South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales

Land and Environment Court (NSW)|2024-04-15|Before: Pritchard J, Pepper J

Introduction and procedural background

The detailed background to these proceedings is set out at [1]-[36] of the Court's judgment in South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales [2024] NSWLEC 7 (the primary judgment).
In summary, by summons filed on 15 January 2024, the applicant, South East Forest Rescue Incorporated (SEFR), commenced Class 4 civil enforcement proceedings seeking that the respondent, Forestry Corporation of New South Wales (FCNSW), be restrained from conducting any forestry operation as defined in Protocol 39 to the Coastal Integrated Forestry Operations Approval dated 16 November 2018 (the CIFOA), unless "broad area habitat searches" are conducted in a manner that includes particular searches for "nest, roost or den trees" required by condition 57 of the CIFOA.
By notice of motion also filed 15 January 2024, SEFR sought interlocutory relief restraining the respondent from conducting any forestry operation as defined in Protocol 39 to the CIFOA in 23 compartments in 7 State forests, or alternatively in 7 compartments in 7 State forests, unless certain surveys were undertaken (the notice of motion).
On Wednesday, 17 January 2024, the notice of motion seeking interlocutory relief came before Justice Pepper as duty judge for mention. On that occasion, her Honour listed the notice of motion for hearing on 23 January 2024, and noted a voluntary temporary inter partes undertaking given by FCNSW to SEFR to suspend forestry operations in the following State forest compartments until 4:00pm on 23 January 2024: a. Compartment 41 and 43, Bulga State Forest; b. Compartment 34, 35, 36, 37 and 39, Clouds Creek State Forest; c. Compartment 485 and 486, Currowan State Forest; d Compartment 13, Moonpar State Forest; e. Compartment 208, 209 and 210, Shallow Crossing State Forest; f. Compartment 228, 232 and 233, Timbillica State Forest; and g. Compartment 41, Styx River State Forest.

Issues

The issues for determination are: 1. whether determination of the question of costs should be deferred to after the Court of Appeal hears and determines the appeal; and 2. whether the proceedings in this Court can be characterised as proceedings brought in the public interest, and hence the costs provision in r 4.2(1) of the Land and Environment Court Rules 2007 (NSW) (LEC Rules) applies so that the Court would not make an order as to costs.

Relevant legislation

Section 98(1) and (2) of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) relevantly provide in relation to the Court's powers as to costs: 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act - (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.
Rule 1.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides as follows: 1.7 Local rules that prevail over these rules The rules of court specified in Schedule 2 prevail over these rules.
The local rules specified in Schedule 2 to the UCPR include all rules in all Parts of the LEC Rules.
Rule 42.1 of the UCPR provides as follows: 42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.
Rule 4.2(1) of the LEC Rules provides as follows in relation to costs for proceedings brought in the public interest: 4.2 Proceedings brought in the public interest (1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.
Section 253 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) provides as follows in relation to the restraint of breaches of, inter alia, an Act that is causing or likely to cause harm the environment: 253 Restraint of breaches of an Act or statutory rules that harm the environment (1) Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of any other Act, or any statutory rule under any other Act, if the breach (or the threatened or apprehended breach) is causing or is likely to cause harm to the environment. Note - Statutory rule is defined in the Interpretation Act 1987. (2) Any such proceedings may be brought whether or not any right of that person has been or may be infringed by or as a consequence of the breach (or the threatened or apprehended breach). (3) A person (other than the EPA or a member of the staff of the EPA) who brings any such proceedings is required to give a copy of the application to the EPA as soon as practicable after the application is made. The EPA is entitled to become a party to those proceedings. (4) If the Court is satisfied that a breach, or a threatened or apprehended breach, will, unless restrained by order of the Court, be committed or be likely to be committed, it may make such orders as it thinks fit to restrain the breach or other conduct of the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed. (5) Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence.
Section 69SB of the Forestry Act provides as follows in relation to the enforcement functions of the EPA: 69SB Enforcement functions of EPA (1) The Environment Protection Authority has the function of monitoring the carrying out of forestry operations to which this Part applies and the function of enforcing compliance with the requirements of integrated forestry operations approvals. …
Section 69ZA of the Forestry Act provides as follows in relation to the application of statutory provisions relating to proceedings by third parties: 69ZA Application of statutory provisions relating to proceedings by third parties (1) This section applies to the following statutory provisions - (a) section 252 or 253 of the Protection of the Environment Operations Act 1997, (b) a provision of an Act that gives any person a right to institute proceedings in a court to remedy or restrain a breach (or a threatened or apprehended breach) of the Act or an instrument made under the Act, whether or not any right of the person has been or may be infringed by or as a consequence of that breach, (c) section 219 of the Protection of the Environment Operations Act 1997. (2) Proceedings may not be brought under a statutory provision to which this section applies if the breach (or threatened or apprehended breach) to which the proceedings relate is as follows - (a) a breach of this Part (including a breach of any forest agreement), (b) a breach of an integrated forestry operations approval, (c) a breach of an Act or law that arises because any defence provided by an integrated forestry operations approval is not available as a result of a breach of the approval, (d) a breach of the Act that includes the statutory provision (including a breach of an instrument made under that Act) if the breach relates to forestry operations to which an integrated forestry operations approval applies. (3) This section does not apply to any proceedings brought by - (a) a Minister, or (b) the Environment Protection Authority or a member of the staff of the Authority, or (c) in the case of the provision of an Act referred to in subsection (1)(b) - a government agency or any government official engaged in the execution or administration of the Act.

Whether proceedings can be characterised as public interest litigation, and the three step approach articulated in Caroona Coal Action Group

In Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [8] (Engadine), Lloyd J at [15] said as follows in relation to whether proceedings can be characterised as public interest litigation: 15. There are several matters that may be considered in determining whether the proceedings can be characterised as public interest litigation. These may conveniently be summarised as follows: [a] The public interest served by the litigation: Darlinghurst Residents' Association v Elarossa Investments Pty Ltd (No. 3) (1992) 75 LGRA 214 at 215; Liverpool City Council v Roads and Traffic Authority (No. 2) (1992) LGRA 210. [b] Whether that interest is confined to a relatively small number of members from the group or association in the immediate vicinity of the development, concerned with their own private amenity; or whether the interest is wider, involving a significant number of members of the public and concern for a wider and significant geographic area: Darlinghurst Residents' Association at 215; Oshlack at 80-81. [c] Whether the applicant sought to enforce public law obligations: Oshlack at 80 [20]. [d] Whether the prime motivation of the litigation is to uphold the public interest and the rule of law: Oshlack at 80 [20]. [e] Whether the applicant has no pecuniary interest in the outcome of the proceedings: Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 at 246.
In Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited (No 3) [9] (Caroona Coal Action Group), Preston CJ of LEC at [13]-[19] set out the following three step approach in determining whether to depart from the usual costs rule in unsuccessful public interest litigation (emphasis added): 13 What principles or guidelines have courts formulated for exercising the costs discretion in public interest litigation which has been unsuccessful? A review of the decisions on costs reveals that courts have used, in effect, a three step approach in determining whether to depart from the usual costs rule: first, can the litigation be characterised as having been brought in the public interest?; secondly, if so, is there "something more" than the mere characterisation of the litigation as being brought in the public interest?; and thirdly, are there any countervailing circumstances, including relating to the conduct of the applicant, which speak against departure from the usual costs rule? … 15 The first step sets the threshold. If the litigation cannot be characterised as being brought in the public interest, then obviously the public interest cannot be a circumstance justifying departure from the usual costs rule and any justification will need to be found in some other circumstance. If, however, the litigation can be characterised as being brought in the public interest, it becomes necessary to examine more closely the nature, extent and other features of the public interest involved in the particular litigation to ascertain whether they provide justification in the circumstances of the case for departure from the usual costs rule. 16 This closer examination is required because the public interest is so broad that much litigation, in public law in particular, may be able to be characterised as being brought in the public interest. Characterisation of litigation as being brought in the public interest is too crude a criterion to enable the court to differentiate between the potentially large pool of matters that could be characterised as being brought in the public interest and identify those special matters where departure from the usual costs rule is justified. 17 Hence, courts have held that something more than mere characterisation of the litigation as being brought in the public interest is required. This is the second step in the process. 18 Although the litigation may be able to be characterised as being in the public interest (the first step) and the nature, extent and features of the public interest involved and other circumstances of the litigation may ground justification for departure from the usual costs rule (the second step), the court retains a discretion whether to do so. The court will look to all the circumstances and the justice of the case. This entails consideration of countervailing factors that speak against departure from the usual costs rule. This is the third step in the process. 19 These countervailing factors may relate to, and diminish the weight of, the public interest considerations, and may also relate to the conduct of the applicant. Courts have observed that the public interest applicant does not have a special or privileged status and should be held to the same standards of conduct as any other party; they are not granted an immunity from costs or a "free kick" in litigation: Oshlack v Richmond River Council at [134] per Kirby J; South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) (1998) 72 ALJR 1008; 101 LGERA 114 at [5] per Kirby J.
In May v Northern Beaches Council and Anor (No 3), [10] also a matter in the Court's Class 4 jurisdiction, Robson J applied the chief judge's three step approach even though that approach was "developed in relation to a different costs regime" [11] (being proceedings in the Court's Class 8 jurisdiction), and observed that the three step approach is "generally applied by the Court". [12]
In relation to the first step in the three step approach, in Caroona Coal Action Group the chief judge at [27] referred to "the need for courts to ensure access to justice in environmental matters". At [36], the chief judge said as follows: 36. … one justification for departure from the usual costs rule in litigation brought by citizens seeking to enforce public law to ensure environmental protection is to provide access to justice for these citizens and to ensure this aspect of the public interest is represented in the courts. This justification makes it reasonable for a court to examine the litigation concerned to ascertain whether it can be characterised as having been brought for the relevant, unrepresented aspect of the public interest that provides the justification for departure from the usual costs rule. It is not any aspect of the public interest that is relevant, only that aspect involving the enforcement of public law which risks being unrepresented by reason of costs acting as a barrier to access to justice.
At [38], the chief judge referred to the remarks of Lloyd J in Engadine at [15], [13] and said as follows (emphasis added): 38. A review of the costs decisions reveals that courts have referred to a variety of considerations to determine whether litigation can properly be characterised as having been brought in the public interest. Lloyd J in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 at [15] summarised five considerations…
At [41] the chief judge said: 41. …the considerations should not be seen or applied as a code for characterisation of litigation as being brought in the public interest. They are merely considerations which, if answered in a particular way, may indicate that the proceedings could be characterised as being brought in the public interest. Other considerations may also be relevant to be considered.
And at [43], the chief judge said: 43. … it is not necessary in order to characterise litigation as being brought in the public interest to answer each of these considerations in a particular way. For example, in consideration (b), the fact that the public interest is confined to a small section of the community does not necessarily deny characterisation of the litigation as being brought in the public interest. As Jacobs J noted in Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 487, "the smallness of the section of the public may affect the quantity or weight of the public interest … [but] it does not affect the quality of that interest."
In Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (No 2) [14] (Mullaley Gas and Pipeline Accord) at [11]-[12], the chief judge said as follows in relation to the considerations and factors in the characterisation of litigation as having been brought in the public interest: 11. These considerations and factors should not be regarded as "fixed criteria" for the characterisation of litigation as having been brought in the public interest: Caroona Coal at [41]; Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 295; [2019] NSWCA 216 at [83]. Rather, they are considerations or factors which, if answered in a particular way, may indicate that the proceedings have been brought in the public interest. Other considerations may also be relevant to be considered: Caroona Coal at [41]. 12. Not all of these considerations or factors need to be answered in a particular way in order to characterise the proceedings as having been brought in the public interest: Caroona Coal at [46]. An example given in Caroona Coal at [43] is the fact that the public interest might be confined to a small section of the community does not necessarily deny characterisation of the proceedings as having been brought in the public interest. Another example in Caroona Coal at [44] and [45] is the fact that the proceedings might involve some private interest, such as a pecuniary interest in the outcome of the litigation, does not necessarily deny characterisation of the proceedings as having been brought in the public interest. Litigation can still be of a public interest character, notwithstanding it might also advance some private interests.
In relation to the second step in the three step approach, namely, whether there is "something more" than the mere characterisation of litigation as being brought in the public interest, in Caroona Coal Action Group the chief judge said at [47] as follows (emphasis added): 47. It is perhaps because of the nebulous and broad nature of the concept of public interest that courts have suggested that "something more" may be required than the mere characterisation of the litigation as being in the public interest: Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 at 244 (Stein J) and noted in Oshlack v Richmond River Council (HCA) at [20], [49]; Anderson v NSW Minister for Planning (No 2) at [8]; Minister for Planning v Walker (No 2) at [9]; Hastings Point Progress Association Inc v Tweed Shire Council (No 3) at [27], [35], [47] and [54]. However, the statement that "something more" is required has been interpreted in different ways. One interpretation has been that the "something more", the additional circumstance or factor, must be unrelated to the nature, extent or other features of the public interest involved in the litigation. This interpretation is incorrect. The circumstance or factor can relate to the public interest in the litigation. A brief summary of the background to Stein J's statement that "something more" is required in Oshlack v Richmond River Shire Council may help explain why this is so.
And at [60], the chief judge summarised his conclusions in relation to the requirement of "something more" as follows (citations omitted): [15] 60. With this background to the requirement of "something more", what circumstances or factors have the courts identified that, when coupled with the characterisation of the litigation as being brought in the public interest, justify departure from the usual costs rule? The circumstances identified fall into at least five categories: (a) the litigation raises one or more novel issues of general importance… (b) the litigation has contributed, in a material way, to the proper understanding, development or administration of the law… (c) where the litigation is brought to protect the environment or some component of it, the environment or component is of significant value and importance … (d) the litigation affects a significant section of the public … and (e) there was no financial gain for the applicant in bringing the proceedings …
In relation to the third step in the three step approach, (namely, consideration of any countervailing circumstances), in Caroona Coal Action Group at [61] the chief judge identified countervailing considerations, including the following (citations omitted): 61. Even where courts have found or assumed that the litigation could be characterised as public interest litigation, they may decline to depart from the usual costs rule because of countervailing considerations. Some of these can be seen to be the converse of the public interest considerations earlier referred to, but others are independent. Countervailing considerations identified in the cases include: (a) the applicant is seeking to vindicate rights of a commercial character and stands to benefit from the litigation … (b) where the applicant is an incorporated association, the private interests of members of the association would be affected, legally or financially, by the outcome of the litigation … (c) the applicant is supported financially by persons or bodies who would benefit from, or would have their legal or financial interests affected by, the outcome of the litigation … (d) the narrowness of the question of public interest raised, such as only involving a discrete point of interpretation without broad ramifications … (e) the applicant "unreasonably pursues or persists with points which have no merit" … and (f) there is disentitling conduct of the applicant, such as impropriety or unreasonableness in the conduct of the litigation …

The Court's discretion on interlocutory costs applications and proceedings brought in the public interest

In May v Northern Beaches, Robson J at [10]-[15] said as follows in relation to the Court's discretion on interlocutory costs applications and proceedings brought in the public interest: 10. The applicable principles on interlocutory costs applications are well established. The Court has a wide discretion under s 98 of the Civil Procedure Act 2005 (NSW) ('Civil Procedure Act') to make orders as to costs of a disputed notice of motion, including in relation to the basis upon which those costs are to be assessed … 11. Notwithstanding the Court's broad discretion, as a general rule, costs follow the event and are assessed on the ordinary basis unless the Court orders otherwise: rr 42.1, 42.2 of the UCPR. 12. The application of this general rule is however subject to r 4.2(1) of the Land and Environment Court Rules 2007 (NSW) ('LEC Rules') which applies to proceedings in Class 4 of the Court's jurisdiction by operation of r 4.1… 13. By combined operation of s 11 of the Civil Procedure Act, r 1.7 and Sch 2 of the UCPR, the LEC Rules are to prevail over the general rule if it appears that it would be more appropriate for some other order to be made as to the whole or any part of the costs: Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216; (2019) 372 ALR 695 at [90] (Basten JA). 14. To avail itself of r 4.2(1) of the LEC Rules and displace the presumptive rule that costs follow the event, a party must however show that there is something out of the ordinary in the particular case that justifies such departure: Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157 at [18] (Young JA, McColl JA agreeing). 15. In applying the above principles, the Court must seek to compensate the person in whose favour the costs order is made, rather than punish the person against whom it is made: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67] (McHugh J) ('Oshlack'); Ohn v Walton (1995) 36 NSWLR 77 at 79.

SEFR's submissions

SEFR's primary submission was that determination of the question of the costs of the proceedings before me seeking interlocutory relief be stayed until the Court of Appeal delivers its decision on appeal (which I understand to be listed on 16 April 2024). SEFR submitted that should its appeal against dismissal of the proceedings fail, the appropriate disposition of the question of costs of the proceedings before me would be that each party bear its own costs.
SEFR drew attention to r 4.2(1) of the LEC Rules which provides that the Court may decide not to make an order for the payment of costs against an unsuccessful applicant in the proceedings if it is satisfied that the proceedings have been brought in the public interest. SEFR also referred to the criteria for determining whether proceedings have been brought in the public interest set out by Pepper J in Boronia Park [16] where her Honour referred to Engadine at [15] and Caroona Coal Action Group at [38]-[46].
Although r 4.2(1) was not considered in Caroona Coal Action Group, subsequent cases have applied Caroona Coal Action Group in determining the exercise of discretion under that rule. [17]
SEFR submitted that the proceedings here satisfy each of the five "criteria" (or categories of circumstances) identified in Caroona Coal Action Group as constituting "something more", noting that it is enough for one of those criteria to be met: 1. the litigation raised one or more novel issues of general importance; 2. the litigation contributed in a material way to the "proper understanding, development of administration of the law"; 3. the litigation was brought to protect "an environment and a component of the environment that is of significant value and importance"; 4. the litigation affects a significant section of the public, as all Australians have an interest in preventing the extinction of native species; and 5. there was no financial gain for the applicant in bringing the proceedings.
Further, the proceedings were submitted to exhibit none of the six countervailing considerations referred to by the chief judge in Caroona Coal Action Group at [61], namely: 1. SEFR was not seeking to vindicate rights of a commercial character and did not stand to benefit in a pecuniary sense from the litigation; 2. SEFR's members' private interests would not be affected legally or financially by the outcome of the litigation; 3. SEFR was not supported financially by persons or bodies who would be so affected; 4. the question of public interest was not narrow; 5. SEFR did not unreasonably pursue or persist with points which had no merit; and 6. there was no disentitling conduct.
SEFR submitted, that if the Court is not inclined to reserve judgment on the question of costs pending the determination of the appeal, the "[p]reservation of den trees and protection of gliders and their habitat" are "quintessentially public interest matters". The requirement for "something more" is satisfied, and there are no countervailing considerations.

FCNSW's submissions

FCNSW submitted that the Court would deal with the question of costs now, and not defer it for some "unknown period of time" until the Court of Appeal determines SEFR's appeal. Further, the Court would not depart from the ordinary costs rule, and would order SEFR to pay FCNSW's costs on a party/party basis.
FCNSW submitted that SEFR's submissions provided no, or at least no adequate, support for deferring the Court's determination of the question of costs. Deferring the question of costs would "fragment the proceedings and only leave open the possibility of a further appeal". Such an approach was to be strongly discouraged. [18]
The ordinary course, it was submitted, is that costs follow the event; and the applicant did not raise any matters relevant to the exercise of the costs discretion other than the operation of r 4.2(1). As identified by Preston CJ of LEC in Caroona Coal Action Group, the mere identification of proceedings having been taken in the public interest is not enough. The Full Court of the Supreme Court of Western Australia in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [19] said that "great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion in respect to costs in an unprincipled, haphazard and unjudicial manner". [20]

First step in Caroona Coal Action Group: whether the proceedings can be characterised as having been brought in the public interest

In relation to the first step of the three steps identified by the chief judge in Caroona Coal Action Group, FCNSW submitted as follows: 1. A significant difficulty for the applicant relates to the Court's finding of an absence of standing, such finding, although not determinative, weighing heavily against the applicant. 2. There was no evidence to support SEFR's submission that "the public interest served in this litigation is the interest in preservation of biodiversity and prevention of threatened species being driven to extinction". The evidence was submitted to be the contrary, the Court having noted at [39] of the primary judgment that SEFR was formed "for the purpose of ending native forest logging in New South Wales". Although variously expressed by the applicant, the subject matter of the proceedings was the enforcement of the CIFOA. In its most expansive interpretation, the subject matter of the proceedings concerned a requirement for the carrying out of "rigorous surveys" during broad area habitat searches for the three species of gliders (the Southern Greater Glider, the Yellow-bellied Glider and the Squirrel Glider). 3. It was in the knowledge of the limitation in s 69ZA of the Forestry Act that the applicant "brought its very narrow, and focussed, proceedings challenging compliance with the conditions of the CIFOA for the carrying out of broad area habitat". 4. SEFR could not "get through the first step" (in the three step approach), and the Court "would not be satisfied that the proceedings were brought in the public interest". There was "no evidence to suggest a wider, involving all Australians and a very broad geographical area, interest in compliance with condition 57 of the CIFOA". 5. The Court would not be satisfied that the prime motivation of the litigation was to uphold the public interest and the rule of law, rather the prime motivation was to end native forest logging in New South Wales. 6. If the applicant relies upon the "criteria" that it has no pecuniary interest in the outcome of the proceedings, there should be some evidence to that effect, and there was none.

Second step in Caroona Coal Action Group: "something more"

In relation to the second step in Caroona Coal Action Group, FCNSW noted the chief judge's reasons at [47] where his Honour referred to the nature of the concept of public interest as "nebulous and broad", and submitted that the mere recitation of the criteria in Caroona Coal Action Group in relation to "something more", and positive assertions of satisfaction, are not capable of satisfying the Court of "something more." In particular: 1. The Court's conclusion in relation to the availability of common law standing is not enough to demonstrate "something more". 2. SEFR's submissions incorrectly characterise the proceedings. Proceedings brought to protect the environment from harm pursuant to s 253 of the POEO Act were not available because of the operation of s 69ZA of the Forestry Act. Of necessity, the proceedings did not seek to prevent the environment from harm, rather they focussed upon the alleged failure to properly, or adequately, search for den trees. 3. Even if SEFR were able to speak on behalf of "all Australians", which it cannot, there was nothing to support a submission that a significant section of the public has an interest in the real subject matter of the proceedings, being the enforcement of the conditions of the CIFOA.

Third step in Caroona Coal Action Group: countervailing considerations

In relation to the third step in Caroona Coal Action Group, namely countervailing considerations, FCNSW emphasised two considerations as relevant: 1. Contrary to SEFR's submissions, "the public interest, properly construed, is narrow". 2. In relation to disentitling conduct, whilst there was no suggestion of impropriety on the part of SEFR, that "is not necessary" to establish disentitling conduct. SEFR elected to bring "very narrow focused proceedings because of the deliberate legislative impediment to the Applicant seeking 'to protect the environment from harm'" (s 69ZA of the Forestry Act). SEFR having "elected that course, and failed", it was submitted, "sounds heavily in the exercise of the Court's costs discretion".

SEFR's submissions in reply

In reply, SEFR submitted that deferred determination of costs would be the "economical course", there being "no risk that the remaining final stage of the proceeding will be fragmented". Further, there would be "significant procedural complications if costs were determined before the Court of Appeal hands down its decision" on the appeal. SEFR would then seek leave from the Court of Appeal to amend its notice of appeal to add a further order setting aside the costs order made by this Court. This would be "avoided by deferring the hearing on the question of costs".
In relation to whether the proceedings were brought in the public interest, SEFR referred to the Court's finding at [136(2)] of the primary judgment that the litigation concerns the protection of Southern Greater Gliders. FCNSW's contention that the litigation was brought solely to enforce the CIFOA, rather than to protect the Southern Greater Glider, was submitted to be inconsistent with the Court's findings.
SEFR submitted that that the public interest served by the proceedings is not concerned with the private amenity of a relatively small number of members of a group; it is wider and involves a significant number of members of the public and concern for a wider geographic area: 1. the preservation of threatened species in general, and the Southern Greater Glider in particular, is the subject of federal legislation (the Environment Protection and Biodiversity Conservation Act 1999 (Cth)) and State legislation (Biodiversity Conservation Act 2016 (NSW) (Biodiversity Conservation Act)) and therefore a matter of interest to the broad Australian public; and 2. the geographic area the subject of the litigation is the northern and southern CIFOA regions, almost the entirety of New South Wales' coastal forest area.
It was submitted to be self-evident that the applicant, SEFR, seeks to enforce public law obligations, the Court having found in the primary judgment at [128] that the applicant was bringing proceedings seeking to enforce a public right or prevent a public wrong, the Court being required to decide whether the applicant had standing at common law to do so.
In relation to the "prime motivation of the litigation", SEFR submitted that it is "important to note that it is the motivation of the litigation and not the litigant that is the focus of the enquiry." The Court cannot know and is not called upon to enquire into what motivates a litigant to commence proceedings: individual plaintiffs may be driven by "emotional factors of different kinds"; corporations may be driven by a variety of business considerations; and "various psychological drivers will motivate the committee members of a not-for-profit incorporated association".
Further, the "respondent's speculations as to the applicant's motivations [were] irrelevant", "the motivation of litigation [being] easy to determine"; it being "the outcome that is expressly sought". Generally, the outcome sought by enforcement proceedings brought by parties with the requisite special interest, is "securing observance by statutory authorities of the limitations upon their activities which the legislature has imposed". In this case, SEFR submitted that the motivation of the litigation "was in a broad sense to procure the public interest …, and in a narrow sense to secure compliance by the respondent with conditions 57 and 76 of the CIFOA".
The "prime motivation of this litigation" was submitted to be "to uphold the public interest and the rule of law". Out of "an abundance of caution", SEFR "adduced direct affidavit evidence establishing that it has no pecuniary interest in the outcome of the proceedings": affidavit of Mr Scott Daines dated 28 March 2024 (Mr Daines being public officer and president of SEFR). SEFR submitted that the Court could "readily infer" from the substantial material before it as to the applicant's objectives, history and activities that it brought the proceedings in order to "further the objectives set out in its vision statement". [21] In particular, the Court's finding that SEFR lacked standing was not an impediment to the Court finding that it has a "special interest"; there being "no such connection" between the question of standing and the character of the litigation.
Further, SEFR submitted that s 69ZA of the Forestry Act did not prevent it bringing the proceedings to restrain harm to the environment, referring to the Court's finding at [128] of the primary judgment that s 69ZA "does not have the effect of ousting common law standing to bring proceedings seeking to enforce compliance with the requirements of an integrated forestry operations approval to which Part 5B of the Forestry Act applies", and that a "private person or entity with a special interest in the subject matter of the proceedings seeking to enforce a public right or prevent a public wrong may have standing at common law to bring proceedings to enforce compliance with an integrated forestry operations approval."
Finally, SEFR submitted that if the matter is to be decided before the Court of Appeal determines the appeal, the Court should exercise its discretion under r 4.2(1) of the LEC Rules and make no costs order against the applicant.

Outcome

I have determined as follows: 1. It is appropriate that the Court deal presently with the costs of the proceedings brought by SEFR seeking interlocutory relief restraining FCNSW from conducting forestry operations in specified compartments of specified State forests, and not defer determination of the question of costs pending the disposition by the Court of Appeal of the applicant's appeal. I accept FCNSW's submission that SEFR has advanced no cogent reason for deferring determination of the question of costs. 2. In relation to r 4.2(1) of the LEC Rules and the question of whether the Court is satisfied that the proceedings were brought in the public interest, I am so satisfied. Although the three step approach articulated by the chief judge in Caroona Coal Action Group "should not be regarded as "fixed criteria" … the criteria do assist in characterising the nature of the proceedings and the purpose for which the proceedings have been brought". [22] In relation to the first step, FCNSW submitted that SEFR has a "significant difficulty" in proving the public interest served by the litigation as in the primary judgment I did not find that SEFR had standing. I do not consider that the common law test for standing and the test of whether litigation can be characterised as having been brought in the public interest within r 4.2(1) of the LEC Rules are the same. The Court's finding in the primary judgment that SEFR did not satisfy the common law test for standing is not determinative of whether the proceedings were brought in the public interest. The common law test for standing concerns whether SEFR had a "sufficient special interest" [23] in the subject matter of the proceedings, and not whether the proceedings have been brought in the public interest. The former is a narrower question. However, I do not accept SEFR's submission that there is "no such connection" between SEFR's special interest in the subject matter of the proceedings and its standing, and whether the proceedings were brought in the public interest. As the chief judge said in Caroona Coal Action Group at [36]: … one justification for departure from the usual costs rule in litigation brought by citizens seeking to enforce public law to ensure environmental protection is to provide access to justice for these citizens and to ensure this aspect of the public interest is represented in the courts … It is not any aspect of the public interest that is relevant, only that aspect involving the enforcement of public law which risks being unrepresented by reasons of costs acting as a barrier to access to justice. Notwithstanding the enforcement functions of the EPA under s 69SB of the Forestry Act, I have found that "properly construed s 69ZA does not have the effect of ousting common law standing to bring proceedings seeking to enforce compliance with the requirements of an integrated forestry operations approval to which Part 5B of the Forestry Act applies". [24] Addressing the five matters identified by Lloyd J in Engadine at [15], I find that: 1. The public interest served by the litigation is the protection of Southern Greater Gliders and their habitat in the native forests in New South Wales, including the preservation of den trees, by enforcing conditions 57 and 76 of the CIFOA. 2. That public interest is not confined to the private amenity of SEFR's six members. Rather, it extends to a considerably greater number of members of the public, over a significantly more extensive geographic area. This is because as noted at [4] in the primary judgment, pursuant to Biodiversity Conservation Act the Southern Greater Glider is "currently listed as an endangered species" in New South Wales. In the primary judgment at [136(1)], I found that the compartments the subject of the relief sought in the amended notice of motion are in three FCNSW sub-regions: Lower North East subregion, Upper North East subregion and Southern subregion. 3. SEFR has sought to enforce public law obligations. The proceedings sought civil enforcement of FCNSW's compliance with conditions 57 and 76 of the CIFOA to which Part 5B of the Forestry Act applies. 4. The prime motivation of the litigation was to uphold the public interest in the protection of Southern Greater Gliders and their habitat, in particular State forest compartments in the native forests of New South Wales by seeking compliance with conditions 57 and 76 of the CIFOA. I find that the prime motivation of the litigation was to uphold the public interest, and the rule of law. 5. SEFR had no pecuniary interest in the outcome of the proceedings, and "it did not and does not stand to gain any financial or economic reward from the success (or failure) of the proceedings", as deposed to by Mr Daines in his affidavit dated 28 March 2024. 1. In relation to the second step in Caroona Coal Action Group, and the requirement of "something more", addressing the five categories of circumstances identified by the chief judge at [60], I am satisfied that: 1. The litigation raised one or more novel issues of general importance, namely the question of whether there exists standing at common law to bring civil enforcement proceedings in this Court to enforce compliance with the requirements of integrated forestry approvals: [107]-[128] of the primary judgment. [25] 2. The litigation has contributed, in a material way, to the development of the law, namely whether as held at [128] of the primary judgment that "on its proper construction, s 69ZA does not have the effect of ousting common law standing to bring proceedings seeking to enforce compliance with the requirements of an integrated forestry operations approval to which Part 5B of the Forestry Act applies. A private person or entity with a special interest in the subject matter of the proceedings seeking to enforce a public right or prevent a public wrong may have standing at common law to bring proceedings to enforce compliance with an integrated forestry operations approval". 3. The litigation was brought to protect the environment or some component of it, being the Southern Greater Glider and their habitat in particular State forest compartments in the native forests of New South Wales. 4. The litigation affects a significant section of the public. SEFR submitted that this is satisfied because "all Australians have an interest in preventing the extinction of native species". I do not accept this submission which is addressed at a high level of generality. SEFR cannot speak on behalf of "all Australians". However, I find that the prevention of the extinction of the Southern Greater Glider which is currently listed as endangered under the Biodiversity Conservation Act, [26] by enforcing conditions 57 and 76 of the CIFOA, concerns a significant section of the public. 5. There was no financial gain for SEFR in bringing the proceedings, as deposed to by Mr Daines, the public officer and president of SEFR. 1. In relation to the six countervailing circumstances identified by the chief judge in Caroona Coal Action Group at [61], I am satisfied that: 1. SEFR was not seeking to vindicate rights of a commercial character and does not stand to benefit from the litigation. 2. SEFR's six members' private interests would not be affected legally or financially by the outcome of the litigation. 3. There is no evidence that the applicant is supported financially by persons or bodies who would benefit from, or would have their legal or financial interests affected by, the outcome of the litigation. 4. The question of the public interest was not narrow. Whilst FCNSW contends that SEFR brought a "very narrow focused proceedings because of the deliberate legislative impediment … [in s 69ZA of the Forestry Act]", I find that the public interest was not narrow as the proceedings sought to protect Southern Greater Gliders and their habitat in the native forests of New South Wales, including the preservation of den trees, by enforcing conditions 57 and 76 of the CIFOA. 5. SEFR did not unreasonably pursue or persist with points which had no merit. In the primary judgment at [106], I was satisfied that "it is appropriate to exercise the discretion … to decide the question of standing as a preliminary matter". And at [128], I was satisfied that "s 69ZA [of the Forestry Act] does not have the effect of ousting common law standing to bring proceedings seeking to enforce compliance with the requirements of an integrated forestry operations approval to which Part 5B of the Forestry Act applies". 6. There was no disentitling conduct such as impropriety or unreasonableness in the conduct of the litigation.
Accordingly, I will make no order as to costs of the proceedings in this Court.

Endnotes

Primary judgment at [140] and [176].
Primary judgment at [174].
Primary judgment at [176]. In North East Forest Alliance Incorporated (INC1601738) v Forestry Corporation of NSW (NEFA) at [131(2)], I held that the question of standing is to be determined by reference to the common law for s 69ZA of the Forestry Act in proceedings for judicial review.
Primary judgment at [167].
Primary judgment at [158].
Primary judgment at [177].
Primary judgment [161] and [177].
(2004) 126 LGERA 365; [2004] NSWLEC 434 (Lloyd J).
(2010) 173 LGERA 280; [2010] NSWLEC 59 at [38] (Preston CJ of LEC).
[2023] NSWLEC 72 (May v Northern Beaches) (Robson J).
May v Northern Beaches at [31].
May v Northern Beaches at [31].
Cited in May v Northern Beaches at [31]-[32] (Robson J), and David Goode v Gwydir Shire Council (No 2) [2020] NSWLEC 118 at [32] (Pain J).
[2021] NSWLEC 147 at [11] (Preston CJ of LEC).
See also Boronia Park Preservation Group v MSMG Developments Pty Ltd (2015) 209 LGERA 259; [2015] NSWLEC 112 (Boronia Park) at [58] (Pepper J).
Boronia Park at [53] (Pepper J).
For example, Mullaley Gas and Pipeline Accord (Preston CJ of LEC).
Narellan Franchise Pty Ltd v RBME Pty Ltd [2023] NSWCA 139 at [18] (Ward P, Leeming and Kirk JJA).
[1999] WASCA 55 at [11] (Kennedy, Wallwork and Murray JJ); cited in Caroona Coal Action Group at [12] (Preston CJ of LEC).
Caroona Coal Action Group at [12] (Preston CJ of LEC).
See primary judgment at [44]-[45].
Mullaley Gas and Pipeline Accord at [46] (Preston CJ of LEC).
See Bateman's Bay Local Aboriginal Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49 at [52] (Gaudron, Gummow and Kirby JJ).
Primary judgment at [128].
See NEFA at [131(2)].
Primary judgment at [4]. 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: 15 April 2024

South East Forest Rescue Incorporated INC9894030 (Applicant)

Forestry Corporation of New South Wales (Respondent)

The detailed background to these proceedings is set out at [1]-[36] of the Court's judgment in South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales [2024] NSWLEC 7 (the primary judgment).
In summary, by summons filed on 15 January 2024, the applicant, South East Forest Rescue Incorporated (SEFR), commenced Class 4 civil enforcement proceedings seeking that the respondent, Forestry Corporation of New South Wales (FCNSW), be restrained from conducting any forestry operation as defined in Protocol 39 to the Coastal Integrated Forestry Operations Approval dated 16 November 2018 (the CIFOA), unless "broad area habitat searches" are conducted in a manner that includes particular searches for "nest, roost or den trees" required by condition 57 of the CIFOA.
By notice of motion also filed 15 January 2024, SEFR sought interlocutory relief restraining the respondent from conducting any forestry operation as defined in Protocol 39 to the CIFOA in 23 compartments in 7 State forests, or alternatively in 7 compartments in 7 State forests, unless certain surveys were undertaken (the notice of motion).
On Wednesday, 17 January 2024, the notice of motion seeking interlocutory relief came before Justice Pepper as duty judge for mention. On that occasion, her Honour listed the notice of motion for hearing on 23 January 2024, and noted a voluntary temporary inter partes undertaking given by FCNSW to SEFR to suspend forestry operations in the following State forest compartments until 4:00pm on 23 January 2024:

a. Compartment 41 and 43, Bulga State Forest;

b. Compartment 34, 35, 36, 37 and 39, Clouds Creek State Forest;

c. Compartment 485 and 486, Currowan State Forest;

d Compartment 13, Moonpar State Forest;

e. Compartment 208, 209 and 210, Shallow Crossing State Forest;

f. Compartment 228, 232 and 233, Timbillica State Forest; and

g. Compartment 41, Styx River State Forest.

On Friday, 19 January 2024, SEFR served FCNSW with a proposed amended notice of motion removing some compartments identified in the notice of motion filed on 15 January 2024 as a result of it having been established that FCNSW's forestry operations in those compartments had concluded, and seeking to include additional State forest compartments in relation to which it sought interlocutory relief.
At the hearing of the notice of motion on Tuesday, 23 January 2024, I granted SEFR leave to rely on the proposed amended notice of motion to the extent that it removed compartments where the parties agreed that forestry operations were no longer being carried out, but not to add additional compartments in relation to which SEFR was permitted to seek interlocutory relief (the amended notice of motion). The compartments that remained, as at 23 January 2024, the subject of SEFR's amended notice of motion for interlocutory relief were as follows:

Compartments 208, 209 and 210, Shallow Crossing State Forest;

Compartments 31, 32, 33, 36, 38, 41 and 42, Styx River State Forest; and

Compartments 228, 232 and 233, Timbillica State Forest.

The compartments that remained, as at 23 January 2024, the subject of the alternative relief sought in the amended notice of motion were as follows:

Compartment 210, Shallow Crossing State Forest;

Compartment 41, Styx River State Forest; and

Compartment 232, Timbillica State Forest.

On 23 January 2024, I reserved judgment, with further submissions to be filed, and FCNSW extended its inter partes voluntary temporary undertaking dated 17 January 2024 until the delivery of judgment on the amended notice of motion.
As directed by the Court at the hearing on Wednesday, 24 January 2024, SEFR filed and served further submissions, and on Thursday, 25 January 2024, FCNSW filed and served further submissions.
On Monday, 29 January 2024, SEFR filed a further notice of motion seeking interlocutory relief in relation to an additional 19 compartments in 6 State forests, and an order for abridgment of service (the proposed third notice of motion). The proposed third notice of motion was listed for mention before me on Friday, 2 February 2024.
At the mention on Friday, 2 February 2024, Ms Sims appearing for SEFR made an application, not foreshadowed to the Court or FCNSW, seeking interlocutory relief in selected compartments where there were said to have been recent glider sightings, and in relation to which, it was submitted, SEFR could give evidence that harvesting was being conducted or was imminent. Mr Hemmings SC appearing for FCNSW confirmed that FCNSW declined to extend to these additional selected compartments the inter partes undertaking provided by FCNSW to SEFR on Tuesday, 23 January 2024.
I declined to grant the interlocutory relief sought orally from the Bar table at the mention on 2 February 2024, listed delivery of judgment on SEFR's amended notice of motion on Wednesday, 7 February 2024, and fixed the proposed third notice of motion for hearing on Thursday, 8 February 2024 following judgment on the amended notice of motion.
By judgment dated 7 February 2024, I found that SEFR did not have common law standing to bring the proceedings seeking to enforce compliance with the requirements of an integrated forestry operations approval to which Part 5B of the Forestry Act 2012 (NSW) (Forestry Act) applies, and dismissed SEFR's amended notice of motion filed 23 January 2024.[1]
In the exercise of the Court's discretion, I decided to determine presently (that is, as an anterior question) whether SEFR has standing to bring the proceedings commenced by way of its summons filed 15 January 2024, rather than to await determination of that question at final hearing.[2]
I held at [128] that, on its proper construction, s 69ZA of the Forestry Act does not have the effect of ousting common law standing to bring proceedings seeking to enforce compliance with the requirements of an integrated forestry operations approval to which Part 5B of the Forestry Act applies. However, I was not satisfied that SEFR had established, even on a prima facie basis, that it had a sufficient special interest to bring the proceedings to enforce conditions of the CIFOA.[3]
In relation to the balance of convenience, I attached some weight to SEFR's delay in seeking interlocutory relief in circumstances where a number of the forestry operations were already underway and completed, but attached greater weight, for the purpose of the interlocutory application, to expert evidence concerning irreparable harm.[4]
In relation to the question of a serious question to be tried, I found that the proceedings do not raise a serious question to be tried concerning the lawfulness of compliance by FCNSW with a requirement of the CIFOA,[5] or an arguable case.[6] I also found that the opinion of Associate Professor Wardell-Johnson upon whose expert report SEFR sought to rely concerns the scientific validity or reliability of the respondent's survey methodology, and not the question of the lawfulness of the respondent's compliance with the relevant condition of the CIFOA in relation to broad area habitat searches namely, condition 57.[7] Condition 57 provides:

57. Broad area habitat searches

57.1 A forestry operation (other than road maintenance) must not be conducted in any part of an operational area unless:

...

(b) a broad area habitat search has been undertaken in accordance with condition 57 of the approval in the patch that contains that part of the operational area; ...

(a) be carried out by a suitably qualified person;

(b) be carried out in, and within 100 metres of, the base net area of the operational area;

(c) look for, identify, and record the habitat features and species listed in Table 2 of this condition; and

(d) be conducted in accordance with condition 20.2 and 20.5 of Protocol 20: Pre-operational surveys.

57.3 All habitat features or species listed in Table 2 and identified under condition 57.2(c), or which were not identified under that condition but identified later during the carrying out of forestry operations, must be:

(a) protected in accordance with the requirements for that habitat feature or species in the approval and the protocols; and

(b) mapped in accordance with condition 117 of the approval.

Condition 76 of the CIFOA provides as follows in relation to nest, roost or den:

76. Nest, roost or den

76.1 An exclusion zone must be retained around each nest, roost or den as specified in Table 4.

FCNSW has sought its costs of the notices of motion seeking interlocutory relief in this Court. In submissions dated 8 February 2024, the respondent asked the Court to make a self-executing order that the applicant pay the respondent's costs on a party/party basis unless a motion seeking a different order was filed within 14 days of the making of the Court's final orders. SEFR did not file a notice of motion seeking its costs.
On 8 February 2024, I made the following orders:

1. The proceedings are dismissed.

2. The notice of motion filed 29 January 2024 [is] dismissed.

3. Costs of the proceeding are reserved.

On 22 February 2024, SEFR filed in the Court of Appeal a notice of motion seeking interlocutory orders in proceedings in which it seeks leave to appeal from the orders made by this Court on 7 February 2024 dismissing the amended notice of motion filed on 23 January 2024.
On 26 February 2024, SEFR filed in the Court of Appeal a notice of appeal pursuant to s 58 of the Land and Environment Court Act 1979 (NSW) against "Order 1 and Orders 3 - 7 of the Orders of Justice Pritchard made on 8 February 2024", being orders to dismiss the Class 4 proceedings, reserving the question of costs and fixing a timetable for a hearing on costs (the appeal).
Also on 26 February 2024, SEFR filed in the Court of Appeal a second notice of motion seeking interlocutory orders in relation to an appeal from the orders made by this Court on 8 February 2024 dismissing the Class 4 proceedings brought by SEFR, commenced on 15 January 2024, and its proposed third notice of motion filed on 29 January 2024.
On 22 March 2024, Griffiths AJA dismissed the notices of motion filed by the applicant on 22 February 2024 and 26 February 2024: South East Forest Rescue Incorporated v Forestry Corporation of New South Wales [2024] NSWCA 64.
The appeal to the Court of Appeal is listed for hearing on Tuesday, 16 April 2024.
At the hearing on costs this morning, counsel for the applicant informed the Court that its applications for leave to appeal from the Court's dismissal of its notice of motion had been discontinued. The appeal listed for tomorrow concerns the dismissal of the proceedings.

(1) whether determination of the question of costs should be deferred to after the Court of Appeal hears and determines the appeal; and

(2) whether the proceedings in this Court can be characterised as proceedings brought in the public interest, and hence the costs provision in r 4.2(1) of the Land and Environment Court Rules 2007 (NSW) (LEC Rules) applies so that the Court would not make an order as to costs.

Section 98(1) and (2) of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) relevantly provide in relation to the Court's powers as to costs:

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act -

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

Rule 1.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides as follows:

1.7 Local rules that prevail over these rules

The rules of court specified in Schedule 2 prevail over these rules.

The local rules specified in Schedule 2 to the UCPR include all rules in all Parts of the LEC Rules.
Rule 42.1 of the UCPR provides as follows:

42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

Rule 4.2(1) of the LEC Rules provides as follows in relation to costs for proceedings brought in the public interest:

4.2 Proceedings brought in the public interest

(1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

Section 253 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) provides as follows in relation to the restraint of breaches of, inter alia, an Act that is causing or likely to cause harm the environment:

253 Restraint of breaches of an Act or statutory rules that harm the environment

(1) Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of any other Act, or any statutory rule under any other Act, if the breach (or the threatened or apprehended breach) is causing or is likely to cause harm to the environment.

**Note - **

Statutory rule is defined in the Interpretation Act 1987.

(2) Any such proceedings may be brought whether or not any right of that person has been or may be infringed by or as a consequence of the breach (or the threatened or apprehended breach).

(3) A person (other than the EPA or a member of the staff of the EPA) who brings any such proceedings is required to give a copy of the application to the EPA as soon as practicable after the application is made. The EPA is entitled to become a party to those proceedings.

(4) If the Court is satisfied that a breach, or a threatened or apprehended breach, will, unless restrained by order of the Court, be committed or be likely to be committed, it may make such orders as it thinks fit to restrain the breach or other conduct of the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed.

(5) Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence.

Section 69SB of the Forestry Act provides as follows in relation to the enforcement functions of the EPA:

69SB Enforcement functions of EPA

(1) The Environment Protection Authority has the function of monitoring the carrying out of forestry operations to which this Part applies and the function of enforcing compliance with the requirements of integrated forestry operations approvals.

...

Section 69ZA of the Forestry Act provides as follows in relation to the application of statutory provisions relating to proceedings by third parties:

69ZA Application of statutory provisions relating to proceedings by third parties

(1) This section applies to the following statutory provisions -

(a) section 252 or 253 of the Protection of the Environment Operations Act 1997,

(b) a provision of an Act that gives any person a right to institute proceedings in a court to remedy or restrain a breach (or a threatened or apprehended breach) of the Act or an instrument made under the Act, whether or not any right of the person has been or may be infringed by or as a consequence of that breach,

(c) section 219 of the Protection of the Environment Operations Act 1997.

(2) Proceedings may not be brought under a statutory provision to which this section applies if the breach (or threatened or apprehended breach) to which the proceedings relate is as follows -

(a) a breach of this Part (including a breach of any forest agreement),

(b) a breach of an integrated forestry operations approval,

(c) a breach of an Act or law that arises because any defence provided by an integrated forestry operations approval is not available as a result of a breach of the approval,

(d) a breach of the Act that includes the statutory provision (including a breach of an instrument made under that Act) if the breach relates to forestry operations to which an integrated forestry operations approval applies.

(3) This section does not apply to any proceedings brought by -

(a) a Minister, or

(b) the Environment Protection Authority or a member of the staff of the Authority, or

(c) in the case of the provision of an Act referred to in subsection (1)(b) - a government agency or any government official engaged in the execution or administration of the Act.

Whether proceedings can be characterised as public interest litigation, and the three step approach articulated in Caroona Coal Action Group

In Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2)[8] (Engadine), Lloyd J at [15] said as follows in relation to whether proceedings can be characterised as public interest litigation:

15. There are several matters that may be considered in determining whether the proceedings can be characterised as public interest litigation. These may conveniently be summarised as follows:

[a] The public interest served by the litigation: Darlinghurst Residents' Association v Elarossa Investments Pty Ltd (No. 3) (1992) 75 LGRA 214 at 215; Liverpool City Council v Roads and Traffic Authority (No. 2) (1992) LGRA 210.

[b] Whether that interest is confined to a relatively small number of members from the group or association in the immediate vicinity of the development, concerned with their own private amenity; or whether the interest is wider, involving a significant number of members of the public and concern for a wider and significant geographic area: Darlinghurst Residents' Association at 215; Oshlack at 80-81.

[c] Whether the applicant sought to enforce public law obligations: Oshlack at 80 [20].

[d] Whether the prime motivation of the litigation is to uphold the public interest and the rule of law: Oshlack at 80 [20].

[e] Whether the applicant has no pecuniary interest in the outcome of the proceedings: Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 at 246.

In Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited (No 3)[9] (Caroona Coal Action Group), Preston CJ of LEC at [13]-[19] set out the following three step approach in determining whether to depart from the usual costs rule in unsuccessful public interest litigation (emphasis added):

13 What principles or guidelines have courts formulated for exercising the costs discretion in public interest litigation which has been unsuccessful? A review of the decisions on costs reveals that courts have used, in effect, a three step approach in determining whether to depart from the usual costs rule: first, can the litigation be characterised as having been brought in the public interest?; secondly, if so, is there "something more" than the mere characterisation of the litigation as being brought in the public interest?; and thirdly, are there any countervailing circumstances, including relating to the conduct of the applicant, which speak against departure from the usual costs rule?

...

15 The first step sets the threshold. If the litigation cannot be characterised as being brought in the public interest, then obviously the public interest cannot be a circumstance justifying departure from the usual costs rule and any justification will need to be found in some other circumstance. If, however, the litigation can be characterised as being brought in the public interest, it becomes necessary to examine more closely the nature, extent and other features of the public interest involved in the particular litigation to ascertain whether they provide justification in the circumstances of the case for departure from the usual costs rule.

16 This closer examination is required because the public interest is so broad that much litigation, in public law in particular, may be able to be characterised as being brought in the public interest. Characterisation of litigation as being brought in the public interest is too crude a criterion to enable the court to differentiate between the potentially large pool of matters that could be characterised as being brought in the public interest and identify those special matters where departure from the usual costs rule is justified.

17 Hence, courts have held that something more than mere characterisation of the litigation as being brought in the public interest is required. This is the second step in the process.

18 Although the litigation may be able to be characterised as being in the public interest (the first step) and the nature, extent and features of the public interest involved and other circumstances of the litigation may ground justification for departure from the usual costs rule (the second step), the court retains a discretion whether to do so. The court will look to all the circumstances and the justice of the case. This entails consideration of countervailing factors that speak against departure from the usual costs rule. This is the third step in the process.

19 These countervailing factors may relate to, and diminish the weight of, the public interest considerations, and may also relate to the conduct of the applicant. Courts have observed that the public interest applicant does not have a special or privileged status and should be held to the same standards of conduct as any other party; they are not granted an immunity from costs or a "free kick" in litigation: Oshlack v Richmond River Council at [134] per Kirby J; South-West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) [1998] HCA 35; (1998) 72 ALJR 1008; 101 LGERA 114 at [5] per Kirby J.

In May v Northern Beaches Council and Anor (No 3),[10] also a matter in the Court's Class 4 jurisdiction, Robson J applied the chief judge's three step approach even though that approach was "developed in relation to a different costs regime"[11] (being proceedings in the Court's Class 8 jurisdiction), and observed that the three step approach is "generally applied by the Court".[12]
In relation to the first step in the three step approach, in Caroona Coal Action Group the chief judge at [27] referred to "the need for courts to ensure access to justice in environmental matters". At [36], the chief judge said as follows:

36. ... one justification for departure from the usual costs rule in litigation brought by citizens seeking to enforce public law to ensure environmental protection is to provide access to justice for these citizens and to ensure this aspect of the public interest is represented in the courts. This justification makes it reasonable for a court to examine the litigation concerned to ascertain whether it can be characterised as having been brought for the relevant, unrepresented aspect of the public interest that provides the justification for departure from the usual costs rule. It is not any aspect of the public interest that is relevant, only that aspect involving the enforcement of public law which risks being unrepresented by reason of costs acting as a barrier to access to justice.

At [38], the chief judge referred to the remarks of Lloyd J in Engadine at [15],[13] and said as follows (emphasis added):

38. A review of the costs decisions reveals that courts have referred to a variety of considerations to determine whether litigation can properly be characterised as having been brought in the public interest. Lloyd J in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 at [15] summarised five considerations...

41. ...the considerations should not be seen or applied as a code for characterisation of litigation as being brought in the public interest. They are merely considerations which, if answered in a particular way, may indicate that the proceedings could be characterised as being brought in the public interest. Other considerations may also be relevant to be considered.

43. ... it is not necessary in order to characterise litigation as being brought in the public interest to answer each of these considerations in a particular way. For example, in consideration (b), the fact that the public interest is confined to a small section of the community does not necessarily deny characterisation of the litigation as being brought in the public interest. As Jacobs J noted in Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at 487, "the smallness of the section of the public may affect the quantity or weight of the public interest ... [but] it does not affect the quality of that interest."

In Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (No 2)[14] (Mullaley Gas and Pipeline Accord) at [11]-[12], the chief judge said as follows in relation to the considerations and factors in the characterisation of litigation as having been brought in the public interest:

11. These considerations and factors should not be regarded as "fixed criteria" for the characterisation of litigation as having been brought in the public interest: Caroona Coal at [41]; Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 295; [2019] NSWCA 216 at [83]. Rather, they are considerations or factors which, if answered in a particular way, may indicate that the proceedings have been brought in the public interest. Other considerations may also be relevant to be considered: Caroona Coal at [41].

12. Not all of these considerations or factors need to be answered in a particular way in order to characterise the proceedings as having been brought in the public interest: Caroona Coal at [46]. An example given in Caroona Coal at [43] is the fact that the public interest might be confined to a small section of the community does not necessarily deny characterisation of the proceedings as having been brought in the public interest. Another example in Caroona Coal at [44] and [45] is the fact that the proceedings might involve some private interest, such as a pecuniary interest in the outcome of the litigation, does not necessarily deny characterisation of the proceedings as having been brought in the public interest. Litigation can still be of a public interest character, notwithstanding it might also advance some private interests.

In relation to the second step in the three step approach, namely, whether there is "something more" than the mere characterisation of litigation as being brought in the public interest, in Caroona Coal Action Group the chief judge said at [47] as follows (emphasis added):

47. It is perhaps because of the nebulous and broad nature of the concept of public interest that courts have suggested that "something more" may be required than the mere characterisation of the litigation as being in the public interest: Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 at 244 (Stein J) and noted in Oshlack v Richmond River Council (HCA) at [20], [49]; Anderson v NSW Minister for Planning (No 2) at [8]; Minister for Planning v Walker (No 2) at [9]; Hastings Point Progress Association Inc v Tweed Shire Council (No 3) at [27], [35], [47] and [54]. However, the statement that "something more" is required has been interpreted in different ways. One interpretation has been that the "something more", the additional circumstance or factor, must be unrelated to the nature, extent or other features of the public interest involved in the litigation. This interpretation is incorrect. The circumstance or factor can relate to the public interest in the litigation. A brief summary of the background to Stein J's statement that "something more" is required in Oshlack v Richmond River Shire Council may help explain why this is so.

And at [60], the chief judge summarised his conclusions in relation to the requirement of "something more" as follows (citations omitted):[15]

60. With this background to the requirement of "something more", what circumstances or factors have the courts identified that, when coupled with the characterisation of the litigation as being brought in the public interest, justify departure from the usual costs rule? The circumstances identified fall into at least five categories:

(a) the litigation raises one or more novel issues of general importance...

(b) the litigation has contributed, in a material way, to the proper understanding, development or administration of the law...

(c) where the litigation is brought to protect the environment or some component of it, the environment or component is of significant value and importance ...

(d) the litigation affects a significant section of the public ... and

(e) there was no financial gain for the applicant in bringing the proceedings ...

In relation to the third step in the three step approach, (namely, consideration of any countervailing circumstances), in Caroona Coal Action Group at [61] the chief judge identified countervailing considerations, including the following (citations omitted):

61. Even where courts have found or assumed that the litigation could be characterised as public interest litigation, they may decline to depart from the usual costs rule because of countervailing considerations. Some of these can be seen to be the converse of the public interest considerations earlier referred to, but others are independent. Countervailing considerations identified in the cases include:

(a) the applicant is seeking to vindicate rights of a commercial character and stands to benefit from the litigation ...

(b) where the applicant is an incorporated association, the private interests of members of the association would be affected, legally or financially, by the outcome of the litigation ...

(c) the applicant is supported financially by persons or bodies who would benefit from, or would have their legal or financial interests affected by, the outcome of the litigation ...

(d) the narrowness of the question of public interest raised, such as only involving a discrete point of interpretation without broad ramifications ...

(e) the applicant "unreasonably pursues or persists with points which have no merit" ... and

(f) there is disentitling conduct of the applicant, such as impropriety or unreasonableness in the conduct of the litigation ...

The Court's discretion on interlocutory costs applications and proceedings brought in the public interest

In May v Northern Beaches, Robson J at [10]-[15] said as follows in relation to the Court's discretion on interlocutory costs applications and proceedings brought in the public interest:

10. The applicable principles on interlocutory costs applications are well established. The Court has a wide discretion under s 98 of the Civil Procedure Act 2005 (NSW) ('Civil Procedure Act') to make orders as to costs of a disputed notice of motion, including in relation to the basis upon which those costs are to be assessed ...

11. Notwithstanding the Court's broad discretion, as a general rule, costs follow the event and are assessed on the ordinary basis unless the Court orders otherwise: rr 42.1, 42.2 of the UCPR.

12. The application of this general rule is however subject to r 4.2(1) of the Land and Environment Court Rules 2007 (NSW) ('LEC Rules') which applies to proceedings in Class 4 of the Court's jurisdiction by operation of r 4.1...

13. By combined operation of s 11 of the Civil Procedure Act, r 1.7 and Sch 2 of the UCPR, the LEC Rules are to prevail over the general rule if it appears that it would be more appropriate for some other order to be made as to the whole or any part of the costs: Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216; (2019) 372 ALR 695 at [90] (Basten JA).

14. To avail itself of r 4.2(1) of the LEC Rules and displace the presumptive rule that costs follow the event, a party must however show that there is something out of the ordinary in the particular case that justifies such departure_:_ Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157 at [18] (Young JA, McColl JA agreeing).

15. In applying the above principles, the Court must seek to compensate the person in whose favour the costs order is made, rather than punish the person against whom it is made: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67] (McHugh J) ('Oshlack'); Ohn v Walton (1995) 36 NSWLR 77 at 79.

SEFR's primary submission was that determination of the question of the costs of the proceedings before me seeking interlocutory relief be stayed until the Court of Appeal delivers its decision on appeal (which I understand to be listed on 16 April 2024). SEFR submitted that should its appeal against dismissal of the proceedings fail, the appropriate disposition of the question of costs of the proceedings before me would be that each party bear its own costs.
SEFR drew attention to r 4.2(1) of the LEC Rules which provides that the Court may decide not to make an order for the payment of costs against an unsuccessful applicant in the proceedings if it is satisfied that the proceedings have been brought in the public interest. SEFR also referred to the criteria for determining whether proceedings have been brought in the public interest set out by Pepper J in Boronia Park[16] where her Honour referred to Engadine at [15] and Caroona Coal Action Group at [38]-[46].
Although r 4.2(1) was not considered in Caroona Coal Action Group, subsequent cases have applied Caroona Coal Action Group in determining the exercise of discretion under that rule.[17]
SEFR submitted that the proceedings here satisfy each of the five "criteria" (or categories of circumstances) identified in Caroona Coal Action Group as constituting "something more", noting that it is enough for one of those criteria to be met:

(1) the litigation raised one or more novel issues of general importance;

(2) the litigation contributed in a material way to the "proper understanding, development of administration of the law";

(3) the litigation was brought to protect "an environment and a component of the environment that is of significant value and importance";

(4) the litigation affects a significant section of the public, as all Australians have an interest in preventing the extinction of native species; and

(5) there was no financial gain for the applicant in bringing the proceedings.

Further, the proceedings were submitted to exhibit none of the six countervailing considerations referred to by the chief judge in Caroona Coal Action Group at [61], namely:

(1) SEFR was not seeking to vindicate rights of a commercial character and did not stand to benefit in a pecuniary sense from the litigation;

(2) SEFR's members' private interests would not be affected legally or financially by the outcome of the litigation;

(3) SEFR was not supported financially by persons or bodies who would be so affected;

(4) the question of public interest was not narrow;

(5) SEFR did not unreasonably pursue or persist with points which had no merit; and

(6) there was no disentitling conduct.

SEFR submitted, that if the Court is not inclined to reserve judgment on the question of costs pending the determination of the appeal, the "[p]reservation of den trees and protection of gliders and their habitat" are "quintessentially public interest matters". The requirement for "something more" is satisfied, and there are no countervailing considerations.

FCNSW submitted that the Court would deal with the question of costs now, and not defer it for some "unknown period of time" until the Court of Appeal determines SEFR's appeal. Further, the Court would not depart from the ordinary costs rule, and would order SEFR to pay FCNSW's costs on a party/party basis.
FCNSW submitted that SEFR's submissions provided no, or at least no adequate, support for deferring the Court's determination of the question of costs. Deferring the question of costs would "fragment the proceedings and only leave open the possibility of a further appeal". Such an approach was to be strongly discouraged.[18]
The ordinary course, it was submitted, is that costs follow the event; and the applicant did not raise any matters relevant to the exercise of the costs discretion other than the operation of r 4.2(1). As identified by Preston CJ of LEC in Caroona Coal Action Group, the mere identification of proceedings having been taken in the public interest is not enough. The Full Court of the Supreme Court of Western Australia in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale[19] said that "great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion in respect to costs in an unprincipled, haphazard and unjudicial manner".[20]

First step in Caroona Coal Action Group: whether the proceedings can be characterised as having been brought in the public interest

In relation to the first step of the three steps identified by the chief judge in Caroona Coal Action Group, FCNSW submitted as follows:

(1) A significant difficulty for the applicant relates to the Court's finding of an absence of standing, such finding, although not determinative, weighing heavily against the applicant.

(2) There was no evidence to support SEFR's submission that "the public interest served in this litigation is the interest in preservation of biodiversity and prevention of threatened species being driven to extinction". The evidence was submitted to be the contrary, the Court having noted at [39] of the primary judgment that SEFR was formed "for the purpose of ending native forest logging in New South Wales". Although variously expressed by the applicant, the subject matter of the proceedings was the enforcement of the CIFOA. In its most expansive interpretation, the subject matter of the proceedings concerned a requirement for the carrying out of "rigorous surveys" during broad area habitat searches for the three species of gliders (the Southern Greater Glider, the Yellow-bellied Glider and the Squirrel Glider).

(3) It was in the knowledge of the limitation in s 69ZA of the Forestry Act that the applicant "brought its very narrow, and focussed, proceedings challenging compliance with the conditions of the CIFOA for the carrying out of broad area habitat".

(4) SEFR could not "get through the first step" (in the three step approach), and the Court "would not be satisfied that the proceedings were brought in the public interest". There was "no evidence to suggest a wider, involving all Australians and a very broad geographical area, interest in compliance with condition 57 of the CIFOA".

(5) The Court would not be satisfied that the prime motivation of the litigation was to uphold the public interest and the rule of law, rather the prime motivation was to end native forest logging in New South Wales.

(6) If the applicant relies upon the "criteria" that it has no pecuniary interest in the outcome of the proceedings, there should be some evidence to that effect, and there was none.

Second step in Caroona Coal Action Group: "something more"

In relation to the second step in Caroona Coal Action Group, FCNSW noted the chief judge's reasons at [47] where his Honour referred to the nature of the concept of public interest as "nebulous and broad", and submitted that the mere recitation of the criteria in Caroona Coal Action Group in relation to "something more", and positive assertions of satisfaction, are not capable of satisfying the Court of "something more." In particular:

(1) The Court's conclusion in relation to the availability of common law standing is not enough to demonstrate "something more".

(2) SEFR's submissions incorrectly characterise the proceedings. Proceedings brought to protect the environment from harm pursuant to s 253 of the POEO Act were not available because of the operation of s 69ZA of the Forestry Act. Of necessity, the proceedings did not seek to prevent the environment from harm, rather they focussed upon the alleged failure to properly, or adequately, search for den trees.

(3) Even if SEFR were able to speak on behalf of "all Australians", which it cannot, there was nothing to support a submission that a significant section of the public has an interest in the real subject matter of the proceedings, being the enforcement of the conditions of the CIFOA_._

Third step in Caroona Coal Action Group: countervailing considerations

In relation to the third step in Caroona Coal Action Group, namely countervailing considerations, FCNSW emphasised two considerations as relevant:

(1) Contrary to SEFR's submissions, "the public interest, properly construed, is narrow".

(2) In relation to disentitling conduct, whilst there was no suggestion of impropriety on the part of SEFR, that "is not necessary" to establish disentitling conduct. SEFR elected to bring "very narrow focused proceedings because of the deliberate legislative impediment to the Applicant seeking 'to protect the environment from harm'" (s 69ZA of the Forestry Act). SEFR having "elected that course, and failed", it was submitted, "sounds heavily in the exercise of the Court's costs discretion".

In reply, SEFR submitted that deferred determination of costs would be the "economical course", there being "no risk that the remaining final stage of the proceeding will be fragmented". Further, there would be "significant procedural complications if costs were determined before the Court of Appeal hands down its decision" on the appeal. SEFR would then seek leave from the Court of Appeal to amend its notice of appeal to add a further order setting aside the costs order made by this Court. This would be "avoided by deferring the hearing on the question of costs".
In relation to whether the proceedings were brought in the public interest, SEFR referred to the Court's finding at [136(2)] of the primary judgment that the litigation concerns the protection of Southern Greater Gliders. FCNSW's contention that the litigation was brought solely to enforce the CIFOA, rather than to protect the Southern Greater Glider, was submitted to be inconsistent with the Court's findings.
SEFR submitted that that the public interest served by the proceedings is not concerned with the private amenity of a relatively small number of members of a group; it is wider and involves a significant number of members of the public and concern for a wider geographic area:

(1) the preservation of threatened species in general, and the Southern Greater Glider in particular, is the subject of federal legislation (the Environment Protection and Biodiversity Conservation Act 1999 (Cth)) and State legislation (Biodiversity Conservation Act 2016 (NSW) (Biodiversity Conservation Act)) and therefore a matter of interest to the broad Australian public; and

(2) the geographic area the subject of the litigation is the northern and southern CIFOA regions, almost the entirety of New South Wales' coastal forest area.

It was submitted to be self-evident that the applicant, SEFR, seeks to enforce public law obligations, the Court having found in the primary judgment at [128] that the applicant was bringing proceedings seeking to enforce a public right or prevent a public wrong, the Court being required to decide whether the applicant had standing at common law to do so.
In relation to the "prime motivation of the litigation", SEFR submitted that it is "important to note that it is the motivation of the litigation and not the litigant that is the focus of the enquiry." The Court cannot know and is not called upon to enquire into what motivates a litigant to commence proceedings: individual plaintiffs may be driven by "emotional factors of different kinds"; corporations may be driven by a variety of business considerations; and "various psychological drivers will motivate the committee members of a not-for-profit incorporated association".
Further, the "respondent's speculations as to the applicant's motivations [were] irrelevant", "the motivation of litigation [being] easy to determine"; it being "the outcome that is expressly sought". Generally, the outcome sought by enforcement proceedings brought by parties with the requisite special interest, is "securing observance by statutory authorities of the limitations upon their activities which the legislature has imposed". In this case, SEFR submitted that the motivation of the litigation "was in a broad sense to procure the public interest ..., and in a narrow sense to secure compliance by the respondent with conditions 57 and 76 of the CIFOA".
The "prime motivation of this litigation" was submitted to be "to uphold the public interest and the rule of law". Out of "an abundance of caution", SEFR "adduced direct affidavit evidence establishing that it has no pecuniary interest in the outcome of the proceedings": affidavit of Mr Scott Daines dated 28 March 2024 (Mr Daines being public officer and president of SEFR). SEFR submitted that the Court could "readily infer" from the substantial material before it as to the applicant's objectives, history and activities that it brought the proceedings in order to "further the objectives set out in its vision statement".[21] In particular, the Court's finding that SEFR lacked standing was not an impediment to the Court finding that it has a "special interest"; there being "no such connection" between the question of standing and the character of the litigation.
Further, SEFR submitted that s 69ZA of the Forestry Act did not prevent it bringing the proceedings to restrain harm to the environment, referring to the Court's finding at [128] of the primary judgment that s 69ZA "does not have the effect of ousting common law standing to bring proceedings seeking to enforce compliance with the requirements of an integrated forestry operations approval to which Part 5B of the Forestry Act applies", and that a "private person or entity with a special interest in the subject matter of the proceedings seeking to enforce a public right or prevent a public wrong may have standing at common law to bring proceedings to enforce compliance with an integrated forestry operations approval."
Finally, SEFR submitted that if the matter is to be decided before the Court of Appeal determines the appeal, the Court should exercise its discretion under r 4.2(1) of the LEC Rules and make no costs order against the applicant.

(1) It is appropriate that the Court deal presently with the costs of the proceedings brought by SEFR seeking interlocutory relief restraining FCNSW from conducting forestry operations in specified compartments of specified State forests, and not defer determination of the question of costs pending the disposition by the Court of Appeal of the applicant's appeal. I accept FCNSW's submission that SEFR has advanced no cogent reason for deferring determination of the question of costs.

(2) In relation to r 4.2(1) of the LEC Rules and the question of whether the Court is satisfied that the proceedings were brought in the public interest, I am so satisfied. Although the three step approach articulated by the chief judge in Caroona Coal Action Group "should not be regarded as "fixed criteria" ... the criteria do assist in characterising the nature of the proceedings and the purpose for which the proceedings have been brought".[22] In relation to the first step, FCNSW submitted that SEFR has a "significant difficulty" in proving the public interest served by the litigation as in the primary judgment I did not find that SEFR had standing. I do not consider that the common law test for standing and the test of whether litigation can be characterised as having been brought in the public interest within r 4.2(1) of the LEC Rules are the same. The Court's finding in the primary judgment that SEFR did not satisfy the common law test for standing is not determinative of whether the proceedings were brought in the public interest. The common law test for standing concerns whether SEFR had a "sufficient special interest"[23] in the subject matter of the proceedings, and not whether the proceedings have been brought in the public interest. The former is a narrower question. However, I do not accept SEFR's submission that there is "no such connection" between SEFR's special interest in the subject matter of the proceedings and its standing, and whether the proceedings were brought in the public interest. As the chief judge said in Caroona Coal Action Group at [36]:

... one justification for departure from the usual costs rule in litigation brought by citizens seeking to enforce public law to ensure environmental protection is to provide access to justice for these citizens and to ensure this aspect of the public interest is represented in the courts ... It is not any aspect of the public interest that is relevant, only that aspect involving the enforcement of public law which risks being unrepresented by reasons of costs acting as a barrier to access to justice.

Notwithstanding the enforcement functions of the EPA under s 69SB of the Forestry Act, I have found that "properly construed s 69ZA does not have the effect of ousting common law standing to bring proceedings seeking to enforce compliance with the requirements of an integrated forestry operations approval to which Part 5B of the Forestry Act applies".[24] Addressing the five matters identified by Lloyd J in Engadine at [15], I find that:

(a) The public interest served by the litigation is the protection of Southern Greater Gliders and their habitat in the native forests in New South Wales, including the preservation of den trees, by enforcing conditions 57 and 76 of the CIFOA.

(b) That public interest is not confined to the private amenity of SEFR's six members. Rather, it extends to a considerably greater number of members of the public, over a significantly more extensive geographic area. This is because as noted at [4] in the primary judgment, pursuant to Biodiversity Conservation Act the Southern Greater Glider is "currently listed as an endangered species" in New South Wales. In the primary judgment at [136(1)], I found that the compartments the subject of the relief sought in the amended notice of motion are in three FCNSW sub-regions: Lower North East subregion, Upper North East subregion and Southern subregion.

(c) SEFR has sought to enforce public law obligations. The proceedings sought civil enforcement of FCNSW's compliance with conditions 57 and 76 of the CIFOA to which Part 5B of the Forestry Act applies.

(d) The prime motivation of the litigation was to uphold the public interest in the protection of Southern Greater Gliders and their habitat, in particular State forest compartments in the native forests of New South Wales by seeking compliance with conditions 57 and 76 of the CIFOA. I find that the prime motivation of the litigation was to uphold the public interest, and the rule of law.

(e) SEFR had no pecuniary interest in the outcome of the proceedings, and "it did not and does not stand to gain any financial or economic reward from the success (or failure) of the proceedings", as deposed to by Mr Daines in his affidavit dated 28 March 2024.

(3) In relation to the second step in Caroona Coal Action Group, and the requirement of "something more", addressing the five categories of circumstances identified by the chief judge at [60], I am satisfied that:

(a) The litigation raised one or more novel issues of general importance, namely the question of whether there exists standing at common law to bring civil enforcement proceedings in this Court to enforce compliance with the requirements of integrated forestry approvals: [107]-[128] of the primary judgment.[25]

(b) The litigation has contributed, in a material way, to the development of the law, namely whether as held at [128] of the primary judgment that "on its proper construction, s 69ZA does not have the effect of ousting common law standing to bring proceedings seeking to enforce compliance with the requirements of an integrated forestry operations approval to which Part 5B of the Forestry Act applies. A private person or entity with a special interest in the subject matter of the proceedings seeking to enforce a public right or prevent a public wrong may have standing at common law to bring proceedings to enforce compliance with an integrated forestry operations approval".

(c) The litigation was brought to protect the environment or some component of it, being the Southern Greater Glider and their habitat in particular State forest compartments in the native forests of New South Wales.

(d) The litigation affects a significant section of the public. SEFR submitted that this is satisfied because "all Australians have an interest in preventing the extinction of native species". I do not accept this submission which is addressed at a high level of generality. SEFR cannot speak on behalf of "all Australians". However, I find that the prevention of the extinction of the Southern Greater Glider which is currently listed as endangered under the Biodiversity Conservation Act,[26] by enforcing conditions 57 and 76 of the CIFOA, concerns a significant section of the public.

(e) There was no financial gain for SEFR in bringing the proceedings, as deposed to by Mr Daines, the public officer and president of SEFR.

(4) In relation to the six countervailing circumstances identified by the chief judge in Caroona Coal Action Group at [61], I am satisfied that:

(a) SEFR was not seeking to vindicate rights of a commercial character and does not stand to benefit from the litigation.

(b) SEFR's six members' private interests would not be affected legally or financially by the outcome of the litigation.

(c) There is no evidence that the applicant is supported financially by persons or bodies who would benefit from, or would have their legal or financial interests affected by, the outcome of the litigation.

(d) The question of the public interest was not narrow. Whilst FCNSW contends that SEFR brought a "very narrow focused proceedings because of the deliberate legislative impediment ... [in s 69ZA of the Forestry Act]", I find that the public interest was not narrow as the proceedings sought to protect Southern Greater Gliders and their habitat in the native forests of New South Wales, including the preservation of den trees, by enforcing conditions 57 and 76 of the CIFOA.

(e) SEFR did not unreasonably pursue or persist with points which had no merit. In the primary judgment at [106], I was satisfied that "it is appropriate to exercise the discretion ... to decide the question of standing as a preliminary matter". And at [128], I was satisfied that "s 69ZA [of the Forestry Act] does not have the effect of ousting common law standing to bring proceedings seeking to enforce compliance with the requirements of an integrated forestry operations approval to which Part 5B of the Forestry Act applies".

(f) There was no disentitling conduct such as impropriety or unreasonableness in the conduct of the litigation.

70 Accordingly, I will make no order as to costs of the proceedings in this Court.

[1] Primary judgment at [140] and [176].

[3] Primary judgment at [176]. In North East Forest Alliance Incorporated (INC1601738) v Forestry Corporation of NSW (NEFA) at [131(2)], I held that the question of standing is to be determined by reference to the common law for s 69ZA of the Forestry Act in proceedings for judicial review.

[7] Primary judgment [161] and [177].

[8] (2004) 126 LGERA 365; [2004] NSWLEC 434 (Lloyd J).

[10] [2023] NSWLEC 72 (May v Northern Beaches) (Robson J).

[13] Cited in May v Northern Beaches at [31]-[32] (Robson J), and David Goode v Gwydir Shire Council (No 2) [2020] NSWLEC 118 at [32] (Pain J).

[14] [2021] NSWLEC 147 at [11] (Preston CJ of LEC).

[15] See also Boronia Park Preservation Group v MSMG Developments Pty Ltd (2015) 209 LGERA 259; [2015] NSWLEC 112 (Boronia Park) at [58] (Pepper J).

[16] Boronia Park at [53] (Pepper J).

[17] For example, Mullaley Gas and Pipeline Accord (Preston CJ of LEC).

[18] Narellan Franchise Pty Ltd v RBME Pty Ltd [2023] NSWCA 139 at [18] (Ward P, Leeming and Kirk JJA).

[19] [1999] WASCA 55 at [11] (Kennedy, Wallwork and Murray JJ); cited in Caroona Coal Action Group at [12] (Preston CJ of LEC).

[20] Caroona Coal Action Group at [12] (Preston CJ of LEC).

[21] See primary judgment at [44]-[45].

[22] Mullaley Gas and Pipeline Accord at [46] (Preston CJ of LEC).

[23] See Bateman's Bay Local Aboriginal Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49 at [52] (Gaudron, Gummow and Kirby JJ).

Environment Operations Act 1997(NSW)s 253

(Biodiversity Conservation Act 2016(NSW)

Protection and Biodiversity Conservation Act 1999

Environment Court Act 1979

Environment Court Rules 2007

Civil Procedure Rules 2005

Environment Operations Act 1997(NSW)s 253

Conservation Act 2016

(2015) 209 LGERA 259

(2010) 173 LGERA 280

(2004) 136 LGERA 365

(2019) 238 LGERA 295

(2010) 172 LGERA 157

(2004) 126 LGERA 365

At a glance

Court

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Before

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Judgment (125 paragraphs)

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Legislation Cited (16)

Cases Cited (28)

Cited By (2)