states that the 2011 SOP "do[es] not advocate aerial shooting in sloping areas or in areas with extensive vegetation cover", but that these are "unavoidable aspects of operating in Kosciuszko National Park". 3. As a result, aerial shooting in the park is not being implemented consistently with the requirements of the 2011 SOP. This contravenes the requirements of the plan. In carrying out aerial shooting in this way, the defendants are not carrying out or giving effect to the plan and are in contravention of s 10 of the Act. Lack of and/or inconsistency with animal welfare assessment: Ground 1(b). 1. Clause 6.2 of the plan states that for certain control methods for which there is an existing Australian or state standard operating procedure (which includes aerial shooting, by reason of the 2011 SOP), "an animal welfare assessment of the method was completed by the Kosciuszko Wild Horse Independent Technical Reference Group (ITRG) (2015) and reviewed by the Kosciuszko Wild Horse Scientific Advisory Panel (2020)". Clause 6.2 further states that for methods where there is no such national or state standard operating procedure, an animal welfare assessment will be completed before the control method is used. 2. The plain and necessary implication from the plan is that a particular control method, if it is to be used in the park, will be supported by an animal welfare assessment and/or carried out consistently with the animal welfare assessment performed in relation to that method. Any other approach would be legally unreasonable and irrational, particularly in light of the statement in clause 6 of the plan that control methods will be selected for use "based on maximising animal welfare outcomes" and the statement in clause 6.2 of the plan that "[e]nsuring optimal animal welfare outcomes is a key priority of the management of wild horses in the park". Statements in a plan of management "should not be dismissed as merely bureaucratic waffle": Neilson at [139]. 3. The NPWS SOP is not supported by and/or consistent with the animal welfare assessment of aerial shooting performed by the ITRG in its 2015 assessment ("the 2015 ITRG Assessment") in several respects: 1. The ITRG assessed that aerial shooting was consistent with acceptable animal welfare outcomes only where it fell into "Scenario 1", namely where "horses are chased for <1 minute, are rendered insensible with the first shot and do not recover consciousness prior to death". Scenario 1 contemplated that the first shot would hit the cranium of the horse. 2. No animal welfare assessment (giving rise to any acceptable outcome) has been conducted in relation to any type of aerial shooting other than the type described by the ITRG in Scenario 1. For this reason, in 2016 the ITRG, in its Final Report of the Independent Technical Reference Group: Supplementary to the Kosciuszko National Park Wild Horse Management Plan ("the 2016 ITRG Assessment"), stated expressly that where Scenario 1 aerial shooting is not possible, other control methods should be used instead. 3. However, the NPWS SOP does not contain any of the requirements of Scenario 1, namely that horses are not chased for greater than 1 minute, or that they are rendered insensible with the first shot, or that the first shot hits the cranium. To the contrary, the NPWS recommends that shooters "target the chest (heart/lung or head (brain)" and that initial shots targeting the chest "are preferred". Horses shot through the chest, as recommended by the NPWS SOP, will not be rendered insensible with the first shot and will suffer significant pain prior to their death. 4. The ITRG concluded (consistent with the 2011 SOP) that aerial shooting should only occur "in open areas with minimum high-canopied vegetation (tree cover or woodland)": 2015 ITRG Assessment. As with the 2011 SOP, the NPWS SOP ignores this requirement. 5. The ITRG concluded that it should be ensured that "the point of aim for the first shot is always the cranium": 2015 ITRG Assessment. This is because a shot to the cranium (unlike a shot to the chest) will cause instant insensibility and death. The NPWS SOP ignores this requirement. 1. Having regard to all these matters, the plaintiffs contend that the aerial shooting being carried out by the defendants has not been the subject of an animal welfare assessment and is therefore inconsistent with the plan and contrary to s 10 of the Act. Inconsistency with animal welfare legislation: Ground 1(c) 1. Clause 6.2 of the plan provides that all control methods will be implemented consistently with relevant NSW animal welfare legislation. This includes the Prevention of Cruelty to Animals Act, which by s 5(1) prohibits any "act of cruelty upon an animal". Section 4(2) of that Act provides that a reference to an act of cruelty committed upon an animal includes a reference to "any act or omission as a consequence of which the animal is unreasonably, unnecessarily or unjustifiably … beaten, kicked, killed, wounded, pinioned, mutilated, maimed, abused, tormented, tortured, terrified or infuriated…or inflicted with pain". 2. The plaintiff asserts that the aerial shooting being carried out by the defendants is unreasonable, unnecessary or unjustifiable in circumstances where it is inconsistent with the 2011 SOP, the 2015 ITRG Assessment and the 2016 ITRG Assessment, in the manner set out above. The defendants are therefore acting contrary to s 5 of the Prevention of Cruelty to Animals Act and, as a result, are not carrying out or giving effect to the plan (which requires compliance with the Prevention of Cruelty to Animals Act) pursuant to s 10 of the Act. Adoption of aerial shooting as a control method in the plan: Grounds 3 1. As noted above, pursuant to s 5 of the Act, before a plan under the Act is adopted, a draft plan must be produced by the Department, and consultation must take place in relation to that draft plan pursuant to ss 6 and 7 of the Act. 2. Following that consultation, pursuant to s 8 of the Act, the Department must give the draft plan, any representations on the draft plan by the Department, and a summary of any representations received under s 6 of the Act to the Minister for the Minister's consideration. Those representations must be considered by the Minister pursuant to s 9 prior to adopting the plan. 3. The Department provided representations on the draft plan and a summary of representations received under s 6 of the Act to the Minister in a document entitled "Summary of representations". 4. The Summary of Representations provided certain "recommendations" by the Department to the Minister. These included that: "Evidence to date suggests that best practice aerial shooting would lead to equivalent welfare outcomes to other forms of lethal control, and better outcomes than several of the current techniques". "Aerial shooting results in welfare outcomes that are equivalent to and better than all other control operations". 1. The Minister was required pursuant to ss 8 and 9 of the Act to consider these representations before adopting the draft plan, that is, the representations were mandatory relevant considerations. Where the Minister relies on advice that is materially inadequate or misleading in respect of such a mandatory relevant consideration, this may introduce legal error into the Minister's decision. In Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (2008) 251 ALR 80 Buchanan J said in this regard at [95]: "…a minister is not obliged to attempt personal detailed analysis of matters which, in some cases, may require a high level of expertise, as they did in the present case. He is entitled to rely upon the advice and analysis of officers of his department. That is so whether expressly permitted by statute or not. In the present case the minister was also expressly directed to take into account, among other things, the assessment report prepared by the department. However, when a minister relies upon advice, as he is entitled to do, and the advice is materially inadequate or misleading, any such failing may introduce legal error into the minister's decision. Whether it does so will depend upon the significance of the error or omission in the advice tendered." 1. The plaintiff contends in the present case that it is clear, even at a high level, that the representations referred to above were at best misleading and at worst lacked any proper justification. 2. Although the Minister does not appear to have been informed of this (and it is not referred to in the Summary of Representations), the source of the relevant recommendations appears to be a document entitled "Literature review on humanness and effectiveness of aerial shooting of feral horses" dated 7 August 2023 ("the Literature Review"). The plaintiff is not aware of the author of the Literature Review or how it came to be prepared. Nevertheless, it contains observations in the terms set out above that were included verbatim in the Summary of Representations. 3. The author of the Literature Review reached these conclusions on the basis of a single survey of aerial shooting of wild horses in 2017 ("the 2017 Hampton survey") that: 1. Involved "head shooting" only (that is, shooting at the cranium) with the result that, where the shot was successful, insensibility and death was immediate. 2. Involved 37% of horses not being rendered immediately insensible. 3. Occurred in a flat, arid and sparsely treed environment in central Australia. 4. Involved chase times of less than one minute. 5. Did not comply with the parameters of "Scenario 1" as identified in the 2015 ITRG Assessment, because not all animals were rendered immediately insensible. 1. The representations made in the Summary of Representations were misleading, because they suggested that aerial shooting resulted in welfare outcomes that are equivalent to and better than all other control operations even where the parameters of Scenario 1 were not complied with, where horses were shot in the chest and not the head, where a significant number of horses were not rendered immediately insensible, where chase times exceeded one minute and where aerial shooting occurs in areas of tree cover and woodland. Further, the representations did not disclose that the conclusions were based on a single survey of aerial shooting in 2017 which had been considered by the SAP in 2020 as "insufficient evidence" to reach firm conclusions about the animal welfare impacts of aerial shooting. 2. The misleading nature of the representations gave rise, in accordance with the reasoning of Buchanan J in Phosphate Resources, to legal error in the Minister's decision. 3. Furthermore, a factual error by the Minister in matters informing her consideration of something that is a mandatory relevant consideration may result in jurisdictional error. Moreover, the Minister's decision must have been reached in a way that discloses an evident or intelligible justification. If it does not, it is legally unreasonable and beyond power. 4. To the extent that the conclusions reached in the Literature Review can be read as applying generally, and beyond the limitations set out above, they were fundamentally flawed. The assessment of Scenario 1 by the ITRG and the 2017 Hampton survey do not provide a logical, sensible or probative basis for reaching general conclusions of general application like those ultimately provided to the Minister in the Summary of Representations. Use of aerial shooting as a control method anywhere in KNP: Grounds 4-5 1. The plan states that it permits the use of aerial shooting of wild horses as a control method "[f]or use in any area of the park", without preference for other control methods other than by reference to "operational factors". The Minister appears to have concluded, as is evident from clause 6.2 of the plan, that this approach was consistent with the Prevention of Cruelty to Animals Act. 2. The plaintiff contends that these statements in the plan are properly to be read as subject to the carrying out of aerial shooting in accordance with the 2011 SOP, animal welfare assessments and animal welfare legislation. 3. To the extent that (contrary to the above) the carrying out of aerial shooting under the plan is not to be read as subject to these requirements, the Minister's approach would disclose an error of law. In light of the known animal welfare risks arising from aerial shooting, the use of aerial shooting of wild horses "[f]or use in any area of the park", without preference for other control methods other than by reference to "operational factors", is an approach that is likely to "unreasonably, unnecessarily or unjustifiably" inflict pain upon wild horses, and is thus contrary to s 5 of the Prevention of Cruelty to Animals Act. 4. Moreover, the plan states at clause 6.3 that there is no hierarchy or preference between control methods other than what is considered operationally efficient. Again, in light of the known animal welfare risks arising from aerial shooting, there was no evident or intelligible justification for the first defendant to proceed in this way. The Minister's approach was therefore legally unreasonable. Risk of reduction of horses below 3,000 (Ground 2) 1. The plan requires that wild horse numbers in the park be reduced to, but retained at, 3,000 horses. 2. The plaintiff acknowledges that (subject to the various points about aerial shooting made above) the plan imports a discretion as to how the horse numbers are to be reduced to 3,000. However, on the proper construction of the plan there is no discretion in relation to the minimum number of horses to be maintained. NPWS have stated (correctly) that "The adopted plan requires 3,000 wild horses to be retained in the park to enable wild horse heritage values to be protected, consistent with the Act." 3. Thus, if the defendants are acting in a way that may reduce, or risk reducing, the number of wild horses below 3,000, then they are not implementing or delivering the plan and are thus contravening s 10 of the Act. 4. The plaintiff submits that the evidence indicates that there is a serious issue to be tried as to whether this is occurring. 5. The defendants are acting on the basis that, at a confidence level of 95%, there were a minimum of 12,797 horses in the park in October 2023. However, the plaintiff has obtained a report from AirborneLogic Pty Ltd that suggests that the survey figures on which the Defendants are acting may be inflated by approximately 400%. If that is right, then as at October 2023 there may have been as few as 3,298 horses in the park. However, evidence available to the plaintiff indicates that, since the formal aerial shooting operation commenced in April 2024, the defendants have removed 2,777 horses. 6. In these circumstances, the plaintiff maintains that there is a serious question to be tried as to whether the defendants are about to breach, or have already breached, the requirements of the plan and thus s 10 of the Act. Further, and in any event, despite the plaintiff's requests, the defendants have refused to cease horse culling operations even to take a short amount of time to consider the AirborneLogic report. This approach lacks an evident or intelligible justification and is therefore legally unreasonable.

SECOND SCHEDULE Is there a sufficient likelihood of success to justify the granting of the interlocutory injunction? 1. Legislative provisions are to be read in the context of the instrument as a whole "so as to provide that each of its terms are intended to give effect to harmonious goals": Heatscape Pty Ltd v Mahoney [2017] NSWCCA 135 at [36], see also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2. 2. The Act has the object "to recognise the heritage value of sustainable wild horse populations within parts of the park and to protect that heritage". A key feature of this purpose is the concept of "sustainable wild horse populations" which encompasses a balancing of the existence of the wild horses with limiting the damage they inflict on the park. 3. In relation to s 9 of the Act, it is notable that "the Minister may adopt the draft plan without alteration or with such alterations as the Minister thinks fit". Section 9 vests a substantial discretion in the Minister. 4. After a plan has been adopted by the Minister, s 10 of the Act says the adopted plan "must be carried out and given effect to" by the "Chief Executive" (now the Secretary of the Department of Climate Change, Energy, the Environment and Water). There are no provisions within the Act that provide for the civil enforcement of s 10, nor any provisions which incorporate the prohibition in s 81(4) of the National Parks and Wildlife Act 1974 that: "Despite anything in this or another Act or in an instrument made under this or another Act, if the Minister has adopted a plan of management under this Part, no operations may be undertaken in relation to the lands to which the plan relates unless the operations are in accordance with the plan". 1. Section 12 of the Act explains the relationship between the National Parks and Wildlife Act and the Act. An adopted plan prevails to the extent of any inconsistency with a plan of management under the NPW Act. By reason of s 12(2) of the Act, s 81(4) NPW Act "does not apply in relation to anything done to carry out or give effect to an adopted plan". This exclusion is of some significance because s 81(4) is enforceable through s 193 of the NPW Act by "any person". The Act contains no similar standing provision. It is by no means clear that s 10 of the Act is intended to create an obligation enforceable by common law standing. 2. The plan should be construed according to the principles specified in Neilson v Secretary, Department of Planning and Environment [2024] NSWCA 28 which concerned an application for judicial review of a plan of management adopted by the Minister under s 73B of the NPW Act: "(..) the Plan of Management must be construed in accordance with the principles of statutory construction. Relevant principles here include that the document must be read as a whole so as to give effect to all sections wherever feasible (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]- [71]); where individual words require construction, their ordinary meaning must be considered in context (Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [25]- [41]); and that words will not be added into the reading of a provision unless the words address simple, grammatical, drafting errors which would defeat the object of the provision if uncorrected: Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38]. 1. The observations of the Court of Appeal in that case about the effect of s 81 of the NPW Act have some relevance given the similar language in s 10 of the Act, notwithstanding the absence of an equivalent of s 81(4). Payne JA noted that s 81 "does not prescribe what it means to "carry out" or "give effect" to a plan of management" (at [46]), but held that it does not require the Secretary to pursue each and every identified policy and action in a plan, as these will often involve multiple, overlapping priorities. The Secretary has discretion in how to pursue those priorities. The purpose of the duty in s 81 is to ensure the Secretary pursues the implementation of that broad and multifocal duty (at [49]). 2. Similarly, here, the plan recognises that there is a tension between the maintenance of wild horses in the park and the preservation of its natural environment. Paragraph 5.2 says: "The overlap between the location of wild horses (and their heritage values) and the full range of other environmental values in the park presents a challenge in meeting the requirements of the Kosciuszko Wild Horse Heritage Act. That is, it is a challenge to both recognise and protect the heritage value of sustainable wild horse populations within identified parts of the park, while also ensuring other environmental values are maintained. This plan meets that challenge by dividing the park into 3 distinct management areas (Figure 2) and, for the management area in which wild horses will be retained, identifying a target (reduced) population for that area." 1. Where there are competing priorities and competing operational imperatives in the plan, the Secretary has discretion in how to pursue them. Other reasons there is no serious issue to be tried 1. Apart from the question of standing, there is not a sufficient likelihood of success to justify an injunction until the trial for the following reasons. The use of aerial shooting: Ground 1(a) 1. The plaintiff's contention that the defendants are acting in contravention of s 10 of the plan on the basis that the method of aerial shooting is inconsistent with its requirements, namely "the requirements that any aerial shooting accord with national standard operating proceedings, animal welfare assessments and animal welfare legislation" cannot be sustained. Inconsistency with the 2011 SOP: Ground 1(a) 1. The plaintiff's reliance on the national aerial shooting standard operating procedure "HOR002 - Aerial shooting of feral horses" (2011) ("the 2011 SOP) and the Kosciuszko Wild Horse Independent Technical Reference Group ("the ITRG") animal welfare assessment ("the ITRG 2015") are misconceived. The alleged inconsistency between the plan and the 2011 SOP does not arise on their proper construction and involves reading isolated clauses of the 2011 SOP without considering the whole of the document. 2. The plaintiff contends that NPWS' "Aerial shooting wild horse control standard operating procedure" ("the NPWS SOP") is inconsistent with the 2011 SOP because it does not contain any restriction relating to the use of aerial shooting in "areas of heavy cover" or by reference to the "nature of the terrain", nor does it require that horses be "mustered away from watercourses and areas of dense vegetation before being shot at". 3. That argument is plainly unsustainable as: 1. The rule that is sought to be invoked does not exist within the 2011 SOP, which is explicitly described as a "guide only", not intended to "replace or override the legislation that applies in the relevant state or territory jurisdiction". The 2011 SOP expressly acknowledges that aerial shooting can be used in "remote, inaccessible or rugged terrain", which applies to the park. Similarly, the reference to horses being "mustered away from watercourses and areas of dense vegetation before being shot at" is not expressed as a requirement, contrary to the plaintiff's assertion. This is said to be a "procedure" where "wounded animals will be difficult to locate if they go down in these locations." Further, both of these references are prefaced by the word "should" (rather than the word "must"). 2. Accordingly, the 2011 SOP lacks the necessary rule-like quality that the plaintiff seeks to rely upon. The NPWS SOP is in any event entirely consistent with the 2011 SOP because it requires that shooters not take a primary shot at an animal unless the anatomical target zone (the chest or head) is "clearly visible". That carries with it a policy that aerial shooting not be carried out if the nature of the terrain or any other factor will reduce accuracy through the inability to target the chest or head clearly. This is consistent with the 2011 SOP which specifies that "aerial shooting can be a humane method of destroying feral horses" when (among other things), the animal can be "clearly seen". 1. The 2011 SOP is now some 13 years old. As is acknowledged in the body of the 2011 SOP, at the time it was drafted, aerial shooting was prohibited entirely in NSW national parks. It is implausible that Parliament would have intended that a guide, which does not reflect changes in NSW Government policy that have occurred since it was drafted, should have the sort of prescriptive force contended for by the plaintiff. No animal welfare assessment: Ground 1(b) 1. The plaintiff relies upon the ITRG 2015 to assert that only one method of aerial shooting was assessed in that report as being consistent with "acceptable animal welfare outcomes" ("Scenario 1"), and refers to p 8 of that report as supporting that conclusion. Page 8 of the ITRG 2015 in fact says: "If aerial shooting were considered as a control option for wild horses then the terrain in which the horses were located and the skill and experience of shooters and helicopter pilots would be central to achieving good animal welfare outcomes." 1. That is consistent with the NPWS SOP which states that NPWS will use trained, experienced and skilled shooters and that aviation operations will comply with the NPWS Aerial Shooting (FAAST) Aviation Standard Operating Procedure. The NPWS SOP sets out other requirements relating to personnel that must comprise each team. 2. The plan does not require "consistency" with the ITRG 2015 assessment. The Plan states that where a national or state standard operating procedure exists, an animal welfare assessment of the method was completed by the Kosciuszko ITRG 2015. Further, the plan states that standard operating procedures for each control method will be developed "that are tailored for use in the park". These are to "be consistent with national and/or state procedures" where available, being a reference to the 2011 SOP, not ITRG 2015. Consistent with this, however, ITRG 2015 states that best practice for aerial shooting is followed in accordance with the 2011 SOP. 3. The ITRG's final report in 2016 does not state that when "Scenario 1 aerial shooting" is not possible, other control methods "should be used instead". It records simply that Scenario 1 had the least potential adverse impact on wild horses and sets out conditions that are more likely to result in a best-case scenario welfare outcome for shot animals, such as using highly experienced and skilled shooters and pilots. Thus, contrary to the plaintiff's submissions, "Scenario 1" is described as a "best case" and not as the only method consistent with "acceptable animal welfare outcomes". 4. Further, there appears to be a tension between Scenario 1 in the ITRG final report and the terms of the 2011 SOP with regard to whether shots should be aimed at the cranium of the animal. Scenario 1 contemplates that this would occur. However, the 2011 SOP expresses a preference for shots to be aimed at the chest of the animal, due to it being the larger target area. Therefore, on the terms of the 2011 SOP, a shooter would not always (and would not usually) achieve Scenario 1. Noting that the plaintiff also contends that the 2011 SOP has prescriptive force, this apparent tension seems to indicate that Scenario 1 could not have been intended by the ITGR to have been the only method consistent with acceptable animal welfare outcomes. 5. Indeed, the Final ITRG report states that "of the in situ lethal control methods assessed, aerial shooting under a best practice scenario had the lowest overall animal welfare impact". 6. Notably, ITRG 2015 and the 2016 Final report both recognise that all potential methods for control were found to have some adverse impact on horse welfare. That is relevant as the plan does not require there to be nil adverse welfare outcome, as Dr Harvey's affidavit may assume. 7. There is no basis for the assertion that the current aerial shooting has not been the subject of an animal welfare assessment. The development of the NPWS SOP followed engagement with the RSCPA and relevant specialists and took into account the 2011 SOP and the outcome of a preliminary program conducted in November 2023 directed precisely to the issue of assessing animal welfare. The current control operations have been reviewed by the RSPCA on a number of occasions, who confirmed that the SOP is appropriate, and they did not observe any breaches of the Prevention of Cruelty to Animals Act. Acting contrary to Prevention of Cruelty to Animals Act: Ground 1(c) 1. Having regard to the above, the claim in Ground 1(b) that the defendants are acting contrary to s 5 of the Prevention of Cruelty to Animals Act on the basis that the aerial shooting "is inconsistent with the 2011 SOP, the 2015 ITRG Assessment and the 2016 ITRG Assessment" has no merit or, for present purposes, has insufficient likelihood of success. Ground 3 1. Ground 3 of the amended summons asserts that misleading or material errors in representations made to the Minister can found jurisdictional error. It asserts that representations to the effect that aerial shooting results in welfare outcomes that are equivalent to and better than other control operations were misleading or lacked proper justification. 2. This ground is misconceived both factually and as a matter of law. The statements relied upon have been taken out of context in that they were accompanied by qualifications that successful outcomes depend on highly skilled and experienced shooters and the use of multiple shots. In any event, the Minister's obligation under s 9 to consider the submissions or a summary of them does not entail that they represent her actual reasons. 3. The plaintiff refers to Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No. 2) [2008] FCA 1521; (2008) 162 LGERA 154 at [95]. This reliance is misplaced. In that case, the Minister was under a statutory duty to consider both an environment impact statement and an assessment report prepared by the Department. The assessment report was the source of the inaccuracies, not public submissions, and the inaccuracies resulted in a failure to take account of a mandatory statutory requirement. 4. It has not been suggested that the summary of representations was incorrect in describing the representations received, nor that any particular representation had failed to be included. "Even if this had occurred, it would not necessarily follow … that the Minister had thereby failed to take into consideration a mandatorily relevant matter": Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11 at [35] -[38]. 5. This ground is really a disguised merits review of the decision to adopt the plan. Grounds 4 and 5 1. Grounds 4 and 5 of the Amended Summons similarly seek to disguise merits review as judicial review. 2. The plaintiff takes issue in these grounds with the availability of aerial shooting as a control method "for use in any area of the Park", as provided for in section 6.3 of the plan. 3. Authorising aerial shooting as an available control method for use in any area of the park plainly does not amount to an "error of law" or "jurisdictional error" in deciding to adopt the plan. The plan states in section 6.3 that the list of available methods does not imply any hierarchy or preference for one control method over another and the choice of method at any point in time will depend on operational factors. As set out in the affidavit of Ms Leow, the mix of control methods used will change over time considering the competing operational imperatives specified in the amended plan. 4. Section 6 acknowledges the competing operational imperatives in the implementation of the plan. For example: "Control methods will be selected for use based on maximising animal welfare outcomes (section 6.1), control effectiveness and taking into account management variables specific to the area. Staff, contractor and public safety during control operations is also a critical factor in identifying appropriate control methods. Management variables such as terrain, accessibility, weather and wild horse demographics, effectiveness, efficiency and cost also need to be considered (Kosciuszko Wild Horse Scientific Advisory Panel 2020)." 1. Consistently with the plan considered in Neilson, the plan gives the Secretary the discretion to determine the most appropriate control method at any given time having regard to the competing demands referred to above. This is not "legally unreasonable". 2. It is also illogical to suggest that the availability of aerial shooting under the plan without expressing a preference for other control methods means that breaches of the Prevention of Cruelty to Animals Act are "likely" (Ground 4). The plan acknowledges that Act and is consistent with it. The plaintiff adduces no direct evidence of any cruelty or adverse animal welfare outcome and the evidence from the RSPCA, which has been observing and evaluating the aerial culling operations, is that they are consistent with the obligations under the Act. Ground 2 1. Ground 2 of the amended summons proceeds upon an interpretation of the plan which assumes that an immediate floor on the horse population in the park of 3,000 was imposed. That interpretation is contrary to the express terms of the plan which sets a population goal of 3,000 horses by 30 June 2027 only. 2. The plaintiff relies upon "expert" evidence in the form of the AirborneLogic report where the "expert" is unidentified (apart from the corporate entity writing the report), and the statistical basis for the opinion is unreliable. It asserts that the report suggests that the survey figures on which the defendants are acting may be inflated by approximately 400%. 3. Taking the report at its highest, it is unreliable for a number of reasons: (a) There is no scientific basis disclosed for the selection of the 21,200 hectare project area (equating to 212 square kilometres). In particular, there is no survey design explaining why that area was chosen; (b) The project area covers only about 3% of the park which is too small a sample fraction to generate reliable population estimates; (c) There was only one fly over conducted of the target area; (d) The report used machine learning, the reliability of which is unknown. The report acknowledges that machine learning is a "rapidly evolving field" and that there was "no comparable horse data publicly available". The report acknowledges that the machine learning model failed to detect all of the horses in the project area. It states that machine-learning capability has "shown promising results" but will need further work to "refine and develop"; (e) There is a lack of clarity in the body of the report as to how the adopted machine learning model was selected or determined to be the most reliable of the available models; (f) The automated results are described as being of "relatively low precision" (in that they are said to have returned a "relatively high" "false positive" rate of horses). These false positives had to be removed manually; (g) The report does not purport to identify every horse in the target area and does not estimate the number of horses that it has not detected. It does not represent that the true population of the horses in the target area was 569. 1. The central claim from the report is that there may be fewer horses in the park than was estimated by the NPWS 2023 survey. This is based on reliance on the NPWS 2023 survey that provided an average density for the 122,900-hectare Northern Retention Block of about 10 horses per sq km. The plaintiff contends therefore that it should have found about 2,202 horses over the 212 sq kms it surveyed. It infers that as it found 569 horses, the NPWS survey results may be erroneous to the extent of about 400%. This flows to the suggestion that the minimum number of 12,797 horses by NPWS October 2023 survey should be as low as 3,298. 2. The methodology used by the plaintiff to draw conclusions from that report is invalid. The numbers already removed from the park prove this hypothesis has no basis. In any event, it is not valid to apply the average density for the Northern Retention Block to the much smaller area chosen by AirborneLogic in order to extrapolate a total number for either the block or the whole park. The NPWS average was not intended to be used in that manner and cannot be used in that manner. In the defendant's submission, the counting methodology used is patently invalid on the face of the report. 3. The results of the NPWS 2023 Survey were considered credible when reviewed independently by the CSIRO. In addition, the methodology employed in that survey, distance sampling, is considered by independent experts from the University of Canberra and from the Queensland Department of Agriculture, Fisheries and Forestry as "the most appropriate method for estimating the population and density of wild horses in" the park. 4. There is no direct evidence adduced by the plaintiff of any risk of the horse population falling below 3,000 horses. Moreover, the NPWS has proffered an undertaking pending the determination of these proceedings to remove only a further 811 horses from the northern retention zone (which has taken place), leaving over 3,000 horses in that zone alone. 5. Ground 2 also proceeds on the misapprehension that acting "contrary to law" constitutes "jurisdictional error".

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2024

Kosciuszko Wild Horse Heritage Act 2018(NSW)

National Parks and Wildlife Act 1974(NSW)ss 12, 73B, 81, 193

(2008) 162 LGERA 154

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