decision

South East Forest Rescue Inc v Forestry Corp of New South Wales - decision

Litigation

Sabin

Sabin Litigation

Filing Year For Action

This case was brought by the South East Forest Rescue (SEFR) against Forestry Corporation of New South Wales (FCNSW) on January 15, 2024. SEFR sought an order restraining FCNSW from conducting any forestry operation unless “broad area habitat searches” are conducted in a manner that includes particular searches for “nest, roost or den trees.” The conditions sought by the SEFR aimed to protect the endangered species of Petauroides volans (the Southern Greater Glider) and the vulnerable species of Petaurus australis (the Yellow-bellied Glider) and Petaurus norfolcensis (the Squirrel Glider). FCNSW argued that the SEFR does not have common law standing to bring civil enforcement proceedings, in seeking to enforce compliance with the requirements of an integrated forestry operation approval under Part 5B of the Forestry Act.

On February 7, 2024, Justice Pritchard of the New South Wales Land and Environment Court concluded that the SEFR did not have standing. The court explained that it was undisputed that the SEFR sought to enforce compliance with the requirements of the Coastal Integrated Forestry Operations Approval, which makes the case a civil enforcement proceeding. Based on precedents, the purpose of the Forestry Act, the context and language of §§ 69SB and 69ZA, and the principle of legality, the trial court held that a private person or entity can have standing at common law to bring proceedings to enforce compliance with an integrated forestry operations approval, notwithstanding the allegedly conflicting language of § 69ZA, if the person or entity has a "special interest" in the subject matter of the proceedings. Yet, the Court found no standing of the SEFR because: it sought relief in relation to operations outside its usual geographical area of concern; it was deemed to be formed for the basis of ending native logging, not the protection of gliders; the evidence was unclear as to the nature, activities, knowledge and experience of its members in their pursuit of SEFR’s objects; and its concern for gliders was deemed only to have been recently manifested.

On May 16, 2024, the Judges of Appeal from the New South Wales Court of Appeal—Justice Griffiths, joined by Justices Adamson and Basten—overturned the decision of Justice Pritchard. In interpreting the language of §§ 69SB and 69ZA of the Forestry Act and §§ 13.14 and 13.14A of the Biodiversity Conservation Act, the court found that the provisions do not preclude private persons or entities from bringing civil enforcement proceedings in relation to integrated forestry operations. The court explained that  a clearer language manifesting the legislature's intent is necessary to oust common law standing, which will abrogate or curtail fundamental rights. The court further found that a special interest to demonstrate common law standing in the absence of some private right or special damage is available in this case. Explaining that whether particular steps or activities are sufficient to demonstrate a special interest are fact and context specific, the court found the SEFR as having a special interest based on its long history of taking active steps and concrete action in relation to its beliefs and concerns, namely a deep concern regarding logging and its effects on the welfare of forest-dependent threatened species, including the Greater Glider.

On April 9, 2025, Justice Gageler, joined by justices Edelman, Steward, Jagot, and Beech-Jones, of the High Court of Australia, upheld the decision of the New South Wales Court of Appeals. The court held that persons or entities with a special interest can enforce duties and obligations imposed by an integrated forestry operations approval granted under Part 5B of the Forestry Act, notwithstanding the individual not being a government entity.