Snowy Mountain Bush Users Group Inc v Minister for the Environment [2024] NSWSC 1040

Supreme Court New South Wales

Medium Neutral Citation: Snowy Mountain Bush Users Group Inc v Minister for the Environment [2024] NSWSC 1040 Hearing dates: 1 & 2 July 2024 Date of orders: 21 August 2024 Decision date: 21 August 2024 Jurisdiction: Common Law Before: Davies J Decision: (1) Extend time for the plaintiff to commence the proceedings to 7 May 2024. (2) Dismiss the amended summons. (3) The plaintiff is to pay the defendants' costs. Catchwords: ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – materiality – amendment to the Kosciuszko National Park Wild Horse Heritage Management Plan to permit aerial shooting of wild horses in the Kosciuszko National Park - proceedings for an injunction and an order in the nature of certiorari relating to the amendment of the Plan – whether representations made by the Secretary of the Department to the Minister were misleading and/or contained a material error causing the Minister to commit jurisdictional error – where animal welfare was a mandatory consideration but not the only nor the most significant consideration – where animal welfare considerations were taken into account by the Minister – where Minister was provided with relevant documents and information by the Secretary – no jurisdictional error ADMINISTRATIVE LAW – ground of review other than procedural fairness – unreasonableness – general test – whether the decision of the first defendant to approve aerial shooting in all of Kosciuszko National Park lacked an evident or intelligible justification and was therefore unreasonable – where the higher standard of legal unreasonableness in Adelaide City Corporation was the appropriate test – where aerial shooting would comply with relevant animal welfare legislation – where standard operating procedure would be developed with the RSPCA and relevant specialists and adapted for use in Kosciuszko National Park – not the role of the Minister to decide on the operational matters of aerial shooting – decision not unreasonable ADMINISTRATIVE LAW – ground of review other than procedural fairness – whether the method of aerial shooting being deployed is inconsistent with requirements to accord with national standard operating procedures, animal welfare assessments and animal welfare legislation – where national standard operating procedures does not prohibit aerial shooting – where previous national standard operating procedures were inconsistent with scientific developments – where implementation of aerial shooting is not rendered invalid or unlawful by the method of implementation – where evidence established that an animal welfare assessment had been carried out - method of aerial shooting not inconsistent with requirements ADMINISTRATIVE LAW – standing – equitable remedies – special interest – associations and organisations – whether the plaintiff had a special interest in bringing the proceedings – where plaintiff has existed for 20 years and its purpose relates to the welfare and heritage of the Kosciuszko National Park – where plaintiff was significantly involved in the making of the Kosciuszko Wild Horses Heritage Act 2018 (NSW) – where plaintiff was identified as a major stakeholder – common law principles not excluded by s 193 of the National Parks and Wildlife Act 1974 (NSW) – plaintiff had standing to bring the proceedings CIVIL PROCEDURE – time – extension of time – the claims brought by the plaintiff were subject to a limitation period of 3 months after the date of decision – claims were brought 6 months after the date of decision – whether an extension of time should be granted – where the matter is of significant public interest and raises sufficiently arguable issues – where there was little to no prejudice to the defendants – where the delay was to the benefit of the defendants – extension of time granted Legislation Cited: Kosciuszko Wild Horse Heritage Act 2018 (NSW) ss 4, 5, 6, 8, 9, 10, 11, 12 Kosciuszko Wild Horse Heritage Bill 2018 (NSW) National Parks and Wildlife Act 1974 (NSW) ss 72AA, 81, 193 Prevention of Cruelty to Animals Act 1979 (NSW) ss 4, 5 Uniform Civil Procedure Rules 2005 (NSW) r 59.10 Cases Cited: Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 Bateman's Bay Local Aboriginal Land Council & Anor v The Aboriginal Community Benefits Fund Pty Ltd & Anor (1998) 194 CLR 247; [1998] HCA 49 Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; (2023) 408 ALR 381 Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11;(2024) 98 ALJR 594 Neilson v Secretary, Department of Planning and Environment [2024] NSWCA 28 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50 South-East Forest Rescue Inc v Forestry Corporation of NSW (No 2) [2024] NSWCA 113 VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143; [2021] VSCA 195 Texts Cited: Nil Category: Principal judgment Parties: Snowy Mountain Bush Users Group Inc (Plaintiff) Minister for the Environment (First Defendant) Secretary of the Department of Climate Change, Energy, the Environment and Water (Second Defendant) Representation: Counsel: O Jones & J Tyler-Stott (Plaintiff) G Wright SC and I King (Defendants)