Bob Brown Foundation Inc v Minister for the Environment [2022] FCA 498

FEDERAL COURT OF AUSTRALIA

Bob Brown Foundation Inc v Minister for the Environment [2022] FCA 498 File number: TAD 5 of 2022

Judgment of: MOSHINSKY J

Date of judgment: 2 May 2022

Catchwords: PRACTICE AND PROCEDURE – application for interlocutory injunction – where the second respondent (MMG) made a referral under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in relation to certain preliminary design and assessment works – where a delegate of the Minister for the Environment decided that the proposed action was not a "controlled action" provided it was undertaken in a particular manner, as specified in the decision notice – where the "manner" requirements did not include specific measures to protect the Tasmanian Masked Owl – where the applicant sought judicial review of the decision of the delegate – where the applicant sought an interlocutory injunction to restrain MMG from undertaking the proposed action – whether prima facie case – whether balance of convenience favoured the making of an injunction order – held: application for interlocutory injunction dismissed

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 68, 74A, 75, 77, 77A, 156B, 391, 475, 479 Environment Protection and Biodiversity Conservation Regulations 1999 (Cth) Federal Court of Australia Act 1976 (Cth), s 23

Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd (2013) 305 ALR 363 Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; 160 LGERA 1