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[1998] HCA 34
respondent. Applications for special leave to appeal dismissed.
The High Court majority refused the forest groups permission to appeal because their statements of claim were too complex and unclear, and the Court considered that the applicants could at most gain a chance to plead their case again. The majority noted that a fresh proceeding was not barred and that some environmental-plan arguments might be arguable if properly pleaded. It did not decide whether the alleged duties existed or whether the logging would breach them. Kirby J disagreed, reasoning that the questions were important and that striking out the claims risked denying the groups a practical hearing on the merits.
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2,107 words · generated 05/10/2026
The High Court considered three applications for special leave arising from a Full Court of the Supreme Court of Western Australia decision striking out statements of claim brought by two environmental organisations: South-West Forest Defence Foundation Inc and Bridgetown-Greenbushes Friends of the Forest Inc. The respondents included the Executive Director of the Department of Conservation and Land Management.
12 cited instruments linked from this judgment.
The dispute concerned proposed logging and alleged obligations under Western Australian environmental and land-management legislation, a Forest Management Plan, and commitments associated with a proposal to amend an earlier plan. The applicants said, in substance, that the first respondent had to identify, locate and seek to conserve endangered flora and fauna before logging, or at least take reasonable steps to do so ([3]). They also sought, among other relief, an injunction to restrain logging that they said would make performance of that duty impossible ([4]).
The pleadings also raised an alleged duty to liaise with the local community, based on commitments connected with the proposed plan amendment ([5]). A further argument relied on the Wildlife Conservation Act 1950 (WA), contending that the respondents, their agents and contractors would breach its flora and fauna protections through the proposed logging ([6]).
The majority recorded that the pleadings struck out below were long and complex, and in a form likely to embarrass a fair trial ([1]). The Full Court had permitted repleading to a limited extent, but the applicants did not use that permission ([2]). The High Court majority dismissed the special leave applications. Kirby J dissented.
The judgment is therefore principally a procedural decision. It does not decide whether the Forest Management Plan imposed enforceable obligations, whether the alleged duties existed, or whether the proposed logging would breach the legislation.
The majority focused on the procedural setting and the limited practical relief that an appeal could provide. It accepted that the Full Court's decision to strike out the pleadings could be supported by their length, complexity and likely effect on a fair trial ([1]). It also observed that the applicants had not used the limited opportunity to replead given below ([2]).
As argument developed, the majority identified three aspects of the proposed case. The environmental-plan claim was not treated as plainly hopeless: the majority said it was “not necessarily beyond argument” and expressly disclaimed any conclusion that a properly framed pleading alleging that case should be struck out before trial ([7]). But the claim, as the Full Court had understood it, did not clearly express the applicants' intended argument. The majority said the pleadings would need to be recast to make the alleged duty and the requested restraint clear ([4]).
The other two aspects did not support special leave in the majority's view. The community-liaison claim depended on the meaning and effect of commitments associated with the proposed plan amendment, matters the majority said should not attract special leave ([5]). For the Wildlife Conservation Act claim, the majority understood the relevant provisions to prohibit activity without a licence or written ministerial consent. The pleadings did not allege that the necessary authorisation would not be granted, and the majority considered it difficult to assume that it would be refused if needed. It therefore described these issues as bordering on the hypothetical ([6]).
A central practical consideration was that the applicants could gain, at most, the right to replead. The Solicitor-General accepted that the judgment did not preclude a fresh proceeding with more precise pleadings and without needless elaboration ([8]). On that footing, the majority was not persuaded to grant special leave.
The majority also rejected the suggestion that the Court should decide the issues simply because the parties had already argued them. It stated that the special leave procedure should not be circumvented for that reason ([9]). The majority accordingly concluded that this was not an appropriate case for special leave ([10]).
Kirby J disagreed with the majority's approach. He emphasised the substantial time and expense already devoted to the hearing, and considered that arguable special leave issues had emerged ([12]-[13]). In his view, the strike-out orders would practically deny access to remedies unless set aside, notwithstanding their technical character ([13]-[15]). He regarded the potential significance of environmental management plans, standing, remedies and the Crown-binding question as reasons to grant special leave and continue the hearing ([18]-[23]). Those are dissenting reasons, not the Court's disposition.
The judgment itself gives only a limited account of the legal position before the applications. It records that the applicants sought to rely on s 33 of the Conservation and Land Management Act 1984 (WA), read with a Forest Management Plan, and on s 47 of the Environmental Protection Act 1986 (WA), read with commitments made in relation to a proposed plan amendment ([3]). It also identifies the relevant Wildlife Conservation Act provisions as s 16(1) and s 23F in footnotes 2 and 3, describing them as requiring a licence or written ministerial consent for the relevant activities ([6]).
The majority did not determine how those provisions applied to the alleged logging or what legal force the plan or commitments had. Its statement that the environmental-plan arguments were not necessarily beyond argument should not be read as a ruling that the asserted duties existed or were enforceable. The Court left those matters open, while indicating that a properly framed pleading would be needed to put the issue clearly ([4], [7]).
The judgment's post-decision effect, as established by the supplied text, is also procedural rather than substantive. The applications were dismissed, and the majority did not alter the Full Court's strike-out decision. The Solicitor-General's acceptance that a fresh proceeding was not precluded appears in the majority's reasons as a consideration bearing on special leave, not as a substantive ruling by the Court on the legal viability of any future claim ([8]).
Kirby J described a potentially important question about whether environmental management plans required by legislation could be enforceable against government agencies. He referred to s 33(3), under which, in his account, management of land covered by the plan had to be carried out in accordance with that plan ([18]). But the majority did not decide that question. The judgment therefore cannot be treated as establishing a general rule about the enforceability of environmental management plans.
At [1], the majority said the pleadings were “long and complex” and likely to “embarrass the fair trial”. In plain English, the Court accepted that the way the claims had been drafted could make a fair and orderly trial difficult. The passage addresses the form of the pleadings, not whether the underlying environmental concerns were correct.
At [4], the majority said the proposed case would need to be “recast” to make it clear. That means the applicants' intended argument about a duty to identify or conserve species, and about restraining logging, was not adequately expressed in the pleadings as understood below.
At [6], the majority treated the Wildlife Conservation Act point as close to hypothetical because the claim did not allege that a required licence or consent would be refused. The reasoning is tied to the pleaded case and the provisions identified by the Court. It is not a finding about whether a licence or consent was in fact required or would be issued.
At [7], the majority carefully stated that it was not deciding that a properly framed environmental-plan claim should be struck out. The applicants' contention was “not necessarily beyond argument”. In ordinary language, the Court considered the claim arguable enough not to dismiss its legal possibility at this stage, but did not decide it on its merits.
At [8], the majority recorded the Solicitor-General's acceptance that the existing judgment did not preclude a fresh proceeding. This mattered to the majority's view that special leave would provide little more than an opportunity to replead. It should not be enlarged into a ruling that a new claim would succeed or that no procedural or substantive obstacles could arise.
Kirby J's statement at [14] that pleadings stand “at the gateway to a court” captures his concern that procedural defects can prevent a merits hearing. At [19], he warned that treating management plans as mere exhortations could undermine the apparent legislative requirement. Both passages express the dissent's reasoning. Neither is a holding of the majority.
The decision is most directly relevant where a party seeks special leave after pleadings have been struck out for being lengthy, complex or unclear, and the proposed appeal would chiefly provide a chance to replead. The majority's attention to the pleadings' form, the need to recast the environmental claim, and the possible availability of a fresh proceeding all arise from those circumstances ([1], [4], [8]).
It may also be relevant to applications that ask the High Court to decide substantive questions during special leave proceedings simply because extensive argument has already occurred. The majority said that exposure of the issues through argument does not displace the special leave procedure ([9]).
For environmental litigation, the judgment is a useful procedural reference where claims rely on statutory plans, administrative commitments or licensing provisions. But it does not establish that such plans or commitments are enforceable, nor that an organisation has standing to enforce them. Those were among the issues raised or identified in the reasons, but not decided by the majority ([3], [5], [20]-[21]).
The Wildlife Conservation Act discussion is specifically tied to a pleaded claim that did not allege refusal of a licence or consent. The majority's reasoning should not be detached from that pleading gap or generalised to cases where authorisation is disputed or not required ([6]).
The supplied judgment contains no account of later cases applying, distinguishing or criticising this decision. It is therefore not possible, from this source alone, to state how later courts have treated it.
Within the judgment, the authorities cited for pleading principles appear in Kirby J's dissent. These include Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissioner for Railways (NSW), cited in connection with the proposition that pleadings should not be struck out except in a clear case and that repleading may be appropriate where the defect is one of expression ([15]). Burton v Shire of Bairnsdale and Dey are also cited for the seriousness of preventing a party from having a merits hearing because of pleading defects ([17]). Those references explain Kirby J's reasoning; they should not be presented as the majority's adoption of his proposed approach in this case.
The majority's reasons do cite Tampion v Anderson for the proposition associated with the acceptance that a fresh proceeding was not precluded ([8], footnote 4). The judgment does not otherwise provide a later-treatment history or establish a broader precedent relationship beyond its own reasoning.
The central substantive question left unresolved is whether s 33 of the Conservation and Land Management Act 1984 (WA), together with the relevant Forest Management Plan, imposed the alleged obligation to identify, locate or seek to conserve endangered flora and fauna before logging. The majority said the argument was not necessarily beyond argument, but did not decide it ([3], [7]).
Also unresolved is whether s 47 of the Environmental Protection Act 1986 (WA), combined with commitments relating to the proposed amendment of an earlier plan, created an enforceable obligation. The judgment identifies the proposed argument but does not interpret the section or commitments on their merits ([3], [5]).
The Court did not determine whether the applicants had standing to seek public environmental remedies. Kirby J regarded that as an important issue; the majority noted that standing had been successful below and that it was among the matters exposed in the hearing ([9], [20]). Nor did the Court decide when declaratory or injunctive relief may be available to enforce environmental law supported by criminal sanctions, or the rule for determining whether Parliament intended the Crown to be bound by an environmental plan. Kirby J identified those as important questions, but they were not resolved by the majority ([21]).
Finally, the judgment does not settle what pleading would adequately articulate the environmental-management claim, whether the applicants could establish the relevant facts, or whether a fresh proceeding would be procedurally available in practice. The majority's reasons concern the special leave applications and the state of the pleadings before it, not the eventual merits of any properly framed claim.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAUDRON, McHUGH, KIRBY, HAYNE AND CALLINAN JJ
Matter Nos P31 of 1997 and P32 of 1997
SOUTH-WEST FOREST DEFENCE
FOUNDATION INC APPLICANT
AND
EXECUTIVE DIRECTOR OF THE
DEPARTMENT OF CONSERVATION
AND LAND MANAGEMENT & ANOR RESPONDENTS
Matter No P33 of 1997
BRIDGETOWN-GREENBUSHES
FRIENDS OF THE FOREST INC APPLICANT
AND
EXECUTIVE DIRECTOR OF THE
DEPARTMENT OF CONSERVATION
AND LAND MANAGEMENT & ORS RESPONDENTS
South-West Forest Defence Foundation v Department of Conservation and Land Management; Bridgetown-Greenbushes Friends of the Forest v Department of Conservation & Land Management (No 1)
(P31-1997, P32-1997 and P33-1997) [1998] HCA 34
2 April 1998
ORDER
Applications for special leave to appeal dismissed.
On appeal from the Supreme Court of Western Australia
Representation:
J T Schoombee for the applicant (instructed by Environmental Defender's Office of Western Australia)
R J Meadows QC and R M Mitchell for the respondents (instructed by Crown Solicitor for Western Australia)
Matter No P33 of 1997
G M G McIntyre for the applicant (instructed by Environmental Defender's Office of Western Australia)
R J Meadows QC and R M Mitchell for the respondents (instructed by Crown Solicitor for Western Australia)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
South-West Forest Defence Foundation Inc v Executive Director of the Department of Conservation and Land Management and Anor
Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management & Ors
Practice and Procedure – Special leave to appeal from decision to strike out pleadings – Grounds for refusal – Nature of pleadings – Even if leave granted, applicants could only obtain right to replead – Previous judgment would not preclude bringing fresh proceedings.
Environmental law – Nature of obligations under environmental management plans.
Conservation and Land Management Act 1984 (WA), s 33.
Environmental Protection Act 1986 (WA), s 47.
Wildlife Conservation Act 1950 (WA).
GAUDRON, McHUGH, HAYNE AND CALLINAN JJ. The applicants seek special leave to appeal from a decision of the Full Court of the Supreme Court of Western Australia, striking out their statements of claim in three actions. The pleadings that were struck out were long and complex documents in a form which was likely to embarrass the fair trial of the proceedings. The Full Court’s decision to strike out the pleadings can be supported on that basis.
The Full Court granted the applicants leave to replead to a very limited extent only. The applicants chose not to exercise that leave for reasons which it is not necessary to examine.
As argument developed in this Court, it appeared that there were three aspects to the case which the applicants sought to raise. Essentially, the first was that the first respondent was bound to identify, locate and seek to conserve endangered flora and fauna or, alternatively, to take reasonable steps to do so, before logging in the areas identified in the pleadings. The applicants wish to contend that this obligation arises from two separate sources: first, the Conservation and Land Management Act 1984 (WA), s 33, in combination with the Forest Management Plan made up under that Act; and secondly, the Environmental Protection Act 1986 (WA), s 47, in combination with commitments given in relation to a proposal to amend an earlier Forest Management Plan made under the said Conservation and Land Management Act.
The applicants also wish to contend that the first respondent has not taken reasonable steps to identify or to locate or to seek to conserve endangered flora and fauna, and that they are entitled, amongst other relief, to an injunction restraining logging activities which will render it impossible for the first respondent to discharge that duty. This was not the way in which the pleadings were understood in the Full Court. And, on any view, they would need to be recast in order to make that case clear.
The second aspect of the case asserts a breach of a duty to liaise with the local community. That duty turns upon the terms of commitments given in relation to the proposal to amend the earlier Forest Management Plan, to which reference has already been made. The meaning and effect of those commitments are not matters which should attract the grant of special leave.
The third aspect of the case is concerned with the Wildlife Conservation Act 1950 (WA). The applicants contend that the respondents, their agents and contractors are bound by the flora and fauna protection provisions of that Act and that the proposed logging activities would involve a breach of those provisions. It is clear, however, that the relevant provisions simply proscribe activity undertaken without a licence1 or without the written consent of the Minister. It is not pleaded that no licence will be granted or no consent given. Moreover, it is difficult to assume that if required, none will be granted or given. In these circumstances, the issues raised with respect to the raise matters which border on the hypothetical and are not appropriate to attract the grant of special leave.
(a) the circumstances in which declaratory or injunctive relief should be granted to enforce environmental law where that law is supported, as here, by criminal sanctions11; and
(b) the rule of construction for deriving the intention of Parliament to bind the Crown to conform with special environmental plans such as the management plan in issue in these proceedings12.
These are important questions which warrant the time and attention of this Court. Not least do they do so, given that the time has been set aside and the attention has already been fully engaged on the question for a day and a half.
It would be tempting to reject these applications on the basis that they do not represent suitable vehicles for grants of special leave. Pleading questions, as I have said, are often tedious and usually unpleasant. The questions formulated in this case were very numerous and detailed. The issues, and many of the facts and statutory provisions, were elaborate and sometimes obscure. Yet behind the applicants are a number of important questions of environmental law, practice and approach. There are also a number of forests which, if the applications are refused, may stand at risk of conduct which the applicants say, with arguable justification, does not comply with the law of Western Australia. The applicants’ cases will not then be heard on their merits in these proceedings. They are closed off in these proceedings from a hearing. The practicalities, not least those of costs, make it tolerably clear that another proceeding, starting from the beginning, would not be likely.
This is a result with which, most respectfully, I do not agree. I would favour continuing with the hearing. At the point at which the argument was stopped, I was in favour of grants of special leave to appeal. Indeed, at that stage, I was distinctly in favour of answering several questions in a way favourably to the applicants, allowing the appeals and permitting the applicants to replead freed from the unacceptable limitation which the Full Court imposed, in my view incorrectly, on that facility.
s 16(1). ↩
s 23F. ↩
Tampion v Anderson (1973) 48 ALJR 11; 3 ALR 414. ↩
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; cf Rajski v Powell (1987) 11 NSWLR 522 at 524, 538. ↩
Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 92. ↩
See Native Vegetation Conservation Act 1997 (NSW), ss 18-19, 24-36; Water Resources Act 1997 (SA), ss 9(3)(e), 9(4), 90-115; Water Act 1989 (Vic), ss 30, 64A; Catchment and Land Protection Act 1994 (Vic), ss 23-36. ↩
Robinson, "International Trends in Environmental Impact Assessment" (1992) 19 Boston College Environmental Affairs Law Review 591 at 597-602; Raff, "Ten Principles of Quality in Environmental Impact Assessment" (1997) 14 Environmental and Planning Law Journal 207. ↩
Conservation and Land Management Act 1984 (WA), s 33(3). ↩
See Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 526-530; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 35-36, 41-42, 44, 57, 62, 72; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 680; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 558; (1994) 55 FCR 492 at 514; 127 ALR 617 at 638-639; (1995) 55 FCR 516 at 553; 127 ALR 580 at 614-615; (1997) 93 LGERA 436 at 445-446.
South-West Forest Defence Foundation
Department of Conservation and Land Management
(1998) 154 ALR 405
(1998) 72 ALJR 837
(1973) 48 ALJR 11
(1949) 78 CLR 62
(1964) 112 CLR 125
(1987) 11 NSWLR 522
(1908) 7 CLR 76
(1980) 146 CLR 493
(1981) 149 CLR 27
(1982) 149 CLR 672
(1995) 183 CLR 552
(1994) 55 FCR 492
(1995) 55 FCR 516
(1997) 93 LGERA 436
(1995) 37 NSWLR 81
(1996) 67 SASR 410
(1973) 133 CLR 242
(1990) 171 CLR 1
(1992) 8 WAR 64
Applications for special leave to appeal dismissed.
The issues raised by the first aspect of the case to which reference has been made are not, however, hypothetical. Moreover, we are not persuaded that the applicants' contentions in respect of this aspect of their case are necessarily beyond argument. That is, we are not to be taken as concluding that a pleading which conformed to the relevant rules of court and which alleged such a case should be struck out before trial. Other considerations may arise with respect to the applicants' claimed declarations.
And it is to be noted that the Solicitor-General for Western Australia has accepted that the judgment that has been entered in the present action does not preclude the bringing of a fresh proceeding3 with pleadings which identify the points to be argued with precision and without needless and distracting elaboration. It is clear that the most that the applicants could obtain by way of relief from this Court is the right to replead their case, a case which, as already indicated in part, turns on the legislation to which reference has been made and the particular terms of the Forest Management Plan and the commitments made in the proposal to amend the earlier Forest Management Plan.
It is said that the Court should rule on the issues that have been debated because the parties are here and the issues have been exposed. It is true that the issues have been exposed, save for that relating to standing upon which the applicants were successful below. However, the special leave procedure is not to be circumvented on that account. Moreover, it is to be remembered that it was said by Chief Justice Brennan, when this matter came before a bench of three in December last year, that the argument would proceed before this Court and it would be left to the Court at the end to say whether or not special leave would be granted or refused and, if granted, whether the appeal would be allowed.
In the circumstances, a majority of this Court is convinced that this is not an appropriate case for the grant of special leave in the circumstances which have been elaborated.
KIRBY J. I regret that I do not agree with the conclusion which has been reached by the majority or with the orders which the majority favour.
The Court has sat to hear a series of questions argued, as earlier stated by Justice Toohey, and as adjunct to applications for special leave. Two and a half days have been set aside for the hearing. Self-evidently, this is much longer than the time ordinarily granted by this Court for special leave hearings. Already argument extending over nearly a day and a half has been heard; although the principal arguments of the respondent have not yet been reached. The applicants have provided full written submissions on all issues, as has the respondent. The application papers which were filed run into hundreds of pages. The parties are from Western Australia. They have accepted an allotment of time for a hearing before the Court in Hobart. One can only imagine the costs that have been involved to all concerned. Clearly, they would run into many thousands of dollars. In my opinion the Court should conclude the hearing and, for that purpose, sit for the balance of the time allocated.
The question is whether arguable special leave points have been revealed by this stage of the argument. In my view, they have. What is sought is not an advisory opinion from this Court, but orders setting aside the orders of the Full Court of the Supreme Court of Western Australia. Unless the orders of that court are set aside, they will, in effect, terminate the proceedings for relief brought by the applicants. Even if the orders of the Full Court were interlocutory in a technical sense, unless they are set aside by order of this Court, the practicalities are, as it seems to me, that any attempt by the applicants to commence afresh in the courts of Western Australia would be doomed to fail. In my opinion, this Court should accept that reality.
The elucidation of pleading questions is usually tedious, whether it arises in a practice court or in the highest court of the country. But pleadings stand at the gateway to a court. Unless the applicants can be permitted to plead a case, they may be denied access to the remedies which they say the law affords them.
Conformably with principles, including principles stated by this Court4, a party’s pleadings should not be struck out except in a manifestly clear case, relevantly where the pleadings do not reveal a cause of action known to the law. Even then a party should ordinarily be permitted to replead where the error which has been shown is one of the expression of the cause of action, not the existence of a cause of action.
It is true that the case before this Court, as presented by the applicants, concerns statutes and subordinate legislation of the State of Western Australia. The elucidation of such legislation is ordinarily left to the Court of Appeal or Full Court of the jurisdiction concerned. However, a number of points, in my view, lift these applications out of the ordinary. I will mention a few of them that seem to me to be the most important.
First, in my view (and necessarily subject to the hearing of full argument) serious errors of law have been revealed in the courts below which, in effect, deny the applicants access to the court on their pleadings and thus to orders according to law. Obviously, it is a serious step to prevent a party, for defects in pleading its case, from having a hearing and determination of that case on the merits5.
Secondly, at least arguably, the legislation which has been construed here is common, or at least similar, to legislation in other jurisdictions of Australia6. Environmental legislation of the kind which we have explored in this hearing is now quite common in this and other countries7. The elucidation of the way in which parties claiming an interest can enforce, as against the Executive Government and its agencies, environmental plans, such as the management plan principally in question in these proceedings, is an important question. It is one on which this Court has not previously passed. The management plan may appear unusual to those nurtured in more traditional expression of subordinate legislation in Australia. However, by command of the Parliament of Western Australia, the management of the land referred to in the management plan in question here must be carried out in accordance with the management plan8. The applicants say, with arguable justification, that that has not occurred.
These proceedings therefore represent a suitable vehicle for allowing an exploration of the approach which should be taken in such cases. Unless corrected, if it be wrong, the holding and approach of the Supreme Court of Western Australia will stand as a serious obstacle to the enforcement of such management plans in that State, and possibly in other parts of Australia as well. It will encourage the notion that such management plans in environmental matters are mere exhortations and either not justiciable, or ultimately unenforceable rules made under the authority of the Parliament concerned and, thus, not necessarily to be obeyed by the Executive Government and its agencies as Parliament apparently requires. If that is the law it is important that Parliaments throughout this country, those concerned with the environment and indeed everyone else should know what an empty gesture is thereby established. If it is not the law, the Executive Government and its agencies should be held to the obligations ostensibly demanded by Parliament to protect the environment.
Thirdly, the respondents came to argue an issue of standing of the applicants9. Their counter challenge was raised by way of an application for special leave to cross appeal. That question too, is an important one: whether organisations, such as the applicants, have the standing on behalf of concerned citizens, many but not all living in the vicinity of the areas affected, to approach the courts for orders requiring enforcement of public environmental law. This is a developing area of the law10. These applications afford a suitable vehicle for considering that question. The question is one important to courts throughout this country. If the applicants do not have standing, as the respondent claims, that is also a matter which should be made clear by this Court so that, if desired, reformatory legislation can be considered and enacted and, if not, the respondent and those in a like position can be spared from legal process.
Fourthly, there are other important legal questions which have been argued in full by the applicants, but not yet by the respondent. In my opinion, they would alone attract a grant of special leave. These include
Brennan, "The Purpose and Scope of Judicial Review" (1986) 2 Australian Bar Review 93 at 100; Australian Law Reform Commission*, Standing in Public Interest Litigation, Report No 27* (1985); Australian Law Reform Commission, Beyond the door-keeper: Standing to sue for public remedies, Report No 78 (1996). ↩
cf John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 84, 99-100; Kirklees MBC v Wickes Building Supplies Ltd [1993] AC 227 at 270-271; Webster v The Bread Carters' Union of NSW (1930) 30 SR (NSW) 267 at 273-274. ↩
See District Council of Kingscote v Kangaroo Island Eco Action Inc (No 1) (1996) 67 SASR 410 at 419-420; cf Scurr v Brisbane City Council (1973) 133 CLR 242 at 256; Bropho v Western Australia (1990) 171 CLR 1 at 28; Prineas v Forestry Commission of NSW (1984) 53 LGRA 160 at 163; West Australian Field and Game Association v Pearce (1992) 8 WAR 64 at 71-78. ↩