Re Bridgetown-Greenbushes Friends of the Forest Inc. v Executive Director of the Department of Conservation and Land Management and ORS P33/1997 [1998] HCATrans 91 (2 April 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth Nos P31 and P32 of 1997

B e t w e e n -

SOUTH-WEST FOREST DEFENCE FOUNDATION INC

Applicant

and

EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT

First Respondent

THE STATE OF WESTERN AUSTRALIA

Second Respondent

Office of the Registry

Perth No P33 of 1997

B e t w e e n -

BRIDGETOWN-GREENBUSHES FRIENDS OF THE FOREST INC.

Applicant

and

EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT

First Respondent

THE MINISTER FOR THE ENVIRONMENT

Second Respondent

THE STATE OF WESTERN AUSTRALIA

Third Respondent

Applications for special leave to appeal

GAUDRON J

McHUGH J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON THURSDAY, 2 APRIL 1998, AT 10.15 AM

(Continued from 1/4/98)

Copyright in the High Court of Australia

GAUDRON J: Yes, thank you, Mr Schoombee.

MR SCHOOMBEE: As it pleases the Court. Your Honours, as a result of issues raised by the Bench yesterday we prepared two documents which I would seek leave to refer you to. The first is the applicant's proposed questions. These questions are really based and modelled upon our version that was put up to his Honour Justice Toohey but not accepted and hopefully, in our respectful submission, it would raise the issues we say there are for the Court to decide, that is the substantive issues.

KIRBY J: I do not see the issue of standing referred to there. Where is that? These are the issues you wish to raise?

MR SCHOOMBEE: Yes. I think the standing issue Is probably defined in a single question in the present matter in the questions that are said to have been before you.

GAUDRON J: Yes. We understand those, yes. The second document is your amended statement of claim?

MR SCHOOMBEE: Yes, your Honour, and I would suggest just taking you to the amendments. I also explain that one of the reasons why the document is in any event shorter, it is not only because of the scissors applied to paragraph 33 discussed yesterday, but we have also taken out the dead wood in the pleading matters that are not before the Court, Export Control Act 1950 and similar matters.

GAUDRON J: So this is not an actual document, as it were. It is not the document that appears on the Court record. It is simply a document as it will be some day?

MR SCHOOMBEE: Yes.

KIRBY J: If you are given leave to re-plead.

MR SCHOOMBEE: Yes, that is right.

KIRBY J: This is your present proposed re-pleading?

MR SCHOOMBEE: That is right and following the suggestions from the Bench it is actually based on the pleading that is before the Court, but we have pruned it. We have not marked it up in a formal way but I will take your Honours to the changes.

GAUDRON J: Yes, thank you.

MR SCHOOMBEE: On page 3, firstly, under paragraph 4(a) and then 4(b) - we have, by the way, retained the numbering so as not to make it confusing with the existing pleading - we refer there paragraph 4(a) is unchanged but then we say in paragraph 4(b) that the said listing, that is the National Heritage listing, is based on the fact that Jane Forest has these values and we then tie that in to a reference to the Forest Management Plan which does refer to that aspect and I have taken your Honours to the relevant passage in the Forest Management Plan.

The next material change - and that is excluding deletions to take away dead wood - occurs in paragraph 28 on page 10. Paragraph 28, the first part is the same, the first quotation, but we have also now inserted what the management plan actually provides in relation to the main provision on which we are relying, that is to identify, locate and seek to conserve, and then we plead the relevant duty we say arises from that in paragraph 29. We say to achieve this objective the defendants have a duty in terms of the management plan to take reasonable steps to identify, locate and seek to conserve threatened or endangered flora and the rest.

The following paragraphs dealing then with the purported execution of their logging operations or logging plans remain the same and the next change then is in paragraph 33 which was in discussion - that is on page 12 - yesterday. That deals with the pleading of the duty as such. Paragraph 34 deals with the relevant considerations and we have prefaced that by adding in "Further and in the alternative" and then the rest of the pleading, the main part remains the same until over the page where we have specified what we say are the considerations to be taken into account by non-referential pleading except in the second paragraph.

We say that they had to consider whether there are threatened or endangered flora, fauna or communities in the areas affected by the logging and they have to consider the national estate values. Then we plead the breach of the failure to take into consideration relevant considerations in paragraph 35 and we have explicated what we say there. We say that they have failed to consider these matters because they have, firstly, subparagraph (a), failed to take reasonable steps to inform themselves and then, secondly, by adopting the policy that we discussed yesterday of regarding clear felling and associated logging operations as an acceleration of natural processes.

As far as the environmental conditions are concerned, the essential pleading, that is in paragraph 36 and 38 setting up the now relevant conditions, remains the same. The change occurs on page 15, if I may respectfully invite your attention to that, under paragraphs (c) and (d), and that pleading models the breach of the duty under the CALM Act, that is that they are under a duty to take reasonable steps and they have failed to do so. The other matter that there is a change in the pleading, although that is more of a formal matter, for the convenience of the Court we have actually put in under the Wildlife Conservation Act not only the flora pleading that was in the present consolidated pleading, but also the fauna provisions that had suffered - they had been a casualty at an earlier stage of the process, but we have always pursued that matter. So the Wildlife Conservation Act now sets up the two aspects of that legislation, namely the flora provisions and the fauna provisions.

GAUDRON J: Did I not understand you correctly to say yesterday that you were only concerned with one of them?

MR SCHOOMBEE: No, I said, with respect, I would only be arguing one of them. I would only be arguing the flora.

GAUDRON J: If you are only arguing one, we are only concerned with one, are we not?

MR SCHOOMBEE: Yes, but, with respect, the pleading reflects what our case is. My learned friend, Mr McIntyre will deal with that aspect.

GAUDRON J: I see, yes, thank you.

MR SCHOOMBEE: I apologise if I had confused you in that respect. The only casualty at this stage that I am aware of of the word processing mix and match is that we have not put in the prayers relating to the fauna provisions, but they would model on the last page, page 17, the two prayers under (c) and (d) and so there will be an equivalent prayer and I am quite happy to substitute page 17 at some stage just to put it in properly, prayer (c) and (d), that I really should have two equivalents of like dealing with fauna.

There are two further matters, if I may, that I would just like to deal with flowing from yesterday's matter. We have handed to the Court copies of Order 56, that is the judicial review order in the Supreme Court, and the relevant rule which relates specifically to prohibition is Order 56 rule 8(3) which is on page - this is an extract from Seaman's book on Civil Procedure - it is on page 10,953 and that gives the court in prohibition proceedings - it says:

When any question or issue of fact arises upon the affidavits the Court may give such directions as it thinks fit for the determination of the question or issue by trial or inquiry.

If I may just make, further to that, two very brief observations. So in this case the court would in any event, I do not think, have any choice to order pleadings and we would say that the matter that has been raised, the possibility of seeking prerogative relief, with respect, if there is a proper case to be pleaded, we should be allowed to plead it in this case - - -

GAUDRON J: I do not know about - I do not think it is entirely at large, you see. If prerogative relief is available, why would equitable relief be available, if it is covering exactly the same area? That is essentially what you seek, a declaration and an injunction, and, I mean, it seems to me what you are really trying to do in this action is bypassing traditional common law remedies for a new equitable public law remedy.

MR SCHOOMBEE: Your Honour, with respect, the Australian practice differs from certainly the English practice where there is a rule in O'Reilly v Mackman that if you have to - but a much criticised rule - if you can bring judicial review proceedings, you should bring them. That is, with respect, not the Australian practice that - - -

GAUDRON J: It is not a question of practice. It is a question of the nature and circumstances in which equitable relief is available.

MR SCHOOMBEE: Your Honour, with respect, that is a matter we would say for the trial judge if he or she would decide in the exercise of his or her discretion whether to grant relief.

GAUDRON J: It really does seem to me to highlight the wholly inappropriate nature of these proceedings but - - -

MR SCHOOMBEE: Because it is directed at large disputes of fact. If the matter proceeds on pleadings under the judicial review areas, there will be no substantial difference for the simple reason, with respect, on the question of standing, that the Full Court of the Western Australia Supreme Court that they apply the special interest test in any event.

GAUDRON J: The difference may well be one of standing because there would be no difficulty about standing for prohibition and mandamus.

MR SCHOOMBEE: With respect, your Honour, that is not the view taken by the Supreme Court of Western Australia which, as we have outlined in our submissions, following the general trend, the standing requirements are broadly the same and in the Helena Valley Case the Full Court specifically referred to - - -

GAUDRON J: Let us talk about the Australian law at the moment rather than - - -

MR SCHOOMBEE: Yes, I am talking about the Australian law when I say there is a general tendency which we have outlined in our submission and has been traced fully by his Honour Justice Gummow, for instance, in the Marine Trade Union Case where he made the point that there is a broad assimilation in relation to standing of legal and equitable remedies and it has also been - - -

KIRBY J: Which case is that?

MR SCHOOMBEE: I will just refer you to the standing...... It is the authority No 8 on our list, that is the matter of Australian Institute of Marine and Power Engineers - - -

CALLINAN J: Mr Schoombee, I thought yesterday you expressly said that you would not wish to pursue any of the prerogative remedies, that you then said that there were some procedural difficulties and other considerations about which you had formed a considered view. Now, I think that is correct, is it not? You did say - - -

MR SCHOOMBEE: Yes, absolutely so. I am just, with respect, your Honour, responding to another point still why do you not go, but the argument is that our considered view was it was inappropriate, it was conduct-based or action-based matters we were going against, not a decisional structure like proceeding with an inquiry and there were formidable matters in trying to raise that on affidavit and that was our considered view.

CALLINAN J: And you adhere to that view today. I think you are just responding to some questions.

MR SCHOOMBEE: I am absolutely, yes.

CALLINAN J: But you do not in any way resile from that position?

MR SCHOOMBEE: No, no. If the clients were to walk in to me today with a case like this, I will say, no, it is not an appropriate case for prerogative relief for those reasons and also I would say where you are looking at this issue of a duty coupled to or related to criminal law provisions, that is where you say there is unlawful action either because there is some duty in the Act but it is coupled to a criminal prohibition like saying if you take wildlife it is an offence or you breach the ministerial conditions, it is an offence. That is certainly not an area where prerogative relief runs, even on - - -

GAUDRON J: And this equally is not an AD(JR) Act or administrative review case either, which is the decision of Justice Gummow and there is no fiat, but anyway, they are other matters.

MR SCHOOMBEE: Yes, but on the Australian Institute of Marine and Power Engineers, with the greatest of respect, I would commend that judgment to the Court because his Honour Justice Gummow there specifically analysed the standing requirements between what he termed the legal remedies of the prerogative writs and the equitable remedies and said that they were broadly similar and that there were not any reasons to distinguish them. That matter was taken up and in, to my knowledge, the fullest discussion I have come across in English or Australian law, was taken up by her Honour Justice Wheeler in case No 10 on the list, the name of the plaintiff would be familiar to your Honours, namely the Bridgetown Greenbushes Friends of the Forest v Executive Director of the Department of Conservation and Land Management and Others (1997) 93 LGERA 436.

Now, there her Honour specifically dealt with an assertion in this case, in this very case at the first instance, by his Honour Justice Parker that there are historical reasons for differentiating between prerogative relief and declaratory relief and, with the greatest of respect, her Honour in an incisive analysis said that that was not the case any more because declaratory relief notably had developed into a fully fledged public law remedy.

McHUGH J: There is this difference. A stranger can get prohibition, even though the stranger has got no interest in the proceedings.

MR SCHOOMBEE: Your Honour, may I just say I have gone down that burrow because I have written in this area. The High Court has said - well, certainly not in the High Court but that has been qualified. That rule was coupled at common law with patent defects in jurisdiction. There was always in the English courts the stranger that could get prohibition was very much coupled to the ground of review raised. If you could come along and say, "Look, there is this inquiry. They are going off on an entire tangent," it had to be a patent defect. Again, that is a matter that would not be applicable in this case.

We are not raising patent jurisdictional defects such as somebody who has a duty to inquire into Y and then goes off and does X. That is very different and the analysis of the remedies also in this Court of the discretion has certainly confirmed that there is an element of discretion. That rule - and if I might add, her Honour Justice Wheeler actually deals with that very point and she comes to the conclusion that there is doubt whether a real true stranger could come along and get prohibition because when the old English courts refer to strangers, they may have referred to people who were affected by proceedings but were not parties in the technical sense or the narrow sense.

So that is certainly my understanding of what the position of law is and on this point of standing we have actually,in paragraph 18 of our heads on standing, which was our submissions in reply, we have there summarised the law and referred to the provisions where we say there is a strong and, we submit, commendable line of authority in modern Australian law for acceptance that the requirements for standing are the same or at least very similar, regardless of whether the remedy sought originated in equity or the prerogative writs, and we refer there to the Helena Valley Case, the Australian Institute of Marine and Power Engineers Case and then also the Bridgetown Case cited. If I may move on. The final matter that I - - -

GAUDRON J: I should tell you in fairness, Mr Schoombee, I am not following your argument in any respect. I am sorry, I just am not following it. It seems to be all over the place. I do not know what it is directed to. I do not understand how you can come along here with a new document, but please proceed, but proceed in the knowledge none of what you are saying is in my mind able to be related to the issues.

MR SCHOOMBEE: Yes, I will try and bear that in mind, your Honour.

KIRBY J: Just so that I can understand the document you handed up this morning. Do you say that it is the document that arises out of what Justice Murray said that he did not follow up with orders, but that the logic of what he said indicated that he ought to have said, "And I therefore would grant the plaintiffs the opportunity to replead"? This document which you have tendered is what you say, had he done that, you would have been seeking to retender in the Supreme Court of Western Australia?

MR SCHOOMBEE: Yes, and also, if I may add to that an important point, in our respectful submission. We say that what we have now pleaded was inherent in what we have pleaded because we did not set up an absolute duty. We said that there was a duty and then we went on and specified in what respects there was a failure of the duty and whether one uses the words "proper" or "adequate" or "reasonable" - we have chosen "reasonable" now - that was the essence of the pleading. Maybe we have specified too much detail. Maybe paragraph 3 we went too far in saying what they should do rather than stick to what they did not do, which may be a problem, but we say - and that is the purpose of the document that I have put before the Court, is really to explicate that.

McHUGH J: Stripped of the embellishments in the original statement of claim, that is what is in it. That represents what is said in it.

MR SCHOOMBEE: Absolutely.

McHUGH J: Subject to a change in "reasonable" steps for "proper" and "adequate" - - -

MR SCHOOMBEE: Proper and adequate. In fact, the very pleading that we have taken out, the 33 body that is now buried, provisionally buried we hope, actually refers to words like "adequate". That is the basis. So it is certainly not an attempt to plead a new case in any way and the relevant considerations issue, again, we have explicated the point that was before the Full Court, must they only take into consideration readily available information or do you have a duty to inquire as part of that point, and we said you have a duty to inquire and we have explicated that that is the basis on which we say they breached the - - -

KIRBY J: If you got over the suggested problem of standing and got over the suggested problem of declaratory relief and got leave to replead and went to trial, could you just tantalise me in three sentences by indicating the sort of evidence that you would be calling? Would you be calling expert evidence to say that the proper way to discharge the obligation, the management plan, was to send somebody into the forest to check up on the state of endangered fauna and - - -

MR SCHOOMBEE: Yes.

KIRBY J: Is that the sort of case you would be seeking to bring?

MR SCHOOMBEE: Yes, it would be and the evidence would be adjusted to the present pleading, but the nature of the evidence is really foreshadowed in the old paragraph 33 which says what are the areas we would be looking at and it is not only general because we have specifically made the point that you must do pre-logging surveys, and that is really common cause between the parties that you must do pre-logging surveys. We would lead evidence to say you go to the checklists, for instance, that they have used and it does not indicate that these important matters have been checked. That would be the nature of the evidence and, of course, if I may say so, some of that evidence is already before court at an earlier stage in the form of very long affidavit evidence, including expert affidavit evidence.

So substantially if one reads the affidavits, for instance, dealing with the actual practices and the shortcomings, we say, the evidence is there and that would map out where we go. So I may just stress it is not just a - the respondents refer to our pleading as research and monitoring. It is not at that level of abstraction. It deals with what is actually there when they are going to start logging. Then just very briefly, if I may respond to an issue raised by your Honour Justice Hayne concerning the Tampion Case where there was a stay granted of vexatious proceedings and the Privy Council held that that was an interlocutory judgment and, of course, one needed leave and the applicant could not bypass the leave proceedings. Well, of course, the question of whether it is technically interlocutory is in issue but it is not determinative of the issue of special leave in this case, unlike in the Tampion Case.

GAUDRON J: I must say if you can replead it in the court below, I for one would be inclined not to grant you special leave. I just tell you that. It seems to me that you have come up here on a case that is ill-pleaded and you do not attempt to deal with the serious legal issues that are raised, or at least so far as I understand your argument you do not, and if it is a matter that can be recommenced by proper pleadings specifying the significant features of your case and not some new document that has got no status, then I for one will not be granting you special leave as I presently understand the case.

MR SCHOOMBEE: Yes, I understand what your Honour is saying.

GAUDRON J: I mean, the Court is being put in a position where it is being asked to go picking through document after document after document without any coherent process to guide it, as I see it.

MR SCHOOMBEE: Can I just briefly complete the argument on the Tampion Case? In the Port of Melbourne Authority v Anshun Pty Limited (1981) 55 ALJR 96 to 97 this Court in the form of Justices Gibbs, Mason and Murphy considered Tampion and in that case distinguished it from a situation where I think your Honours would be aware of the Anshun principle, somebody tried to relitigate something, and it was held to be a species of res judicata and it was held that that was in any event not relevantly an interlocutory judgment. Now, in this case the Full Court has made findings on specifically defined questions of law. We would be bound by that.

McHUGH J: No, you would not, not if it is an interlocutory judgment. Interlocutory judgments do not bind anybody. If judgments are made in the course of a trial, interlocutory judgments, and then there is a new trial, those judgments are not binding on anybody.

MR SCHOOMBEE: As I said yesterday, if not as a matter of res judicata, but certainly as a matter of realistic precedent where the Full Court has decided those very questions and dismissed the action on the basis of that and those questions were defined as legal questions - - -

McHUGH J: Yes, I am sure you are right as a practical matter.

MR SCHOOMBEE: Well, as a matter of precedent which is the law and - - -

McHUGH J: Yes. The Full Court would no doubt say, "Well, as far as we are concerned, these questions of law are concluded by our decision in the South-West Forest defence case No 1." But the point that is being made to you is that your documentation would at least clarify the issues for this Court to deal with on another special leave application against that decision, if proceedings in the Full Court of Western Australia might be almost formal, but at least there would be something that clarified the issues.

MR SCHOOMBEE: My response to that respectfully is that we say the issues are before the Court.

McHUGH J: Yes, I understand. You say this document that you have handed up this morning, the minute of consolidation, shows the case that you have effectively pleaded stripped of its embellishments.

MR SCHOOMBEE: Yes.

KIRBY J: And I suppose you could say that if you were sent back to start again, (a) you would run into the practical problem of the Full Court's view and (b) a lot of costs would have to be incurred and as the matter is here the more convenient place is to, if the Court is convinced that the Full Court of Western Australia has gone wrong, set aside that order, to put it back on the right track, to say that Justice Murray's logic led to a right to replead and to give that right to replead on the basis of the document which you have now handed up, which you would have handed up if only the Full Court had given you that right - - -

MR SCHOOMBEE: Yes, your Honour. That is exactly why, in fact, one can say, in any practical sense, just as the prerogative writ issue is now practical, the clients under their environmental organisations, the issue discussed in that case, such as Oshlack, there will be no second case, not in the real world outside. As it pleases the Court, in relation to the substantive issues, I have dealt with the matter - the content of the duty, and have also dealt with the issue of relevant considerations. If I may turn to what is stated in our latest summary of questions, question 3 - - -

KIRBY J: Is this basically the list of questions that you announced to Justice Gaudron yesterday at the outline of- - -

MR SCHOOMBEE: Yes, that is right, and that - - -

GAUDRON J: Well, they depart from the questions stated by Justice Toohey, they depart from the questions answered by the Full Court and, again, it is not immediately obvious how they relate to any of the documents which are said to be the pleadings, or the pleadings to be.

MR SCHOOMBEE: We put up a similar document to Justice Toohey. That was rejected. The Crown's version, which had far more detail, far more pleading orientated, was accepted. I have in my brief, and I can supply to the Court, a copy of what we put up to Justice Toohey, which was rejected. The Judge said, "No, I will formulate the questions in this way." We had a long session before him, and the Justice of this Court formulated the questions. I did not formulate them. And I came here to argue those questions because a Judge of this Court had formulated them. There was observations made they may be too long, too scattered, too fragmented, too pleadings orientated. As a result of some suggestion by members of the Bench, we have put up questions which we say raise fundamental issues.

KIRBY J: I think I provoked this, because I said, at the beginning of the case, that I had the same sort of irritation that has been - - -

MR SCHOOMBEE: Yes.

KIRBY J: But I indicated yesterday that there were so many questions, so many subquestions, and you then said, "Well, really they are only a simpler set of questions," and these are they, you say.

MR SCHOOMBEE: Yes.

KIRBY J: Well, we, of course, have to answer the question Justice Toohey asked, because they are the questions before the Court. But do you say that this list of questions represent, in essence, the substantive matters that are before the Court.

MR SCHOOMBEE: Yes, the issues.

KIRBY J: Issues of principle.

MR SCHOOMBEE: Yes, the issues of principle, that is exactly right. They do not have any higher status, and I do not claim any higher status.

KIRBY J: It is the first document that I have ever seen that is numbered in this way. What do the 1, 2, 3, 4, 5, 3, 4 mean? Is that a mistake, is it?

MR SCHOOMBEE: That is a mistake. I apologise for that. That is because it was produced overnight.

KIRBY J: Well, we will just renumber those last ones. I am not complaining. I realise that you are away from your office.

MR SCHOOMBEE: Yes, it seems to be going in diminishing order in the opposite direction, so one looks for the final "1". So, the areas, really, that I wish to address are the areas in Justice Toohey's questions 4, 5 and 6. Already, in our outline of submissions, we have put 5 and 6 together, because we thought you could not really argue them separately, and that is contained - our argument is set out on pages 14 of our outline of submissions.

KIRBY J: This is in the document, Applicant's Written Submissions?

MR SCHOOMBEE: Yes, the Applicant's Written Submissions.

KIRBY J: What page?

MR SCHOOMBEE: Page 14. And the relevant Act - the Environmental Protection Act - imposes an obligation on any proponent - somebody that wants to undertake environmentally-significant action, such as logging in native old growth forests - to put up a plan: what are they going to do to safeguard the environment. And when ministerial permission for that plan is given, the Act provides, under section 45 of the Act, that there are conditions that may be attached to that, which is a familiar pattern for environmental permission. I do not necessarily want to take you there, but I can say that the relevant provision is set out on page 188 of the respondent's book of legislation, and that is section 45(5)(a) of the Act.

We say that creates a duty and, coupled to that duty, there are control measures. There is, under section 47 of the same Act, which your Honours would find on page 190 of that book, a provision which says that if a proponent does not comply with the conditions it commits an offence, 47(1). And there are also control implementation proposals - control of those proposals - section 48. Directives can be given, and there is also a provision even to take over the duty - that is, the State can take over the duty and the condition - perform it and charge the environmental proponent and, in this case, the Department of Conservation and Land Management, CALM, was actually the proponent.

The Full Court decided against us there on the pleading issue, which was very similar - identical to the paragraph 33 of the pleading issue, namely, saying that the conditions do not require the detail that you have pleaded. As I have showed you, the real essence of our pleading was that they had to take reasonable steps and did not do that. The commitments are set out in our pleadings. They are more definite. For instance, they refer specifically to the issue of pre-logging surveys. The Full Court held against us on that point.

GAUDRON J: Now, where is the pleading? Tell me, in one of your documents, where I will find that particular pleading, please?

MR SCHOOMBEE: As it pleases the Court.

GAUDRON J: Any one will do. It makes no sense to me in a vacuum.

HAYNE J: Page 354, will that suffice?

MR SCHOOMBEE: Your Honours now are referring rather to the existing pleading than the one we have put up. Yes, it starts at 354, at paragraph 36(a) but part of the cleaning exercise we have done is to take out paragraphs (b) and further because they are not relevant, as they relate to the proportionary approach.

HAYNE J: (b) to (d) are abandoned, is that right?

MR SCHOOMBEE: Yes, that is right, and, in fact, your Honour, 37 as well.

GAUDRON J: Inclusive?

HAYNE J: (b) to (d) inclusive, and 37, do you say?

MR SCHOOMBEE: Yes. It really commences on paragraph 38, at the bottom of page 356. Those are the relevant conditions, consisting of commitments made by CALM, as proponent, and these run to page 358, at the bottom of page 358, where the breach is pleaded by referring to the matters discussed yesterday in paragraph 33, and that is the pleading, essentially, at the bottom of that page.....that we would adjust in the pleading.

GAUDRON J: So, the commitment on which you rely, is that specified, is it, at page 358 in clause (3) of paragraph 38?

MR SCHOOMBEE: The commitment starts at the top of page 357. There are various commitments. Your Honour will see that, at the top of page 357, the introductory words are:

The said environmental management commitments include -

and then we plead the relevant ones. And, for instance, (cc) under that paragraph is:

to implement the strategy of arranging an inspection to establish whether endangered flora is present before undertaking any activity on CALM land that involves permanent destruction of native flora.

GAUDRON J: And you do not plead that a statement has been served? Do you, or do you not? For the purpose of section 47(1), do you plead that a statement has been served?

MR SCHOOMBEE: By the Minister, yes.

GAUDRON J: You do plead that?

MR SCHOOMBEE: Yes, we do plead that.

HAYNE J: Page 354, 36(a), is that the pleading of it?

MR SCHOOMBEE: Yes. And the relevant statement is the first document in your application books.

GAUDRON J: And then, what is the relief you claim?

MR SCHOOMBEE: The relief we claim is that - a declaration that they will be in breach - we specifically refer to section 47 of the Act, that is on page 369.

KIRBY J: Now, this is an offence, in section 47?

MR SCHOOMBEE: Yes.

KIRBY J: Would a declaration normally be made, that a criminal offence has been - - -

MR SCHOOMBEE: No, your Honour. It could be that is one way of approaching it. But one could also seek a declaration, perhaps more appropriately focusing on the duty, itself; that they are in breach of their commitments.

GAUDRON J: Well, now, I think you had better direct your attention to precisely the sort of equitable relief that is available in the circumstances which you allege, namely, the commission of an offence, and, presumably, subsequent, you allege, do you, that they are in continuing breach, do you?

MR SCHOOMBEE: Yes, because we say they have never fulfilled these environment commitments.

GAUDRON J: After the notice was served.

MR SCHOOMBEE: Yes. The notice really triggers the binding nature of that, so an appropriate declaration would be that they are in breach of those commitments.

GAUDRON J: So, under civil standard, you can have a declaration of the commission of an offence, is that what you are saying?

MR SCHOOMBEE: Well, it would go to the matter of the nature of the commitments. It would not preclude, in any way - - -

GAUDRON J: No, but is that what you are saying, that that is the relief you want?

MR SCHOOMBEE: Yes.

GAUDRON J: You want a declaration that they are in breach of their commitments and have committed an offence.

MR SCHOOMBEE: No, we would not seek a declaration that they have committed an offence.

GAUDRON J: Okay. But you want a declaration that they are in breach of commitments which, on the matters pleaded, constitutes the commission of a continuing offence.

MR SCHOOMBEE: It could constitute that.

GAUDRON J: Well, does it or does it not?

MR SCHOOMBEE: No, but it will depend whether it is proved in a criminal trial in different circumstances.

GAUDRON J: Well, that is precisely the issue that I am asking you to address, whether equity would ever give you a declaration that people have engaged in conduct, or are engaging in conduct, which is a criminal offence. I mean, this is quite different from an injunction to restrain the apprehended commission of an offence, and I, for one, know of no decision in which declaratory relief of that nature has been given, and I see grave problems in the notion that it could be given, but I am asking you, will you address that question?

MR SCHOOMBEE: Yes. We would certainly say that it is open to the courts, and the courts do, from time to time, recognising that it is an extraordinary jurisdiction, grant declaratory relief to say that matters constitute unlawful action, or are in breach of statutory provisions that also carry with them criminal sanctions. That is certainly a case that is done, and I will, if I get the opportunity, refer your Honour more particularly to that in Young's book on Declaratory Orders. There is a whole section on that, that is an extraordinary jurisdiction, but we accept that. That is, however, I point that I would address in this case, why we say this would be a case where it is appropriate that declarations be made dealing with a breach of those management commitments, simply, importantly, because we say there is no realistic chance that these parties will be prosecuted.

GAUDRON J: Why? Is there something in the Act that says that they can only be prosecuted by the Minister?

MR SCHOOMBEE: Yes, they have to be prosecuted under the Act by the Executive Director of the Environmental Protection Authority that can only act with the consent of the Minister.

KIRBY J: Where is that in the Act? Which section?

MR SCHOOMBEE: I think it is also summarised in - there is certainly such a section, if the Court will bear with me.

KIRBY J: Perhaps that could be looked for and announced later. I notice that in the relief that you seek, on page 369 you seek, in paragraph (b):

A declaration that the Defendants are in breach of section 47 of the EP Act -

and then, in paragraph (g):

An injunction restraining the First Defendant.....from.....acting unlawfully in terms of any of the above declarations.

That presumably is the way you are seeking relief. But it would be very unusual, as Justice Gaudron has pointed out, to give a declaration in the terms of (b) because, effectively, by the civil standard, you would be getting a declaration that somebody is in breach of a criminal offence, which would normally attract a criminal standard.

MR SCHOOMBEE: Yes. Yes, we accepted that. But as I said, the focus is really on the obligation which is contained in section 45, and to which is coupled a criminal sanction in section 47.

GAUDRON J: You need to address the question of whether the obligation is in 45 or in 47. But your declaration and your application for injunctive relief relate to 47.

MR SCHOOMBEE: We say that from section 45, which imposes the conditions, flows an obligation to perform those conditions and as his Honour Justice Kirby has pointed out we may seek injunctive relief in respect of those matters but we would also be seeking a declaratory relief that those conditions have been breached.

KIRBY J: Which is the provision in section 45 thatgives rise - - -

MR SCHOOMBEE: Section 45(5)(a) which is at the top of page 188.

HAYNE J: Which is the mechanical provision that the statement is to be served.

MR SCHOOMBEE: And setting out those conditions, we say, under which it may be implemented.

HAYNE J: It tells you what you have got to serve but the obligation, if there be an obligation on the proponent, is contained in 47, is it not?

KIRBY J: I do not see that 45 gives rise to any obligation. It is a procedural matter.

MR SCHOOMBEE: If that is the case, then certainly we are squarely in the area of section 47 and we accept that it an extraordinary jurisdiction for a court to make such a declaration but the - - -

GAUDRON J: I do not know that it is extraordinary. I mean, it is a question of whether there is any or is not any.

MR SCHOOMBEE: No, with respect, there is a jurisdiction. There are cases that confirm that, that you could make a declaration where their conduct involves a transgression of a provision like section 47 that carries a criminal sanction.

GAUDRON J: Any decisions of this Court to that effect?

MR SCHOOMBEE: Sankey v Whitlam dealt with that area.

McHUGH J: Yes, but it all failed. It was the defendants who got the declaration.

MR SCHOOMBEE: Yes, but the jurisdiction was accepted. The Court accepted that. It stressed that there were some exceptional circumstances but in Sankey v Whitlam the Court certainly accepted that there was.....jurisdiction.

McHUGH J: It depends on how you frame your relief. For example, the Factories, Shops and Industries Acts of all the States impose penalty for failing to fence dangerous machinery but there is no reason why you cannot bring an action for damages for breach of the duty to fence even though it is also a criminal offence.

MR SCHOOMBEE: Yes.

McHUGH J: You may well be able to frame relief so that you can injunct logging.

MR SCHOOMBEE: That is what we are seeking as part of the case. The courts are generally - I mean, they may make distinctions between injunctions and declarations - but they have generally treated them in the same way. I think Sankey v Whitlam was a strong case because it dealt specifically with declarations and it dealt with a pending criminal proceeding which is not the case here.

KIRBY J: Let me just understand, your case is Parliament has said this is very important. Parliament has provided a procedure whereby statements can be served that enliven obligations. A statement has been served and notwithstanding that, the offence continues. The only way the offence can be prosecuted is by the very Executive Government that is not conforming to the will of Parliament and there must therefore be a procedure whereby a court of equity can grant an injunctive relief, at least, to prevent the ongoing offence where the body with the power to do so has an interest in, or will not prosecute the offence as an offence.

MR SCHOOMBEE: Yes, and I am indebted to - - -

KIRBY J: Otherwise the Executive Government walks away from the obligations which Parliament has created.

MR SCHOOMBEE: Yes, that is so, your Honour, and I am indebted to the learned Solicitor for pointing out to me that it is actually section 114 of the Act which is contained on page 257 of the book of - - -

HAYNE J: Again, are we not seeing the over-elaboration of an essentially simple idea. The idea which I understand underlies all this, and I would be grateful if you would correct me, is this: the Department is bound to identify, locate and seek to conserve. It is bound to do so because the Forest Management Plan says so. It is bound to do so because the statement says so. It has not. It has not met that duty, therefore enjoin further conduct of the work until they have. Is that the essence of this case that is put forward beneath this welter of words?

MR SCHOOMBEE: That is absolutely so. Certainly, the first part of the proposition.

HAYNE J: What has declaration got to do with it? Why do you need a declaration that section 47 has been breached?

MR SCHOOMBEE: We may well not need it at trial but that is a matter that would be decided by the trial court in all the circumstances and there is a jurisdiction for the trial court. That section sets out - - -

HAYNE J: I must say, at the moment, I am struck by the notion that the statement of claim could be encompassed in about six paragraphs occupying at most a page and a half.

MR SCHOOMBEE: I will certainly take that on board, your Honour. I have pointed out that it is a case of any prosecution will have to be by one departmental head with ministerial consent of another departmental head and it will be tantamount really to a sanction or a motion of no confidence by one State Minister into the running of the department of another State Minister and, with respect, that is also the essence of the argument against any alleged argument - - -

GAUDRON J: Do you plead that there have been no proceedings?

MR SCHOOMBEE: No, certainly no proceedings.

GAUDRON J: But do you plead that? It seems to me that one really - to the extent that you rely on 47(1) that you really are in extraordinarily deep water. Let me put it this way. Assume that there have been proceedings brought by the Minister resulting in an acquittal on the criminal onus. A declaration then, query, a declaration then in the civil jurisdiction that there has been a breach at the suit of your clients.

MR SCHOOMBEE: With respect, your Honour, I accept what you are saying but is that a matter that one would plead in anticipation that there has been no prosecution?

GAUDRON J: I am just asking you, really, to address the problems - - -

MR SCHOOMBEE: Yes, I accept that.

GAUDRON J: - - - in your argument and one of them emerges at this stage.

MR SCHOOMBEE: If we come to trial and the evidence is produced by whoever that there has been a prosecution and an acquittal there, would be not much argument in seeking any form of relief on that. That is not the position.

GAUDRON J: No, but it is not pleaded either and I am just wondering how you - - -

McHUGH J: In theory, do you not have to put your argument this way? You have got to say that section 47 does not merely create an offence. It does two things. It creates a duty and it also creates an offence.

MR SCHOOMBEE: Yes.

McHUGH J: And what you are seeking to do is to restrain a breach of the duty.

MR SCHOOMBEE: Yes.

McHUGH J: You are not really concerned with the offence, is that how you seek to - - -

MR SCHOOMBEE: Absolutely, your Honour. In this section it is actually in one section but in the Wildlife Conservation Act they are actually in separate sections which makes the point and that explains why Bropho was a case where there were offences backing what development was taking place on the.....side. Onus v Alcoa was a case squarely in that area. The sting of the provisions for the preservation of relics was contained in criminal provisions but the court said there was also an obligation not to damage them and his Honour Justice Wilson in Onus specifically addressed that issue by saying - and the relevant reference in the Onus judgment is contained - I am referring to Onus v Alcoa of Australia [1981] HCA 50; (1982) 149 CLR 27, No 20 on our list, and the relevant passage is at 63.

KIRBY J: This is on the alternative criminal prosecution point?

MR SCHOOMBEE: Yes. That is on page 63. The second paragraph there, the learned Judge refers to the fact that there is civil process, there is also criminal provision and he makes the point that:

It is a jurisdiction which must be jealously guarded -

and then he goes on to say:

However, in the circumstances of this case it is a consideration which does not of itself displace the special interest -

and he specifically refers to injunctive relief.

KIRBY J: Here you would be seeking to argue that although jealously guarded, the fact that (a) the offence is ongoing and (b) that it is being performed by officers of the Executive Government and (c) that only they can prosecute the offence, that you cannot bring a private prosecution for that reason that, jealously guarding it, it must still be open to a court of equity to provide injunctive relief.

MR SCHOOMBEE: Yes.

KIRBY J: I think you have conceded that you are in real hot water and difficulty in bubbling away on the declaration.

MR SCHOOMBEE: Yes, that may be a matter where one would not - -

KIRBY J: The real thing you want is an injunction.

MR SCHOOMBEE: Yes.

KIRBY J: And you say that in a trial or perhaps, in a review of a repleading, that is the sort of matter where any trial judge can sort that out.

MR SCHOOMBEE: Yes, can I just very briefly while we are at the point - - -

GAUDRON J: That may be right but at the end of the day if this Court does not refuse special leave and proceeds to embark upon a judgment, there is at least going to be a perception of - if you succeed to any extent, there is going to be a perception that this Court has given its imprimatur to some aspect of your document. This is why I keep complaining to you about this document and about the way you slide over these things. This is a pleading case. It is a case about your pleadings and you just sort of walk away and say, "That is for the trial judge". Well for my part, it is not for the trial judge. It may not be for the trial judge to say whether or not you can get declaratory relief.

MR SCHOOMBEE: Your Honour, we were struck out at a strikeout stage in the Full Court.

GAUDRON J: I know, but now look at the situation which has come about now. This Court has to write a decision about it.

MR SCHOOMBEE: All this Court, in our respectful submission, has to say is that it is arguable on the matter of relief, because you should not

pre-empt what the trial judge would say, that, for instance, the plaintiff can get injunctive relief.

McHUGH J: I thought the conditions had changed in this Court. There was no longer a question of arguable, but whether it was made out as a matter of law.

MR SCHOOMBEE: No. But on the matters of relief, all the questions are phrased, can we get the relief, not argue - - -

GAUDRON J: Do you withdraw, do you now notionally amend your pleadings so that you do not seek declaratory relief for breach of section 47(1)? Otherwise it is a matter that has to be dealt with, as I see it.

MR SCHOOMBEE: No. My short reply to that is, no. I realise that it is an exceptional jurisdiction, but I do not abandon it and we would be in a position at trial to advance that argument.

GAUDRON J: I am asking you to argue it today. It is not apparent to me that this Court could say it is arguable that you could get injunctive relief for breach of 47(1). Either you can or you cannot. Sorry, not injunctive relief - declaratory relief. A declaration that there has, in fact, been a breach of 47(1).

MR SCHOOMBEE: Well, I cannot press it further than that. I can only refer the Court to Sankey v Whitlam, and say that is the case that is the leading authority.

GAUDRON J: Does it say that you could get a declaration that somebody has committed a criminal offence?

MR SCHOOMBEE: Yes.

McHUGH J: I was counsel in Sankey v Whitlam and I cannot remember that. We got the declaration, did we not?

MR SCHOOMBEE: The declaration that there was no offence.

McHUGH J: Yes, that was the apposite.

MR SCHOOMBEE: But there are certainly cases where the courts have said and, I think, one is the Tooths Case, that you could go ahead and get a declaration that conduct will constitute a breach of an infringement.

KIRBY J: Perhaps before the day is out, you might find some authority that supports that proposition.

MR SCHOOMBEE: Just in addition to the factors, and if we then shift to the issue of the injunction - - -

GAUDRON J: No, if you cannot satisfy me as to the law with respect to each of the matters that necessarily falls for decision, then it just seems to me impossible to think this is a matter in which special leave could be granted.

MR SCHOOMBEE: But assuming we have no case on a declaration, why should not the case go ahead on injunctive relief? We are not asking - - -

GAUDRON J: Because you are asking us to write a decision with respect to the declaration and you are refusing to argue it, other than to say - you insist on maintaining your pleadings to the extent that they seek that relief, and then you say, well, I cannot take it any further other than to point to cases which do not seem to deal with the problem.

MR SCHOOMBEE: I will either inform the Court that formally that we abandon the point or I will come up with more direct authority.

McHUGH J: In any event, you would want to amend paragraph (g) of your relief because it is framed in terms of acting unlawfully in terms of the declaration.

MR SCHOOMBEE: Just very briefly on the point of the other issues relating to - that were the involvement of the criminal law, we should also bear in mind that this is an issue where one would seek through an injunction to prevent certain things being happened, namely logging. It is no good to do that to, as it were, bolt the door once the horse has bolted because there is an element of preventiveness in this case and that has been recognised in cases such as the decision of the House of Lords in Kirklees. If you have a preservation order, a tree preservation order, that may be an appropriate circumstance for granting an injunction rather than wait, that the tree be cut down and then, after the event, you bring a criminal prosecution.

This is exactly what, through bringing these proceedings, we have achieved in this case that the logging in those areas did not proceed. It is one thing to go ahead and say, "Oh, somebody could charge them", but the trees would be cut down. In fact, we would have no interest in the prosecution, even if we could get over, technically, the hurdle of a private prosecution.

KIRBY J: What is the House of Lord's decision?

MR SCHOOMBEE: The decision is Kirklees and, perhaps the easiest is it is set out in our written submissions on page 15 at paragraph 4.5. Kirklees MBC v Wickes Building Supplies Limited (1993) AC 257 in the House of Lords and the specific reference and discussion of this issue is at pages 269 to 271.

KIRBY J: That was about tree cutting, was it?

MR SCHOOMBEE: Yes, that was an example specifically given by the House of Lords saying that there was an extraordinary jurisdiction but if you have a tree preservation order, because of the preventative nature of the relief you are seeking, that is a matter that would go to the exercise, for instance, of logistics to grant an injunction.

KIRBY J: Were you telling the Court, and is this a fact, that is knowable to the Court, that by reason of the commencement of these proceedings, the logging of the subject forests will stop. Is that an agreed fact or something that we can properly know?

MR SCHOOMBEE: I would say so. There was certainly an undertaking given that they were not going to proceed with that logging and that they would give us notice if they were going to proceed.

KIRBY J: That is continued up to the proceedings in this Court?

MR SCHOOMBEE: Well, it underwent a change when we lost in the Full Court, but, yes. It is effectively in operation in a lesser extent now, simply it is now an undertaking that they will give us, because they have not logged. They have not logged those areas and there is an undertaking that they will give us 14 days notice that they are going to log. The logging did not proceed. The matter was set down for a hearing and we got the undertaking a minute before the starting time.

On the Environmental Protection Act point, I would like to just finally invite your attention, respectfully, to the actual notice that is contained on page 1 and further of the application books. On page 1, that contains the relevant - to draw your attention to that - the relevant conditions there, notably 1.1 and 2.2, which set out, in conjunction with the Act, the obligation. I would also like to draw your attention - - -

GAUDRON J: There are commitments - where do they appear? Do they appear or are they pleaded?

MR SCHOOMBEE: We have pleaded. If I may invite your attention further to page 8 and condition 18 - that deals with the progress and compliance reports that had to be put up by the proponent, and then also of importance is the subheading there called "Procedure". That says that the EPA, the Environmental Protection Authority, which is also the prosecuting authority effective on the Act:

is responsible for verifying compliance with the conditions contained in this statement -

and it then says that if there is any dispute between the departments, that is to be determined by the Minister for the Environment. This is of importance because that was, with respect, the main point on which the Full Court held that these conditions were not enforceable in any civil court, because the Full Court read that as a judicial review ouster clause. It said that until, and it was put in that way, until such a determination had been made either by the EPA or then by the Minister in case of dispute, the court could not engage, could not deal with the matter.

We say that is, with respect, wrong, because it is not stated in any way to be a pre-condition to any enforceability. The condition does not state it is a pre-condition. Secondly, and going back to an issue raised by his Honour Justice Kirby, the Act says that he will comply with the conditions and the conditions themselves do not say that they are simply subject to ministerial discretion, so we say they should not be in any way read that there are some qualification, that the matter only becomes justiciable once there is a certification. I also say one can contest the argument by saying that - - -

GAUDRON J: Can I just stop you there, though? There seems to me to be another point. The commitments, to the extent that you rely on the commitments, which are not inconsistent with the conditions or procedures contained in this statement, does your pleading deal with that aspect? I am looking at page 1 where the obligation, apparently with respect to the commitments, are those which are not inconsistent, et cetera.

MR SCHOOMBEE: No, we do not deal specifically with that aspect. We do not make an allegation they are not inconsistent with the conditions or procedures.

GAUDRON J: What do you say about it?

MR SCHOOMBEE: We say they are not at all inconsistent. They are environmental commitments given - - -

GAUDRON J: Yes, well, as a matter of pleading?

MR SCHOOMBEE: We say we do not have to negative that. We have pleaded that these commitments were given. We have pleaded that they have been breached.

GAUDRON J: No, but if your duty comes from the statement, as I understand the Act and the pleading?

MR SCHOOMBEE: Yes.

GAUDRON J: The only obligation that that can impose is those commitments which are not inconsistent.

MR SCHOOMBEE: Well, you have a commitment unless there is something in the Act that stops it. That is really the construction that I would deal with, in the notice. We certainly say that it is part of our case they are not inconsistent in any way. And there are, for instance, very specific commitments in the Kerr-Hester Case, which go even more specific than the ones in the Jane Case, but I mention that they operate at a high level of specificity. We say that, really - - -

GAUDRON J: I am just wondering, though, are we in an area where this question has to be decided as on a demurrer because, if so, it may be necessary for us to satisfy ourselves that they are not inconsistent?

MR SCHOOMBEE: Yes, that is the case.

GAUDRON J: It is as on a demurrer?

MR SCHOOMBEE: Yes.

GAUDRON J: So we must satisfy ourselves. The Court must satisfy itself as to that issue.

MR SCHOOMBEE: Well, on the matter as pleaded, we pleaded that there is an obligation. The matter that any issue of inconsistency would be a matter for defence; it surely would not be a matter that we have to satisfy in our pleadings.

GAUDRON J: I do not know about that.

MR SCHOOMBEE: That would certainly be the view I would take of the pleading matter.

GAUDRON J: Yes, well, I do not know. What is your argument? You are arguing a specific obligation?

MR SCHOOMBEE: Yes.

GAUDRON J: Which comes about by virtue of the statement. I would have thought you had to satisfy us that there was no inconsistency, if it is to be determined as on a demurrer.

MR SCHOOMBEE: Yes, the terms in the statement itself, the conditions of procedures impose, relevantly, certain additional requirements. It, for instance, limits how much can be logged. It has specific - for instance, the precautionary approach is put in there. It deals with identification of eco-type conservation areas - bottom of page 2. It deals with an additional area on page 7 - areas that should be protected. It limits how much they can log. So the inconsistency is really that there are specific additional obligations imposed here. It does not give an exemption from the others. So, inconsistency would arise to the extent that there may be a more specific and definite obligation imposed by the conditions itself, or additional, that may cast additional burdens on it and the pleadings link to some of the specific commitments. But there is certainly no exemption given saying, well, the following commitments that you may have given are not applicable. So really the document by its terms would not raise that issue. We say that certainly the same applies for the broad monitoring power in clause 18, that is simply a reporting, a feedback measure, and that does not detract from the binding obligation imposed by Parliament in statute.

GAUDRON J: Could I ask you one thing? Was there a specific proposal put up with respect to the Jane Forest?

MR SCHOOMBEE: Yes, your Honour. Your Honour finds the description of that right at the beginning of the application book, top of page 1.

GAUDRON J: I am seeing the statement.

MR SCHOOMBEE: Yes, and then it says what the statement effectively does.

GAUDRON J: You do not, in fact, plead the proposal, though, or do you?

MR SCHOOMBEE: The proposal is the Forest Management Plans which we have pleaded, yes.

KIRBY J: Where does it mention in this Forest Management Plan the Jane Forest?

MR SCHOOMBEE: The Forest Management Plan applies to all State forests.

GAUDRON J: I am looking at 36(a), which is in respect of the Jane Forest at page 354. I am assuming, perhaps wrongly, that the statement at page 1 is the statement referred to in 36(a), is that right?

MR SCHOOMBEE: Yes, that is the statement.

GAUDRON J: You say the proposal was the Forest Management Plan?

MR SCHOOMBEE: Yes, it says the proponent in relation to the 1987 Forest Management Plan and Timber Strategy.

GAUDRON J: Where do you find that?

MR SCHOOMBEE: As a matter of pleading or as a matter of - - -

GAUDRON J: I have open page 1 and page 354.

MR SCHOOMBEE: On page 354, at line 10, we refer to the documents and if you go to the top of page 1, right under the heading in bold, "Statement that a Proposal may be Implemented", it there refers to amendments to the relevant document.

GAUDRON J: So it is not restricted to Jane Forest, although your pleading it?

MR SCHOOMBEE: No, it applies to Jane, we say, perhaps differentially, but it applies to..... So we say that, finally, on this point, that there is no real argument that an administrative certification of whatever nature can really be a pre-condition to either civil or criminal prosecution - civil relief for criminal prosecution. It is not stated to be that and we make the point that even if such certification were to be given under condition 18, it would be inadmissible evidence in any civil proceeding. It would be some determination by an administrative body, it would not be admissible evidence, neither in a criminal trial nor in a civil trial and we say it cannot be construed as a pre-condition.

KIRBY J: The document at page 1 is under the word "Statement", et cetera, entitled "Amendments to the 1987 Forest Management Plans and Timber Strategy and Proposals to Meet Environmental Conditions on the Regional Plans and the WACAP ERMP", et cetera, now, how does that fit into the statutory scheme? I know nothing of the statutory scheme, nothing at all, and I hope that after this case is over I will never visit it again. But for the meantime I have to try to understand it. This is an amendment to - where is the Forest Management Plans and Timber Strategy and Proposals which this statement is amending.

MR SCHOOMBEE: These documents were before the Full Court. We have not further burdened you with that.

KIRBY J: So we are not concerned with them, even though this statement is purporting to be an amendment of the Forest Management Plan.

GAUDRON J: Well, you may say so, but if we are to just determine this as if on a demurrer, that may not be so. If we have to be satisfied, not that this is arguable but that you do have rights pursuant to these documents - - -

MR SCHOOMBEE: But, with respect, we say that this is the notice and we say it refers in 1.1 and 2.2 to commitments given and we plead those commitments and those commitments stand on their own legs. They may have been given in relation to the amendment of documents but they stand on their own legs. They are pleaded substantively in all the pleadings before you.

GAUDRON J: Well, Mr Schoombee, it is your case, but we know nothing about it, as Justice Kirby has pointed out to you. If, at the end of the day, I do not know where the various statutory obligations that you assert can be the subject of action come from and how they interrelate, I will be forced to say that special leave must be, in my judgment, refused, because I cannot give a judgment which I understand. I cannot give a judgment about matters that I understand. Matter for you but I do not understand what is happening here.

MR SCHOOMBEE: The Forest Management Plan that your Honours, I understand, have a physical copy of is the Forest Management Plan for 1994 to the year 2003.

KIRBY J: Is this the document that I am holding up which has a "3" on the front of it?

MR SCHOOMBEE: Yes.

KIRBY J: It is called "Forest Management Plan 1994".

MR SCHOOMBEE: The provisions of which are set out similarly in our application books at page 8 and further.

KIRBY J: Just tell me this, where does the Minister get the power? In the old days, when things were done in a formal and proper way, there would be the name of the statute and the section under which this statement is being made. Which is the statute under which the statement is being made?

MR SCHOOMBEE: Environmental Protection Act.

KIRBY J: What section?

MR SCHOOMBEE: Section 45.

KIRBY J: Section 45. Very well. So, it gets its power and authority for the Minister to do this from that section and he is thereby amending the Forest Management Plan which we have.

MR SCHOOMBEE: It is viewed as a proposal for the purposes of the Act, so they are saying we have a Forest Management Plan, which is referred to as the 1987, the earlier version, we are going to change it, we are working towards the new Forest Management Plan which is the one that you have before Court, and if you want to do that, if you want to implement your new proposal, your new Forest Management Plan, you have to do certain things. Then I am happy with it. If you have given commitments you have to obey the commitments.

KIRBY J: As I remember in the New South Wales environmental planning legislation, the purpose of all this is to provide a certain degree of speed and flexibility in amending the hierarchy of plans, because new problems arise and it needs to have a greater flexibility than ordinary laws. Is that generally correct?

MR SCHOOMBEE: It is exactly the point, that there is a hierarchy - we are not concerned here with the hierarchy - but there is a hierarchy - - -

KIRBY J: There is a state environmental plan and there is a district and then there is the local environmental plan and here there is a special one for forests.

MR SCHOOMBEE: That is why the Minister actually says, "I accept your undertaking", to put it in those terms. He says, "You have given commitments, as part of putting up this proposal, and I am willing to say, yes, you go ahead, but you should honour those commitments". Therefore, we have pleaded those commitments which exist in a concrete form..... or outside the confines of the actual management plan amendment proposal that went up. It was part of the proposal - a bit like somebody giving almost an undertaking for damages to a court - but saying, yes, you make these amendments, we will also do the following things and, with respect, as his Honour Justice Kirby said, these operate at a lower level and may be amended, for instance, far more easily.

GAUDRON J: Am I right in thinking then that the 1994/2003 Forest Management Plan is the plan to which section, is it 133(3), now refers, and is, at the same time, the proposal which is the subject of a statement at page 1 or was there a different document which was the proposal?

MR SCHOOMBEE: It is the end result of that proposal. Because there are two screening processes that operate parallel. There is the process under the Environmental Protection Act, which is the first hurdle,m so you are not going to get any management plan unless you pass through that hurdle. Once you have your tick under the Environmental Protection Act, of course, as we have gone to the CALM Act, you must then have that management plan go through that process to become a formal document under the CALM Act. So, yes, the proposal that was approved by the Minister under the Environmental Protection Act, achieved a fuller life, a complete life, got the second stamp and became the plan that you have before you.

GAUDRON J: Where is the proposal? If this is to be determined as on demurrer, which you said it was, where is the proposal, so that we can ascertain whether your pleadings conform with the proposal, the commitments you allege in the proceedings conform with the commitments in the proposal?

MR SCHOOMBEE: That is not a matter, with respect, that is before the Court.

GAUDRON J: Well, you say it is to be decided as if on a demurrer.

MR SCHOOMBEE: We have pleaded that the Minister approved a proposal. As part of this proposal, commitments were put up. The issue of inconsistency with the proposal does not arrive in any shape or form. That would barely be a defence point. It is not a matter for us to plead that.

GAUDRON J: Did you tell this Court, or did you not, that some of these questions were to be determined as on a demurrer?

MR SCHOOMBEE: Yes.

GAUDRON J: So the question that arises, is it not, is whether there is a commitment which is the subject of a statement, which gives rise to an enforceable obligation under 47(2) of the Environmental Protection Act. Is that right?

MR SCHOOMBEE: Yes.

GAUDRON J: I have the Environmental Protection Act, I have the statement, but I do not have the proposal.

MR SCHOOMBEE: But you do not need the proposal. It is not a material fact in - - -

GAUDRON J: Well, if it is to be determined on a demurrer basis, I - - -

MR SCHOOMBEE: It is not a material fact for our pleading or our case. If a Minister gives permission to implement a plan subject to certain commitments, surely it is anticipatory pleading to sort of try and see whether there is any possible inconsistency - that that is not an issue. We have to plead the material facts - - -

GAUDRON J: We are entirely at cross purposes. You assert, do you not, specific duties enforceable under section 47(2). Do we have to be satisfied that these duties exist or do we only have to be satisfied that you have pleaded that there are duties?

MR SCHOOMBEE: Only that they have been pleaded because in a demurrer you never go and examine the facts. That is not a demurrer, that is a trial.

GAUDRON J: How do we find the duties? Do you mean to say you could make up - as you are conducting this case, you could have pleaded anything you wish to plead?

KIRBY J: I assume that if it was a complete fantasy that it would be pointed out by the other side that you had misconstrued the legislation and that there is no foundation in the legislation but as I understand it, whether it is right or wrong, you say the foundation for this is in section 47. It does permit the ministerial statement. The ministerial statement has been made. You have pleaded it and you have pleaded a breach in it and therefore you are entitled to relief on that basis.

MR SCHOOMBEE: Yes.

KIRBY J: It is either good or it is bad and I think we have gone through it long enough.

MR SCHOOMBEE: It is good or bad, that is to be examined at trial, yes. We are happy to provide the documents. We are happy to provide but we would say that that is an exercise that is not necessary for this Court because the power of a demurrer is to say whether the facts pleaded reveal a cause of action.

GAUDRON J: You take whatever course you like.

MR SCHOOMBEE: We are happy to tender the documents if the Court would accept them. I would seek to tender them, but we say that they are not necessary for the argument.

KIRBY J: If you say they are not necessary, you are either right or wrong on that and you have advanced your argument and I think it will not get better by any further articulation.- - -

MR SCHOOMBEE: I accept that.

McHUGH J: Mr Schoombee, just going back to an earlier point, there is a line of cases which would seem to assist you on your claim for a declaration, including decisions in this Court, and they are prosecutions under the Companies Code. The two cases are Mutual Home Loans v The Attorney-General 130 CLR 103. Chief Justice Barwick who dissented in that Court seemed to have some problems about it. But in Australian Softwood Forests v Attorney-General [1981] HCA 49; 148 CLR 121 it was quite clear that this Court upheld the making of declarations in proceedings brought by the Attorney-General even though the effect was to declare that the defendants had committed offences and Justice Murphy at 137 said:

Presumably all those who have been party to offences against the Companies Act in relation to the issues are liable to criminal proceedings at least with the consent of the Minister. In these circumstances, and because the respondent did not press.....for the injunction, I agree that the relief be confined to.....declarations.

There is also another case in the Companies Ac,t Shapowloff v Dunn (1973) 2 NSWLR and that came up here as well. I was counsel in that case but I do not think that the point about declarations was raised in this Court. You might have a look at those at some stage.

MR SCHOOMBEE: Perhaps then just finally on that point, the Environmental Protection Act, and referring to the line of authorities referred to by his Honour Justice McHugh may I just further refer to a discussion of this distinction that has been raised between whether you may have just a pure offence, like somebody driving faster than the speed limit which would be difficult or a bit artificial to construe some obligation not to drive faster than the speed limit - perhaps pure offences and the question of where you have - although they are a defence provision you actually do have a duty on a matter that is coupled to it but certainly, for the purpose of relief, have a relevant existence.

This issue is discussed in the 1985 Law Reform Commission report which is Law Reform Commission, Standing in Public Interest Litigation in our supplementary authorities, No 34, and it is particularly at page 162 of the authorities. The point is there discussed in relation specifically to injunctions under the dot point "Anomalies".

KIRBY J: Are you straying into the standing argument now?

MR SCHOOMBEE: Pardon? No, with respect, it relates to the standing issue but it touches upon this distinction, the distinction between an offence pure and simple and the fact that there is an obligation coupled to a criminal offence. It makes the point - it refers to Onus, that there are matters where there may be duties coupled to an offence and it then becomes anomalous to say, "The Attorney-General should have some - - -

McHUGH J: But in most cases the duty is stated separately and the offence is an additional remedy. The difficulty you have here with section 47 is that you have got to argue that by implication the statement of an offence also carries with it an implication of duty - - -

MR SCHOOMBEE: That is why I will be - - -

McHUGH J: - - - which is justiciable in civil proceedings.

MR SCHOOMBEE: Yes, in civil proceedings and we would say that one would have to look at what is the nature of the duty, what must you do and we would respectfully submit that where you come with a proposal that has an environmental impact under the Act, there is a specific screening procedure. A minister of the State says, "You can do it but subject to conditions." That casts a public type duty on you in the sense of a duty affecting others, and it is certainly conceptually possible to say that you have, by reason of those conditions, duties which are coupled to an offence provision.

We would say that the same applies under the Wildlife Conservation Act although there, your Honour, we do not face the same problem because there are separate provisions, albeit one, they are in the same section but they are different subsections in relation to fauna, if it binds the Crown, in fact, then it is even in separate sections. I think one would have to factor into that distinction a characterisation of what is the type of duty you are talking about.

KIRBY J: May I just ask a polite question at this stage because - - -

McHUGH J: That seems to imply that mine was not.

MR SCHOOMBEE: Your Honour, I think I have only fielded polite questions but yes, your Honour may - - -

KIRBY J: I do not remember in the Court of Appeal ever sitting a whole day on a pleading matter and we really have not even approached the end of your arguments because looking at your list you have still got to do Fauna and the Wildlife Conservation Act, the Crown point and a couple of other points and we have still got to hear standing and we have got to hear the respondent. You have nearly finished your time, have you not? Justice Toohey, in his beneficent last gesture in this Court giving us this case, set us a time limit on the parties, I dimly recall.

MR SCHOOMBEE: Yes.

KIRBY J: I think you do not have too much left and you have got a lot of things to cover.

MR SCHOOMBEE: I have gone for two hours. We were given five hours originally. I went for two hours yesterday and at a quarter past 12 I would have gone for four hours and I was hoping that would be the point of the handing over of my learned friend.

KIRBY J: I did not want to interrupt you but I just wanted you to know that I was looking every now and again at the clock.

MR SCHOOMBEE: I understand that. Hopefully, I would not agree, with respect, with your characterisation that we have only looked at pleading points. I have discussed the substantive issues underlying the relief we are seeking and whether the respondents are bound. I have dealt with the Environmental Protection Act and I have effectively also dealt with the question of questions 5 and 6 dealing with the relief.

In relation to the wildlife, if I may now turn to deal with question 9, and I am sticking to the questions formulated by his Honour Justice Toohey which is on page 19 of my outline of submissions. That simply goes to the facts that may arise under fauna and my learned friend, Mr McIntyre, will deal with the fauna provisions so I will not deal with them.

That brings us then effectively to question 11 which deals with the Wildlife Conservation Act and there the Crown is expressly bound. In terms of section 23F of that Act - - -

KIRBY J: What section is it?

MR SCHOOMBEE: 23F of that Act which your Honour will find in the respondents' book of legislative material at page 305 and that deals with the rare or endangered species of flora and deals with the fact that the Minister may make a protection order and we have pleaded that such an order has been made and that there are flora within the protected categories present in the areas likely to be logged or planned to be logged. Then it sets up an obligation not to take that flora unless there is a licence holder or unless a licence has been issued and then it sets up in a separate subparagraph on page 306 under (6) that if you actually do take it that is a contravention. That is an offence.

We say that essentially the same arguments that I have addressed on the question of relief, that is either declaratory or injunctive relief, would apply in this context and certainly, in a sense, a fortiori because the prosecuting authority under the Act is the very first respondent, so for any criminal prosecution to be brought the executive director would effectively have to prosecute himself if that is possible.

KIRBY J: What is the section that says that?

MR SCHOOMBEE: I will give it in a moment. It is section 26(3) of the Act which is found on page 308. An "Executive Director" is defined in section 6 which appears on page 282.

GAUDRON J: Now, do you say all proceedings in respect of any such offence simply mean prosecutions?

MR SCHOOMBEE: Yes.

GAUDRON J: You say that those words do not extend to the proceedings you have brought.

MR SCHOOMBEE: No, because in the - - -

GAUDRON J: Have you got anything on those words that confine them in that way?

MR SCHOOMBEE: I think in context, with respect, it refers in subparagraph (2):

All proceedings for offences - - -

GAUDRON J: Yes, that is why I am worried about the distinction between (2) and (3).

MR SCHOOMBEE: We would say that, with respect, that is immaterial and that they refer clearly in this context- - -

GAUDRON J: The question is, to the extent that your pleadings deal with the Wildlife Conservation Ac,t are they proceedings in respect of an offence - - -

MR SCHOOMBEE: No.

GAUDRON J: - - - as distinct from proceedings for an offence.

MR SCHOOMBEE: No, we say no, because it is in a section headed "Offences".

GAUDRON J: Yes, but do you note the different language in (2) and (3).

MR SCHOOMBEE: We would respectfully say that that does not make any material difference.

McHUGH J: I suppose you would argue that the reference to "such offences" in subsection (3) is a reference to the offences in subsection (2).

MR SCHOOMBEE: That is why I referred to subsection (2), with respect, yes.

KIRBY J: The relief you have sought here again, declaration and injunction, so the same issues will be debated.

MR SCHOOMBEE: Same issues arise although here it is perhaps more sharper into focus because the respondent cannot prosecute himself.

GAUDRON J: I am sorry. Your declarations are not the same here.

MR SCHOOMBEE: I apologise.

GAUDRON J: First of all, you seek a declaration that they are bound. There is no problem about that.

MR SCHOOMBEE: Yes.

GAUDRON J: The next one you seem to seek is a declaration that they will breach with logging operations. Now, that also seems to raise some problems.

MR SCHOOMBEE: Yes, well if they go ahead with conduct - - -

GAUDRON J: Well, in terms of the relief it can be granted by way of declaration.

MR SCHOOMBEE: Well again, that is said. There are cases which say that if you proceed with a certain course of conduct you may commit an offence and if there is a doubt, the Court has the jurisdiction to make such an order.

GAUDRON J: Can you refer to them please?

MR SCHOOMBEE: I will refer you to them. I will give you that authority. May I just qualify one answer. It is not exactly the same because here there is an additional element. They have asserted, and we have pleaded that, that they are not bound by them.

GAUDRON J: Yes, I have got no difficulty with declaration (c). I am looking at page 369 declaration (c).

MR SCHOOMBEE: Yes, I understand that.

GAUDRON J: Declaration (d), it seems to me, does raise some problems

for you unless you can give me some cases that suggest otherwise.

McHUGH J: Unless there are some cases on it, you are really asking the Court to give an advisory opinion as to the hypothetical. The ordinary procedure is declaration that they have breached the provision, or breached the duty and an injunction to restrain continues for doing it in the future but your declaration is framed in futuro.

MR SCHOOMBEE: Yes.

McHUGH J: Do you seek to defend it in that - - -

MR SCHOOMBEE: No, because the physical acts are the same, are they not? I mean, whether it is wildlife conservation or whether it is - - -

McHUGH J: That may be, but nevertheless the declaration is framed in the future so you need to amend that.

MR SCHOOMBEE: Because we are really saying that in going ahead and doing the limited logging they have done they have, in fact, breached the Act, similar to the others.

GAUDRON J: So you want a declaration that they have breached by proceeding with logging operations?

MR SCHOOMBEE: Yes.

GAUDRON J: And similarly, to go back to (b), then the declaration that you seek there is have breached and continue to breach. Is that right?

MR SCHOOMBEE: Yes. Well if they log certainly, yes.

GAUDRON J: If?

MR SCHOOMBEE: They stop logging so they are not in - - -

GAUDRON J: So it is "have breached". Your declaration was in terms of "are".

MR SCHOOMBEE: In proceeding with logging, that is the - but proceeding there is not a future sense. It means that they started and when we started the case they were logging.

KIRBY J: Is it not a common formula that "unless restrained, will continue to"?

MR SCHOOMBEE: Yes.

KIRBY J: Even though that is in futuro I have often seen it.

MR SCHOOMBEE: That is exactly the point. I think our major point is that they have gone on record saying we are not bound by this, although the Act says that, and we submit that that in itself is an important issue, if a government department comes along - - -

GAUDRON J: Where did they go on record?

McHUGH J: Did they not do it in their outline?

MR SCHOOMBEE: Yes and they have said it in the court.

McHUGH J: Is that not particularised in their outline of argument in this Court on the - - -

MR SCHOOMBEE: They have said that. But they have said in the earlier courts they have actually pleaded that. So we are not bound by that.

McHUGH J: I think it is in your written argument.

MR SCHOOMBEE: Yes, but it may be held against me that it is too late to rely on that or it is not pleaded, so we have actually pleaded what was said in court and our amendments incorporate that. We say that is an important matter, if a government department says the Act - the Act says you are bound, but they say we are not bound by it, and they have some argument that we have addressed in our outline of submissions that because there is a dispute resolution mechanism in section 9(2) dealing with flora - again if there is some dispute - the Minister should consult and make a determination. That section is to be found on page 287 of the book of legislation.

KIRBY J: The argument is one concerning the theory of the Act, the theory being that private persons are subject to the offence in this section -23F - and public authorities are subject to the dispute mechanism in the earlier section.

MR SCHOOMBEE: Yes.

KIRBY J: What is the earlier section?

MR SCHOOMBEE: Section 9(2) which you find on page 287. Even if that were to be the case - and cases such as the Superannuation Board Case make a distinction between being bound to an Act, that is the obligations, and being subject to criminal provisions - we would certainly say they are bound by the obligation created in section 23F.

GAUDRON J: How does subsection (2) of section 9 work?

MR SCHOOMBEE: It says that where there is a dispute, that is in government circles, to give it a broad terminology, then there is a process whereby this can be, as it were, arbitrated and it is very unrealistic in political terms but that is what the section says, the Minister's - - -

GAUDRON J: What does all that say with respect to the legal obligation? It does not seem to say anything.

MR SCHOOMBEE: Nothing.

KIRBY J: Line 1 states the legal obligation. It says it binds the Crown.

MR SCHOOMBEE: Yes.

KIRBY J: And you read 9(1) with 23F and you have got the Crown.

GAUDRON J: Perhaps 9(2) really goes to whether or not proceedings shall be taken in the name of the Executive Director under 26(3).

MR SCHOOMBEE: Yes, that may be the case whether you should actually prosecute a local authority. That may be the case.

KIRBY J: Yes.

GAUDRON J: Can it have any other?

MR SCHOOMBEE: No, we say no. I am just dealing with it briefly because it is a point raised by the other side. We say it has absolutely nothing to do with the obligation.

KIRBY J: You will not forget my request for a little ready reckoner that gives page references to where each judge in the Full Court dealt with these multiple issues.

MR SCHOOMBEE: I must apologise. I should have said at the beginning of the day we are in the process of drafting.

KIRBY J: Very well. Thank you.

MR SCHOOMBEE: The Full Court essentially accepted all our arguments on this point but said that you cannot get relief because you have just pleaded "without more" was the expression that there will be a taking of flora.

KIRBY J: I am sorry, I did not follow that.

MR SCHOOMBEE: The Full Court accepted that the Crown was bound. It accepted that relief was available in principle, say injunctive relief, but the Full Court said, "You have not pleaded facts that could justify the invocation of the extraordinary jurisdiction or the exceptional jurisdiction to grant civil relief in an area that touches on criminal law."

GAUDRON J: You have only pleaded that they will do it, not that they have done it.

MR SCHOOMBEE: Yes.

GAUDRON J: Well that goes directly to the point that was raised with you earlier, whether you can have declaratory relief as to future matters rather than past.

MR SCHOOMBEE: Yes, but this was on a matter of injunctive relief and the court said, "We accept that the relief could be available but there are no facts pleaded" and we say, with respect, that given the surrounding circumstances, there is an obvious case. You do not have to plead the law that the very person who has the power to prosecute, for instance, is the person said to be committing the breach. Of course, the court did not deal with our relief, that is a declarator that they are bound, given their denials, at all. The court just focussed on one aspect of it and that is an obvious point where we should have been granted relief.

McHUGH J: Perhaps the court was not wrong in insisting that you should prove all facts necessary for the exercise of a discretionary jurisdiction. If, for example, you are claiming punitive damages, you have to prove the facts which entitle you to punitive as opposed to ordinary damages. When you are seeking a declaration in a matter involving a breach of a criminal provision, why not in principle should you not have to plead the facts which would make out at least an arguable claim that it was a case calling for the exercise of the discretionary jurisdiction?

MR SCHOOMBEE: I would certainly say at trial that should be proved. Whether you have to actually plead in those circumstances, what the circumstances going to your relief would be, it would be largely argumentative pleading, saying it is the same person who is the alleged transgressor and brings the offences and such matters. It is preventative in nature, that you would have thought these matters were really obvious and a matter which is for the trial court. Alternatively, we should have been given leave to amend on that point.

GAUDRON J: If I can take you to paragraph 41 at page 359. That is, in fact, all you plead in this case by way of intention to breach, is it not, or likely to breach?

MR SCHOOMBEE: Yes.

GAUDRON J: That is all you plead:

The First Defendant.....will result in the taking of rare flora in Jane Forest.

Then you say certain things are rare flora. You do not actually say that there are - it is sort of at large. Is that intended to be read as saying that they are in that forest, in Jane Forest?

MR SCHOOMBEE: Yes, very much so.

GAUDRON J: And any logging will necessarily result in their taking.

MR SCHOOMBEE: Yes.

KIRBY J: Well, they are not actually pleaded, are those, those additional facts that her Honour has just referred to.

GAUDRON J: They are reading between the lines.

MR SCHOOMBEE: That is what we state. We say that in their logging they will result in the taking of rare flora, and then we specify the rare flora.

GAUDRON J: Yes, it is a little cryptic.

MR SCHOOMBEE: I would accept that. I would apologise for that but that is what the particulars do. Given some other remarks, I should probably be thankful that it is referred to as being cryptic. The other matter which is, again, really a pleading point deals with the question of whether it was for us to, in our pleading, negative the possibility of consent by the Minister because we have pleaded in that way, we have said they would be breach of the Act but, of course, it is a defence or you can get permission - you can get a permit. Now, the - - -

GAUDRON J: What section is that?

MR SCHOOMBEE: That is section 23F(4) at page 306 of the book of documents.

GAUDRON J: Well, you would have to plead that, would you not?

MR SCHOOMBEE: With respect, we would say that, even in a criminal prosecution - we have referred to section 72 of the Justices Act in Western Australia - that type of exception has to be proved by the defendant, even in a criminal case. In a civil case, you do not plead, we say, the facts where the onus would lie on the other party.

GAUDRON J: Well, except you are alleging breach of a statutory duty, are you not; that, in essence, what you are alleging is breach of a statutory duty?

MR SCHOOMBEE: Yes.

GAUDRON J: Well, for my part, I do not - whatever the rules about offences I would have thought you had to plead all those matters that brought the statutory duty into operation, would you not? I know there are rules about exceptions and onus of proof in relation to offences and in relation to civil causes of action.

MR SCHOOMBEE: The point we referred you in the outline of submissions at the top of page 22 to the Supreme Court rule which basically says you do not have to plead facts, and it is in our book of authorities, you do not have to plead facts where the onus is on the other side. But that is really, with respect, a trivial point if we were to get on that, and I think the full - - -

GAUDRON J: Well, you say it is a trivial point but, at the end of the day, we have to pass upon it.

MR SCHOOMBEE: I accept that, but the Full Court envisaged there that we could be granted leave to amend, simply to make that allegation, because surely the whole pleading, the import of the pleading, is really that there is no ministerial consent. We have also pleaded that the - - -

GAUDRON J: Do you say that that is, in fact, what you plead - absence of - - -

MR SCHOOMBEE: Yes.

GAUDRON J: Well, you do go so far as to say you do not have to plead it.

MR SCHOOMBEE: We do not have to plead it but otherwise it is pleaded by implication because we say they are acting contrary to that provision and we have pleaded that they say they are not bound by the Act. In those circumstances, it is really a non-issue to say that there is some possibility that has not been excluded by the pleader and in respect of which the pleader may have an obligation to allege, but not an obligation to prove. We could really say that that is not the case, but that would be certainly a matter that could be dealt with by an amendment.

I have dealt with questions 12 and 13. I will deal shortly with the other questions which go really to the issue of whether the Full Court erred and that is on page 24 of my outline of submissions. We say that the Full Court, as it explicitly did per his Honour Justice Templeman, said that they could make final findings on matters of law.

KIRBY J: What issue are you on now? Have you moved to another issue? What is the issue you are doing?

MR SCHOOMBEE: Yes, I apologise, I am on question 16.

McHUGH J: Sixteen.

MR SCHOOMBEE: At the bottom of page 23 over on page 24. We say this was a matter where our clients were treated unfairly and improperly, really, because effectively the matter was argued on that basis, that is on the strike out basis. We resisted any attempt to change the test but the court then said, we can decide questions as final as possible and referred to some very broad statements made by the Chief Justice when he gave leave on the interlocutory appeal which certainly, we say, did not intend to change that.

GAUDRON J: To the extent, though, that your argument proceeds on the existence of a breach of a statutory duty justiciable at the suit of private individuals, is there any difference in what would be done on a strike-out application or on a demurrer, I would have thought not?

MR SCHOOMBEE: With respect, the question of law on a strike out as all the authorities say, including Sir Owen Dixon, to cite in the General Steel Industries Case, we say, is whether the matter is arguable.

GAUDRON J: Yes, but having come here, for example.

MR SCHOOMBEE: Yes, that is different.

GAUDRON J: Well exactly. Would one say, for example, in relation to the Wildlife Conservation Act, it is arguable; or would one say, no, there is a statutory duty which is justiciable?

MR SCHOOMBEE: I think, I tried to explain it. I apologise, it may not have right clear at the beginning, but a number of things happened very quickly then. But I make the point that we come in this Court, we said we are willing to argue it on a demurrer basis to give it a shorter - - -

GAUDRON J: Yes, so, we do not really have to worry.

MR SCHOOMBEE: Not really. This is a procedural thing that was, again, one of the questions because it goes to, "Did the court go wrong?", it is really a special leave point rather than a substandard one.

GAUDRON J: Well, we do not have to deal do we, in essence?

MR SCHOOMBEE: My understanding, from what his Honour Justice Toohey would have said, you do not have to deal with any question if you do not want to because he said - perhaps that was some comfort for you - is that he indicated that you could change or reformulate the questions if you wanted. But, yes, I do not want to deal that in a matter and the only other additional issue is the question of, again, amendment and we have dealt with the issues where amendment can cure or cannot, depending on the analysis, cure and I have explained right in the beginning that the only one amendment we were granted was not really going to assist us. In relation to standing, which is the last issue that I will deal with- - -

GAUDRON J: Can I take you to question 17, it is on page 25 which talked about an arguable cause of action, it really is not the question, is it? We are really in a public law area? Are we not talking about a breach of statutory duty, justiciable act, at the suit of private individuals rather than a cause of action?

MR SCHOOMBEE: I think that refers back to what the Full Court did?

GAUDRON J: Yes, but - - -

MR SCHOOMBEE: It was locked in that area and I agree, with the great respect, your Honour is right. That is not a question. It is, again, saying something about what they did. It may not be necessary for the Court to deal with those issues.

GAUDRON J: Well, it is not so much a question of whether it necessary. It may be a definitional matter that directs your attention one way, if you say a breach of statutory duty justiciable act at the suit of a private individuals. You may get different answers if you keep talking about causes of action which look, really, to private rights.

MR SCHOOMBEE: I think cause of action there was really meant in neutral terms. It was a shorthand really for the case. It was not meant in that sense. Certainly, that was our - I think everybody at the time understood it, but I would respectfully agree with the distinction but it is not meant to, as it were, focus on the private aspect or any private aspect of cause of action.

I propose to deal shortly with the standing submissions because that is really a point that has been raised, or it is a cross-appeal point where the other side would need leave, and we have filed submissions dealing with that specific aspect on 30 March 1998.

GAUDRON J: Well, we do not hear you. It is a question what happens - whether the other side has special leave to deal with standing, I think.

MR SCHOOMBEE: Yes. I will now, with respect, hand over to my learned friend Mr McIntyre.

GAUDRON J: Thank you.

MR McINTYRE: Yes, if it pleases your Honours, the questions that I propose to address are in our document, which we handed up to you this morning, which, we say, are the substantive questions. The ones that I would refer to is the first No 4 in the middle of the page which says:

Did the Parliament intend by the enactment of the Wildlife Conservation Act to grant immunity to the servants, agents and contractors of the First Respondent from the operation of the fauna provisions of the Act in relation to the undertaking of logging industry in the State?

And then question 5 seeks to explore that issue in a slightly different way and asks:

Is the rule of construction as to the intention of Parliament to bind the Crown different depending on whether the legislation was enacted -

(a) before the Province of Bombay case,

(b) after the Province of Bombay case but before the Bropho case, or

(c) after the Bropho case.

And your Honours may recall in the judgment in Bropho that that was a matter of some - - -

KIRBY J: What is the document you are referring to now?

MR McINTYRE: I am sorry your Honour. That is the document called "Applicants' proposed questions". It is one of the, it is - - -

KIRBY J: You are identifying what you are going to address now?

MR McINTYRE: Yes, that is right.

KIRBY J: You are going to address the Crown issue are you?

MR McINTYRE: Yes, whether the Crown is bound by the Wildlife Conservation Act in relation to fauna.

KIRBY J: That is question No 5, is it?

MR McINTYRE: Yes, 4 and 5 both deal with that issue, so the first question is whether the Parliament intended to bind the servants, agents and contractors of the First Respondent who is, for all practical purposes, the Crown, and then a second issue, which I - - -

KIRBY J: Well, they are your 4 and 5, which questions are they in Justice Toohey's questions? They are the ones we have to answer.

MR McINTYRE: If you go to the applicants' written submissions in relation to the Bridgetown-Greenbushes Case, which I will be hoping to keep to, at page 5, there is question 8. In fact, that heading should refer to questions 8 and 9, and I have summarised the question because I found it rather convoluted. 2:

Do sections 14(2)(ba) and 16 of the Wildlife Conservation Act (WA), relating to fauna, bind the Respondents?

But they are Justice Toohey's questions 8 and 9.

KIRBY J: Now, I have so many applicants' written submission. One of them is in the South-West Forest Defence one is in the Bridgetown-Greenbushes Friends. Which is the document - - -

MR McINTYRE: It is the Bridgetown-Greenbushes one, it is No P33 of 1997.

KIRBY J: The Bridgetown, page 4 and 5, or page 5, question 8?

MR McINTYRE: Yes, at page 5, there is question 8, that is Justice Toohey's question 8 and then page 10 is Justice Toohey's question 9, and page 11 is Justice Toohey's question 10. As I say, they are my summarised versions of them.

GAUDRON J: The relevant pleading which, at the end of the day, is in issue is which?

MR McINTYRE: Well, it is to be found in joint application book volume 1 commencing at page 69 and ,with some hesitancy, I will take your Honours to parts of it in the sense that I prefer to avoid having to get into the fairly convoluted and detailed discussions which my learned friend has - - -

KIRBY J: Do not worry about all this. It is in volume 1, page 69?

MR McINTYRE: Yes, it is page 69, volume 1. That is the commencement of the statement of claim in Bridgetown-Greenbushes. Now, the - - -

GAUDRON J: Relevant paragraph?

MR McINTYRE: In relation to the first question, is that what your Honour is asking?

GAUDRON J: Well, the questions that you are going to address?

MR McINTYRE: Yes, it is at page 79.

KIRBY J: We have 79, what should we be looking at?

MR McINTYRE: Yes, subparagraph (f) at the bottom of the page at about line 26, so that the allegation commencing over the page is that the defendants have, in respect of HS0703 - and that is the name of a coupe, the Hester coupe - in relation to the integrated Forest Management Plan proposing that logging be conducted, the defendant proceeds with the logging operations it will and at paragraph (f) over at the bottom of page 79:

breach the provisions of Sections 14(2)(ba) and 16 of the WC Act in that the logging operations will result in a taking of the Baudin's Black Cockatoo, which species was declared by the Minister for Environment -

et cetera, and it goes on over onto page 80. That is the - - -

GAUDRON J: And what relief is sought for that?

MR McINTYRE: The relief is stated very briefly at page 90. As you can see it does not divide itself up among the different causes of action. It seeks - - -

GAUDRON J: You seek declarations that they will be.

MR McINTYRE: Yes, it has the same defects which you have identified in relation to the other - - -

HAYNE J: And was this paragraph struck out? Not according to the order at 501, it may have been, but - - -

MR McINTYRE: The prayer for relief, your Honour. That is probably right. I do not recall that paragraph, the prayer for relief was struck out but it was not any - - -

HAYNE J: No(f), the subparagraph (f) at pages 79 and 80 which we began with, was that struck out?

MR McINTYRE: Yes, it was struck out by Justice Parker and that - as a consequence of the orders of the Full Court, relying on what Justice Parker had done, struck that out.

McHUGH J: This only applies in the Kerr-Hester claim, does it?

MR McINTYRE: Yes, that is right. The learned Solicitor reminds me that it stayed struck out. We were never given leave to replead it. But the substantive issue of whether the Crown was bound by the Wildlife Conservation Act, as you can see from the judgments, was fully argued and determined by the Full Bench.

KIRBY J: What is this marking on the side of the appeal book? Was that done by Justice Parker's order?

MR McINTYRE: These vertical lines?

KIRBY J: Yes, did these show amendments by the time the matter was tendered to Justice Parker?

MR McINTYRE: They are amendments which Justice Parker allowed by an order prior to presenting the argument to - - -

KIRBY J: But (f) which is untouched in the copy of the appeal book, you say, was struck out by his Honour?

MR McINTYRE: Yes, that is right. There is a small amendment to it towards the end of it on page 80.

GAUDRON J: Does "taking" have some special meaning? I can well understand that you might interfere with the habitat of the cockatoo, you might even - - -

MR McINTYRE: It is defined in the Wildlife Conservation Act 1892 which starts at page 326 and it is in the definition section at section 6 and, in particular - - -

KIRBY J: I am not hearing you. Is it page 56 or 6?

MR McINTYRE: No, it is in the respondents' book of legislation, at 284 of that book of legislation, down at the bottom of the page is the concept "to take" and it says:

in relation to any fauna, includes to kill or capture any fauna by any fauna by any means or to disturb or molest any fauna by any means or to use any method whatsoever to hunt or kill any fauna whether this results in killing or capturing any fauna or not; and also includes every attempt to take fauna and every act of assistance to another person to take fauna and derivatives and inflections have corresponding meaning.

GAUDRON J: Now what precisely do you mean by "take" in the pleading? It is not particularised, is it?

MR McINTYRE: Yes, it is. It is at page - - -

GAUDRON J: You say it will "disturb or molest", it will "disturb the cockatoo"?

MR McINTYRE: That is right. At page 80, we say in (ii) over at about line 10 of page 80:

the implementation.....will result in the taking of individuals of this species, in particular, the disturbing and molesting of individuals of the species.

So, that is how we fit it within that definition.

KIRBY J: Where is the provision that says "though shalt not take"?

MR McINTYRE: That is at section 14 which is at page 288 of the book of statutory materials, and it says:

14.(1) Except to the extent which the Minister declares.....all fauna is wholly protected throughout the whole of the state at all times.

(2)(a) the Minister may from time to time declare -

that any of the fauna is not protected -

GAUDRON J: Section 16, at page - - -

MR McINTYRE: Yes, it is 14(2)(ba):

(ba) The Minister may, from time to time by notice published in the Government Gazette, declare that any fauna specified in the notice.....which is likely to become extinct.....or otherwise in need of special protection -

(i) such fauna is wholly protected;

(ii) a person who commits an offence under section 16 -

which then provides us with the "taking" provision, section 16(1):

A person who infringes the protection conferred by subsection (1) or declared pursuant to subsection (2).....by taking fauna while protected, otherwise than by -

the authority of a licence.

GAUDRON J: Well, now, do we know - this has not happened yet? We are talking strictly in futuro, are we?

MR McINTYRE: That is right.

GAUDRON J: And do we plead that the Minister will not give a licence, or a licence cannot be obtained?

MR McINTYRE: Yes. The response that we had from the respondents was that neither the Executive Director nor his servants, agents or contractors, as we had pleaded, were bound by the legislation. We said - - -

GAUDRON J: Yes, I understand that, but I am concerned with your pleading.

MR McINTYRE: Could your Honour ask me the question again.

KIRBY J: In futuro, it has not yet happened?

GAUDRON J: And I want to know if you have pleaded that no licence could be obtained, or no licence will be obtained. You are pleading future breach of the Act and seeking declaratory relief, but the offence is taking it without a licence.

MR McINTYRE: Yes. We have not pleaded that explicitly. It is perhaps a similar point to the one that you were canvassing with Mr Schoombee. We have said - - -

GAUDRON J: But it is a pleading point. It seems very difficult to deal with. It is one thing which I find difficult enough to bring my mind to bear on, that you could get a declaration in civil proceedings as to the commission of a criminal offence. I find another one, that you will be committing a criminal offence when the offence in question is one of taking without authority.

MR McINTYRE: Yes, we plead it implicitly by saying that there will be a breach. Now, obviously, in pleading that there will be a breach, we are conscious of the provisions, we recited the particular provisions, sections 14(2)(ba) and 16, and so we would say that it is implicit in an understanding of what pre-conditions for a breach of sections 14(2)(ba) and 16 are, that there will not be a taking by licence. If it is to be in breach of those provisions it must be a taking without licence. That is the inference from the reference to the particular provisions and the pleading of a breach.

GAUDRON J: And what is the provision with respect to proceedings, is it the same as for the case of flora?

MR McINTYRE: No, it is section 26, which is at page 308.

GAUDRON J: Well, it is the same section.

MR McINTYRE: No, there is a section - - -

GAUDRON J: Called "Proceedings".

MR McINTYRE: Yes, it is.

GAUDRON J: So you rely on Mr Schoombee's submissions with respect to the difference in language in (2) and (3), I take it.

MR McINTYRE: Yes, between subsections (1) and (2) of section 26

KIRBY J: No, it is subsections (2) and (3) and the use of the "such" in (3). You just adopt those arguments.

MR McINTYRE: Yes, that is right.

KIRBY J: You just adopt those arguments.

MR McINTYRE: Yes, and adopt the arguments, of course, in relation to the question of offence provisions as to whether penalties can be imposed against the Crown and those sorts of submissions are all relevant to this argument. If I can go then to page 5 of our submissions in relation to sections 14(2)(ba) and 16 of the Wildlife Conservation Act.

What we say is that the court below seemed to come to a view that it was expressed in the Act that the Crown was not bound, however we suggest that really one could come to the contrary view quite happily and we suggest that that is the better view. That, firstly, the Act is there to protect wildlife, as set out in its long title. It provides similarly to the Aboriginal Heritage Act which was being dealt with by this Court in Bropho, that it applies to "all fauna, protected wholly throughout the whole of the State at all times", as we have recited there at paragraphs 2.1.2. In 2.1.3, that "all fauna is wholly protected throughout the whole of the State" is indicative of a strong intention of the Parliament because they upgraded, if you like, the protection of fauna from what was appearing under the Game Act and the Game Act 1912 -13. You will find in Chief Justice Malcolm's decision in West Australian Field and Game Association, which is there referred to, an analysis of that development of the legislation.

We say that sections 14(ba) and 16(2) which I have referred you to provide a special protection for fauna, and that the intention to protect fauna, as manifestly as it is shown by those provisions I referred to, would be frustrated if the Crown was not also bound in the same way as the Crown was said to be bound in Bropho v WA by the Aboriginal Heritage Act 1989 of Western Australia.

We say that one needs to take into account something of the legislative history of how that provision came to be there in relation to the fauna as distinct from the flora. There was, previously, a specific provision which said that the Crown was not bound in relation to fauna. That was repealed and not replaced by any provision which said anything about whether the Crown was bound in relation to fauna. However, what was occurring about that time was the amalgamation of two pieces of legislation. There was the Fauna Protection Act, as it was then called, it later became the Wildlife Conservation Act as I have outlined in 2.1.8, was merged with the Native Flora Protection Act.

In the merger, what occurred was that section 9, which had previously said the Crown was not bound in relation to fauna, was removed. It was replaced by a provision which related only to flora and then you have the sections 9(1) and (2) which Dr Schoombee has taken you to.

GAUDRON J: Now, we might adjourn at that point, I think. How are you going for time?

MR McINTYRE: I would think that I would probably be another half hour, subject to questions.

KIRBY J: Then will that be within the time limit that Justice Toohey, out of his beneficence, allowed.

MR McINTYRE: I think we will just manage, yes.

McHUGH J: I can tell you, I still want to be heard - I am sorry - I want to hear you as to why special leave should be granted in this case. I have some sympathy for some of the arguments you have put on questions of law in this particular case, but over nine years on this Court and four years on the New South Wales Court of Appeal, I do not think I have ever had to deal with a matter like this. This seems to me a sort of pleading point exercise that one would be involved in at first instance before the chamber judge. What is special about this case, having regard to the pleadings and the form, and the fact that on any view they require amendment?

MR McINTYRE: There are a number of pleading issues and I have been disappointed to hear how much time has been spent dealing with those issues, but that is why we tried to formulate that one page of issues which we thought - - -

McHUGH J: Yes, but you cannot avoid the fact that this case is all about pleading. Your case was struck out in the Western Australian courts because of the pleadings.

KIRBY J: I think you have to say, though it is about pleading, and though it is about a Western Australian Act, the Act which it raises is very similar to Acts all around Australia. It shows a fundamental mistake on the part of the Western Australian courts, the approach of pleading principles. And though it is true the High Court of Australia rarely visits pleading, this case has been its great chance.

MR McINTYRE: Yes, we have not enjoyed the process. We have tried to encapsulate what we say are the substantial issues in that one page set of questions. We say, for instance, the point I was just arguing is about the question of whether the Crown is bound by its own piece of legislation.

McHUGH J: Yes, I know, but they are really questions of law. If there is such a thing as a run of the mill questions of law, that is what is involved here. Look at the statute, what does it mean, do the facts alleged in this pleading come within it? What is special about the case? I know it deals with the environment but that is not a sufficient ground for special leave.

MR McINTYRE: We do have a small schedule to add, compiling several of the pieces of legislation which use the same sort of management plans in the various States. We have mentioned in our pleading - - -

KIRBY J: You better show that to Mr Solicitor because I do not think he concedes that the legislation is common or similar.

MR McINTYRE: We certainly will. We have listed two that deal specifically with logging issues in two of the States. There are others which deal with water and a whole range of other environmental sort of issues, but management plans are the way in which the legislature has dealt with it, particularly - - -

McHUGH J: I have to tell you, I do not think I have enough imagination to see a judgment that I can write that would have any value outside the particular facts of this case.

MR McINTYRE: Well, I am indebted to your Honour for foreshadowing it. Yes, and we will - - -

GAUDRON J: Which seem to be futurt facts which may or may not occur, or may or may not be proved at the end of the day.

KIRBY J: Has the Court helped you to focus your mind on the issue that is troubling it or something along- - -

MR McINTYRE: We will have a troubled lunch, your Honours.

GAUDRON J: We will adjourn till 2.15.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GAUDRON J: Yes, Mr McIntyre.

MR McINTYRE: Thank you, your Honours. What we do say about special leave questions are that they are demonstrated in our summarised set of questions. The matters about which I was going to address you in detail are the last two topics. We say that in relation to the question of whether the Crown is bound by legislation, in this case the Wildlife Conservation Act, there is a particular issue raised in the way in which the Full Court dealt with this in Western Australia, which ought to concern this Court.

GAUDRON J: Are not the questions in that regard a little hypothetical? I mean, you are asking us to assume that if the Crown is bound, and its servants and contractors are bound, that they will not be given the necessary licences and consents, are you not, in effect, at the end of the day?

MR McINTYRE: We are, only on the basis that they have responded to our statement that they will not - that they are not bound and therefore they are not obliged to give the licences. So that is the basis upon which we come to the Court. That is the way it was dealt with in the Full Court. The question of whether they are bound or not is the preliminary issue. I suppose if this Court was to tell them that they are bound, then they would perhaps turn around and deal with the issue of licences. At the moment, they are contending that they are not - - -

GAUDRON J: It hardly makes it a point of high legal principle of the kind that would attract the grant of special leave.

MR McINTYRE: Whether the Crown and its servants, agents and contractors are bound. I mean, certainly it is something which has exercised the minds of this Court on other occasions and what we say makes it of some interest is that this Court in Bradken v BHP said, "If the Crown chooses to contract with another party," - that is the Commissioner of Railways in that case contracting with BHP - "then they are entitled to give to the contractor the benefit of their shield. That is what is being said in this case.

We say that in fact if you look at Bradken v BHP in that sort of circumstance, compared to what this Court said in Bropho v WA, that there are two different approaches which are irreconcilable. We would say that Bropho v WA have been the later of the two cases, is the one which ought to bind how one deals with that circumstance in this kind of case. That is that the intent of the legislation is to bind the Crown and therefore the shield of the Crown cannot be extended to its contractor. We say that Mr Hogg in his analysis of Bradken is right when he says that that decision cannot be correct in these sorts of circumstances.

So there is an issue where this Court has taken different points of view which would apply differently to these circumstances, depending upon which of those two authorities one were to follow. So we say that in that sense there is a question which ought to be of interest to this Court and it is one - - -

McHUGH J: But the problem is deeper than that. If I sit down to write a judgment and I get paragraph 33 of the statement of claim and I might well say - in fact, my prima facie view at the moment is I would say that the Full Court was right on that paragraph as presently pleaded; however, there is this further point upon which a case could be constructed. The maximum relief, it seems to me at the moment, that you could get is to allow the appeal to allow you to replead. This Court is not here for those purposes. That is not a special leave point.

MR McINTYRE: We say it is in the sense that one has to get the right answer to the legal question. If you have the answer that the Full Court gave us, then we have no repleading possibilities, and Dr Schoombee said it several times, I suppose. That is the kernel of it, that if the highest court in Western Australia does not understand the law correctly - as we say it does not - then we can never proceed with this kind of litigation - - -

McHUGH J: But you are asking us to give, in effect, an advisory opinion not on facts properly pleaded but on facts that could be pleaded, and that is what you have got to grasp.

MR McINTYRE: If the Court says that the pleading just discloses there is no cause of action.

McHUGH J: Exactly; that is so. So if the Court says the pleading as pleaded is wrong, even though you do not agree with the reasoning of the Full Court, it just does not raise a special leave question, or not one that we should get into.

MR McINTYRE: We would contend that you could not and ought not to decide that on the basis of the particular form of the pleadings. We say that, particularly in this arena of the law, because other than Western Australia - if we were in New South Wales and these sorts of issues of fact and law were coming up before this Court, they would be coming up through an administrative review process which would not have pleadings, and so we would not be tangled up in the process of what the pleadings say and whether they have been properly constructed. These applicants would not be suffering the evils of the counsel that they had engaged to draft it for them.

So if we can remove ourselves from the question of what you accord to the defects of counsel's work and see whether you can isolate issues of law - and having listened to it for a day and a half, it is my impression that a number of your Honours have understood the concepts of law and have isolated what the issues are, and our - - -

McHUGH J: That is very kind of you to make that statement.

MR McINTYRE: I put it that because I suggest that there are issues of law that are capable of being understood and have been understood.

GAUDRON J: That is not really the question. The question is, do they arise in any meaningful way in the light of the pleadings or in the light of the need, perhaps, to make assumptions, which would seem to be a trifle unrealistic? For example, at the end of the day, with respect to the Wildlife Conservation Act, you would only get relief if there were no ministerial licence or consent.

MR McINTYRE: Yes.

GAUDRON J: That sort of makes it all a little bit academic, even a little removed from the reality of the situation.

MR McINTYRE: No. As my learned friend, Mr Schoombee, just reminds me, as he said to your Honour on one occasion, in the Jane and Sharpe cases they actually went ahead and logged without the ministerial consent. So that is what happened in those two cases. If it is said against us that we have not pleaded that precondition, I mean, it is a typical small issue of pleading which is the kind of thing which is capable of remedy by leave to amend. If that is isolated as the issue of the defect of the pleadings, then it is a very simple issue to give leave to amend. The broader issue of whether there is some substance in the pleadings generally Dr Schoombee has dealt with in some detail.

I would enjoin you perhaps to have a look at the statement of claim in the Bridgetown-Greenbushes' Case before you conclude your views on it. That is a slightly different style of pleading - and essentially, some of these questions are matters of style. I have taken your Honours to one small paragraph of it, and you will see that in that pleading what is done is to recite all the duties in paragraphs 3 and 4 and then recite the breaches in paragraph 8. I mean, if there are fatal defects in those pleadings, so be it, but what we say is that there are issues which are capable of being understood by the Court, have been understood by the Court, as it appears to us, and do raise the kinds of questions which we say are important and significant, the question, for instance, of whether in complying with the duties under the Conservation and Land Management Act it is sufficient to exercise one's discretion as one thinks fit, provided one acts honestly and in good faith, which is what the Full Court said in the Supreme Court of Western Australia, or whether in fact it is as we put it, that there is an obligation to take reasonable steps to comply with the precise terms of the forest management plan.

That is the issue in relation to the Conservation and Land Management Act. There are many ways in which one could plead it, but that is the issue. It is, in a sense, not a difficult issue and it has been said many times it could have been pleaded much more simply and shortly, but it is there. We say that you can discern that from the pleadings; it does require some careful reading but it is there. We say that if it is there, despite the shortcomings of the pleadings, then these applicants ought not to be denied that possibility if an intelligent reading and a careful reading of the pleadings can discern those basic legal issues. We say that is possible, and one can be as critical as one likes of the form and the quality and the - - -

McHUGH J: Mr McIntyre, one thing the profession has to understand is that basically, on the whole, matters end these days in the Courts of Appeal and Full Courts. They are the final courts of appeal, both as a matter of practice and as a matter of theory. We can only take some 90 cases a year, including constitutional cases, criminal cases. We just cannot bend the rules to take on a pleading case like this which is, on any view, I think it would have to be conceded, rather flawed, even if there may be some underlying points there. We have to write judgments, and it seems to me at the moment that we would be writing a hypothetical judgment. As I said to you, set out the paragraph and say, "Well, this is not good enough, however, if they pleaded it in a different way. Well, go back and start again."

MR McINTYRE: Yes. I mean, what we have to point to are particular errors of law. What we say, for instance, in relation to whether the Crown is bound by the Wildlife Conservation Act, Justice Templeman said, "Where the Act is now silent about whether the Crown is bound by the fauna provisions, I draw a conclusion that it is bound because I apply what he called the three-era test", which he drew from the dicta in Bropho. You might recall the Court said if legislation is passed prior to the Bombay Case then you may consider it differently whether it is passed between Bombay and Bropho or whether it is passed after Bropho.

What we say about that is that Justice Templeman has taken that dictum from the Judges of this Court, constructed it as an inflexible rule and applied that to say that in this case, the Wildlife Conservation Act, the Crown would not be bound where a very similar piece of legislation, the Aboriginal Heritage Act, in the same middle era that he is talking about, this Court found the Crown would be bound by it. We say that what the Court was doing in Bropho - - -

McHUGH J: At best, that only means an error. You have to understand that the fact that there is an error in the court below does not enable you to get a grant of special leave, and particularly when one is dealing of questions of statutory construction.

MR McINTYRE: Yes. What I was wanting to say about that - and I will persevere - is that Justice Templeman has used that test in a couple of cases which he has decided. He was in the majority judgment of the Full Court. It is now an approach which is going to be followed by at least the Full Court of the Supreme Court of Western Australia, perhaps because it is based on a dictum of this Court, followed by a number of other similarly levelled courts. That is the kind of problem which we say is a matter which this Court ought to be concerned about.

Remember, Bropho was there to remove the inflexible rule from the Bombay Case. What we say has now been constructed and in its place there is another inflexible rule. That is likely to permeate itself across that whole level below this Court. So that is the kind of issue which we say is worthy of some consideration by this Court. The other minor, perhaps lesser point, which are part of the written submissions I have prepared, is in relation to the question of natural justice. On one view, one might say, "Well, it's a fairly minor issue." What had happened is that Justice Templeman again, effectively writing the judgment for the court said, "Well, a local community, an incorporated body, cannot be representative of the local community."

That is a very extraordinary view, that there is some distinction between natural persons and corporate persons as to whether they can come within the concept of local community. Therefore, if that view prevails, which it will throughout the State of Western Australia at least, and we say perhaps throughout parallel courts throughout the Commonwealth, then all corporations are, if seeking to participate in that kind of a local community consultation process, which we say is used in the development of management plans in Western Australia, New South Wales, Victoria - there is a very similar piece of legislation in Tasmania - that view will prevail, that persons who are corporate are not entitled to be regarded as members of the local community for the purpose of consultation, which is regarded as one of the major precursor ingredients to the formulation of these kind of management plans.

So that the logging contractors, the local residents and ratepayers associations, the environment and conservation groups, all of those sorts of incorporated associations will be denied the capacity to engage in that consultation process. They will be denied that natural justice. We say that that could be a very pervasive concept which has been developed in this decision by the Supreme Court of Western Australia sitting as a Full Bench and is likely to have some impact upon how jurisprudence is looked at, at least to that level.

This Court has an opportunity to take a different view. I mean, we suggest that it is, in one sense, a relatively simple error on the part of the court, one which ought to be properly corrected. Whilst it is simple and it may have a particular application in this case, we say that because of the existence of a range of other similar pieces of legislation which operate in a similar way throughout the Commonwealth in the different States and Territories, that it is a matter which ought to be of concern.

We say, however, more generally, that this whole concept of the development of management plans and the way in which they are developed and the way in which the community participates in them, the obligations which it imposes upon the State to act in accordance with the them is probably the larger issue. That is probably, together with the natural justice issue, sufficient to give this matter that degree of significance, not only in the State of Western Australia but in the other States and Territories, to make it worthy of this Court granting special leave and considering those issues.

Some of the other pieces of legislation which I can refer the Court to are the Water Act of Victoria, the Water Resources Act 1989 of Queensland, the Water Resources Act 1997 of South Australia, the Catchment and Land Protection Act 1994 of Victoria, and the Native Vegetation Conservation Act 1997 of New South Wales. All of those involve public participation in the development of management plans for the purpose of management of either the forests or, as indicated by the title of some the Acts, water catchments, which, of course, are quite an important and significant part of the topography of a State. They all have this similar kind of management process.

Now, what this Court might be prepared to say in relation to this case about how duties apply to the Executive Government as directed by the Parliament through the head legislation and the management plans that follow it are matters which do have a potentially broad impact across the whole of this Commonwealth community.

Dr Schoombee mentioned that he would refer you to some authorities in relation to the question of whether a declaratory order can be made in a matter which might be otherwise the subject of criminal proceedings. We are indebted to his Honour Justice McHugh for those authorities which he referred to us and we say that they are all relevant and, if necessary, we can provide the detailed references for those who may not have made a note of them at the time.

We handed up to the Court copies of an extract from Young on Declaratory Orders which is taken from the second edition 1984. That reproduces portion of chapter 17 and refers the Court to some of the various authorities. Sankey v Whitlam, as you can see, is mentioned on the first page which Dr Schoombee mentioned and a collection of others but they all go, we say, to the point which was being made and which his Honour Justice McHugh referred us to.

I take your Honours in particular to a paragraph from Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 and I am reading from a passage at page 21 which says:

Most of the cases in which declarations have been made in matters which could have been, or were, the subject of criminal proceedings were cases where the criminal offence consisted of a breach of a regulatory provision, such as a failure to comply with an administrative requirement, a planning provision or a by-law. It has accordingly been suggested that a distinction should be drawn between offences involving moral turpitude - mala in se- and breaches of statutory and administrative regulations and prohibitions - mala quia prohibita - and that it is only in the latter case that a declaration will be made.

There is a reference to Zamir: The Declaratory Judgment, which is a 1962 publication, at pages 215 to 224.

McHUGH J: There is an English Court of Appeal case of Munnich v Godstone Royal District Council where somebody had pleaded guilty to an offence and yet, civilly, they got a declaration that they had not breached or did not need a licence.

MR McINTYRE: Yes. I am asked to remind your Honours that the problems raised in relation to the future conduct are not matters which we seek to pursue. That is our position in relation to that.

GAUDRON J: You said injunctions to prevent future conduct, though.

MR McINTYRE: Yes, that is so, yes, and we say that in the context of some logging having commenced in order to activate these actions in the - there is a debate going on as to whether we pleaded that in the Jane and Sharpe matters and our suggestion is that we have. In relation to the natural justice point, I would just like to take your Honours to the management plan which is at page 56 of the appeal books.

GAUDRON J: Could you also take me to the pleading, to direct me to the pleading?

MR McINTYRE: Yes. At page 56, starting just below line 5, what the management plan says is that it deals with:

Community Education and Interpretation Strategies -

and at dot point 1 it says:

These include:

Assessing the needs and expectations of general community, government, industry and special interest groups.

And at the final bullet point at about line 17 it refers to:

Consulting and liaising with groups outside CALM about the community education program for WA forests.

We say that when the Department of Conservation and Land Management and the Minister having approved that plan was talking about the community he seems to have been talking about groups rather than just individuals and so we say that it is a more appropriate conclusion than the one the Full Court reached - and I now take you to the pleadings at page 82:

the First Plaintiff and other members of the local community -

were denied natural justice.

GAUDRON J: How does that become a cause of action? How does it become - I just do not understand how that is a cause of action. I mean I understand how it might invalidate a decision.

MR McINTYRE: Is not that sufficient for it to be a cause of action?

GAUDRON J: No, I would not have thought so.

MR McINTYRE: We say that there are a number of bases upon which the Department of Conservation and Land Management, the respondents in this case, have said they will consult.

GAUDRON J: Do you not have to assert a duty to consult?

MR McINTYRE: Yes, and we do that.

GAUDRON J: With whom? You can assert one with community groups and I dare say you can assert a failure to do that at all.

MR McINTYRE: Yes.

GAUDRON J: But I cannot see where you go on your pleading.

MR McINTYRE: I mean, our pleading, I think, is relatively simple. We say there is a duty to consult which has arisen out of them giving the undertaking.

GAUDRON J: Where do you say that there is a duty? Where is that?

MR McINTYRE: It starts at page 80. It is the paragraph which is at about line 10 which is subparagraph (g). It is 8(g). It says that the Environmental Protection Act 1984 in the statement of the Minister for the Environment required that the defendants comply with:

Ministerial Condition 1-1 which requires that the Defendants fulfil the commitment to liaise with the local community in developing plans for the logging -

of the State forests - those particular forests. We say that, as we pleaded it, it was an undertaking to liaise with that particular local community in developing those particular local plans which are referred to there as HS0703. That is a reference to logging coupes in Hester, the Hester block, and the Kerr block is dealt with in paragraph 9 in a similar fashion. This is actually summarised in - - -

GAUDRON J: Do you assert a duty specifically to consult with the first plaintiff?

MR McINTYRE: We do not say that anywhere the Executive Director of the Department has said, "I will consult with the Bridgetown-Greenbushes Friends of the Forest." What we do say is that he has said, "I will consult with the local community" and what we then say is that the Bridgetown - - -

GAUDRON J: That is not what your pleadings say. Your pleadings say that you have failed to consult with the first plaintiff. That is at 82.

MR McINTYRE: Yes. We say that is an inference from the obligation to consult with the local community. We then have to establish that we are part of the local community and that we therefore, as a member of the local community, have an entitlement to be consulted with. We do not say that they came and specifically said other than that. We do say that they acknowledge being aware of our existence and the role that we have played and that is set out at paragraph 1 at page 70 - perhaps starting at page 69, we say that:

The First Plaintiff is an association -

and about the fourth line down we start the sentence:

The Plaintiff association was formed in 1987 in response to the Defendant'-s' public invitation to members of the public to participate in the Defendant'-s' procedures of public consultation on the management of State forests -

and we then say where that invitation can be found in the management plan. We then say over the page at page 70 between lines 5 and 10 at (ii):

The First Plaintiff's involvement in the processes of public participation conducted by the Defendants and the Environmental Protection Authority in respect of the planning and management of State forests and other forests -

is relied on. We then say at (v) at about line 17:

the recognition that the Defendants have accorded at all material times to the First Plaintiff as a responsible and representative body concerned with the conservation and proper management of State and other forests -

So we say that all of those things have occurred.

HAYNE J: But is the key the allegation at page 80 that the duty is to liaise with the local community?

MR McINTYRE: That is right, yes.

HAYNE J: I do not know what that means. I do not know what the content of an obligation to liaise with the local community is.

MR McINTYRE: That is the phrase that is used in the forest management plan.

HAYNE J: Just so.

MR McINTYRE: Yes.

HAYNE J: Exhortatory language of a kind more commonly found in press releases than in statutes or subordinate legislation.

MR McINTYRE: Yes, but does your Honour accept that the forest management plan does have the character of subordinate legislation in the sense that it - - -

HAYNE J: I am not here to answer questions. You are here to argue.

MR McINTYRE: I am sorry to put it in that way but that is what we put that that is the basis of it, that it is subordinate legislation. It may well be that they have chosen to express it in unusual language but we say that if one accepts the arguments in relation to section 33 of the Conservation and Land Management Act and how that relates to the creation of the management plan then albeit that the words may not be commonly known or understood by those of us who read legislation on a regular basis, they have to be given some content.

We say that they are capable of being given some meaning, that they are certainly capable of being given a meaning which includes the plaintiffs in this action where they are locally based corporations. We say that what the Full Court in the Supreme Court of Western Australia said which was that it might well be that natural persons who are members of this corporation could be regarded as members of the local community but that the corporation itself could not be so regarded.

McHUGH J: But at most it is a statement that they would consult and liaise with groups outside CALM about community education. It is groups.

MR McINTYRE: Yes.

McHUGH J: Now it is so vague that it is difficult to say that imposes a legal duty in respect of any particular individual, particularly a corporation.

MR McINTYRE: Yes.

McHUGH J: All it means is that this particular issue turns on perhaps what is meant by the words "with groups outside CALM". That is hardly a special leave point, Mr McIntyre.

MR McINTYRE: The only way in which it might be a special leave point is because Justice Templeman has excluded corporations from that term. Now, we say that that is - - -

McHUGH J: He may be right in respect of that, of if he meant his statement to have a more general operation, wrong. But we are dealing here with a very narrow issue.

GAUDRON J: Again, I am sorry. Can you just point me to where I can find the precise terms of ministerial condition 1-1?

MR McINTYRE: Yes, that can be found at page 1 of the application books - - -

GAUDRON J: Yes, but where is the commitment to liaise?

MR McINTYRE: Yes, that says that they shall fulfil commitments. The commitments are set out in a separate document and it is not - - -

GAUDRON J: They are the ones that did not appear before.

MR McINTYRE: That is among the documents that are not before you and as, I think, Dr Schoombee eventually said, if that is a matter which is of concern to the Court they can be provided. They were before the courts below. We had to exercise some discretion as to how much paper we were going to give to the Court and that was one of the documents we left out. It is also mentioned in our pleadings at page 80 of the application books, about line 15, in paragraph (h)(e)i, and that is where it says:

The Defendants have not complied with Ministerial Condition 1-1 which requires that the Defendants fulfil the commitment to liaise with the local community -

which I think I read out before. In conclusion we would urge that really, probably the most important question is the one relating to the Conservation and Land Management Act, and what the nature of the duties are which the first respondent is obliged to comply with, that there are a number of connected questions to that. The natural justice one, which I have just exposed is one of those. Whether the Crown is bound by the fauna provisions of the Wildlife Conservation Act is a matter which we suggest is dependent upon balancing what we say are contradictory decisions in these circumstances of the Bropho Case and the Bradken Case and otherwise, I cannot imagine the Court has any other questions. Those are our submissions.

GAUDRON J: Thank you, Mr McIntyre. Mr Solicitor, the Court would be pleased if you would, at this stage, simply address the question whether special leave should be granted, rather than the detailed questions of the case.

MR MEADOWS: In our submission, the case does not raise any question of general importance and perhaps, if I could put that in some little context, the questions that have been framed and which are before the Court, are framed to include notices of contention which were put forward by the respondents as a basis for further justifying the decisions which were made by the court below in relation to the pleadings. So, for example, if one looks at questions 1, 4 and 11, they are raised by way of notice of contention by the respondents, those issues having been answered in the applicants' favour. These would only arise for consideration by the Court should special leave be granted.

Question 15, of course, is a matter which is raised by way of cross appeal and all the remaining questions apart from questions 8, 9 and 10, relating to whether the provisions of the Wildlife Conservation Act relating to fauna bind the Crown, depend on the particular pleadings. I should point out that the Full Court accepted that in an appropriate case a civil court could grant both injunctive or declaratory relief in relation to a breach of criminal provisions such as those referred to in the Wildlife Conservation Act and the Environmental Protection Act. These are the ones that give rise to the questions 6, 7 and 13. What the Full Court did there was simply to say that on the case that had been put in the pleadings, such relief would not be available. It did not fall within the exceptional circumstances which would be required to exist before such relief could be granted. The court did not deny that that relief could be available.

HAYNE J: Does it follow, therefore, that at least to that extent a fresh action, properly pleaded, might be a vehicle in which such issues could be agitated without being met by a plea in bar?

MR MEADOWS: We would have to accept that, your Honour. In fact, we would accept that there could be no plea of res judicate or issue estoppel in relation to any of the facts pleaded.

McHUGH J: That seems to me to be the case. In any event, the decision below says that there is no cause of action on the facts alleged in this particular document.

MR MEADOWS: Quite so, your Honour.

GAUDRON J: Can we take it that if the applicants were, in fact, to commence fresh proceedings, you would take no such point?

MR MEADOWS: I have no instructions in that regard, your Honour, but certainly that would have to be the advice I would offer.

KIRBY J: But the Court itself is not bound by your concessions, the Court may well take the view as a matter of practicality and, I think, you would concede this, that having formulated certain views concerning the construction of the legislation, that it would simply follow that construction.

MR MEADOWS: I would have to say that there are some findings of the Full Court which are against the applicants and which would, presumably, be taken into account and followed in any additional proceedings that might be - - -

KIRBY J: That is a very proper concession and that seems to be the practicality. They would simply follow their view of the construction of the Act and so we would have the spectacle that we have sat here for a day and a half hearing this case, we have set aside time and all the parties come from Western Australia, we would then have the matter go back and if, and this seems extremely dubious, the applicants could raise the funds to mount another application, they would have to come through the whole process again to the rather farcical application to the Full Court to change its mind, then make a fresh application to this Court. It seems rather unrealistic, does it not?

MR MEADOWS: I cannot speak for the funding of the applicants - - -

KIRBY J: No, but is not that the reality? I mean, we have to be realistic. You are at one end of the table representing government with public funds, they are at the other end of the table representing citizens who have come to this Court.

MR MEADOWS: Certainly they are at the other end of the table representing some citizens, I accept that, and that there may be financial constraints facing them, but the fact is - - -

KIRBY J: It is not may be, there would be. I mean, if they are ordinary citizens, they do not have the funds of government. They have to dip into the pockets of ordinary people. They are here, they have brought their case to - I assume this was agreed between the parties that, in order to get these days, they would come to Hobart. This is not the ordinary place where an appeal from Western Australia would be heard.

MR MEADOWS: I accept that, your Honour.

KIRBY J: We have heard a day and a half's argument.

MR MEADOWS: I think if one could portray it, one would say that what the applicants have been seeking to do is to be able to persuade the Court that there is a case for special leave here. Our submission is that, on the basis of the pleadings that are the subject of this appeal, that they have not been able to do so. They have not raised - - -

KIRBY J: But what if they have made out a case that certain of the constructions by the Court of Western Australia are wrong. In that event, they simply cannot get to the courts justice, have a case heard on the merits, until they have those rulings overturned and they are here to have them overturned.

MR MEADOWS: If I could just take up Justice McHugh's point, that not all decisions of courts of appeal are right, but - - -

KIRBY J: But they are here now. I mean, this is not an ordinary special leave application. It would have all been over, packed up after half an hour or an hour. This is a case where, for whatever reason, I was certainly not involved in this, it must have been ordered by another Justice, these days were set aside, so presumably on the basis that the Court would hear the whole argument.

MR MEADOWS: Yes, I appreciate that, and if I could offer an explanation for that. It is not a matter lacking in complexity in that we are dealing here with three sets of pleadings and some quite complicated issues that have been pleaded. Justice Hayne, I am sure, could speak better than I could on this subject, but it seemed to me, reading the transcript, that the Court did have some difficulty in getting a grasp of the complexities and that, for that reason, rather than to put the applicants out of court at that time, they gave them the opportunity to fully elaborate their arguments, so that if after that, there appeared to be a basis upon which special leave should be granted, then maybe it would. The truth of the matter is that after the elaboration that has happened in the last day and a half, in our submission, it can be said that no question of general importance is raised in this appeal or this application.

One of the issues which was raised was that there is other legislation which could be relevant to any outcome in these proceedings. In the special leave application there are two pieces of legislation referred to and this is at page 529, the dot point at the bottom of the page, is the first piece of legislation that is referred to and it apparently does not deal with management plans, as such. Secondly, is the Conservation, Forests and Lands Act (Vic), which deals with a code of practice for timber production. My learned friend referred to a number of other pieces of legislation, this is my learned friend Mr McIntyre, this afternoon, where he says that there is a reference to management plans in relation to water and also some other environmental protection areas. The point about this case is that we are here dealing with a specific management plan and what - - -

KIRBY J: The suggestion is that - and I can say it from my experience in the Court of Appeal of New South Wales, that these management plans or local environmental plans, or plans of this kind, have become very common in this country. They are not traditional expressions of law as we are more familiar with them. Whether it is a good thing or a bad thing, they have become very common and the suggestion made is that it is, having gone this far, useful for this Court to give some guidance on the approach. Are they simply exhortations, or are they matters of law which, by the command of the Parliament of Western Australia, must be carried out? The management of the land must be in accordance with that plan. Parliament meant something. I am addressing the obligation of Parliament, not what the Executive Government wants to do.

MR MEADOWS: I understand what your Honour is putting to me. May I just say this, though, that here we are talking about the particular plan and it is the obligations that arise under that particular plan.

KIRBY J: Of course it is, in every case. It is a particular case that we have to - but the questions is, does this have ramifications for other environmental laws of this kind?

MR MEADOWS: But the duties that are pleaded, the duties that have been pleaded and struck out, or more correctly, the duties that have been pleaded have been extracted from this particular management plan and for this reason they do not give rise to any issues of general importance, we would say.

KIRBY J: I can only tell you, I have sat in cases where there has been the same language and I have had the same feeling about the language, that it is, in effect, politicians trying to say things in general terms, or bureaucrats trying to say things in general terms which, when you come to the crunch, is not easy to enforce. But the problem that is presented, and this is the problem of principle, is that by section 33(3) of the Western Australian Act, Parliament has said that it has to be complied with - - -

MR MEADOWS: No, it says it has to be managed in accordance with.

KIRBY J: That is right.

MR MEADOWS: So it does not mean that it has to be complied with in the sense that any particular requirement of it has to be fulfilled in some particular way - - -

KIRBY J: That is the issue.

MR MEADOWS: It is the issue, because the reason this pleading was struck out was because the Full Court said that the ways in which the applicant said these duties were to be fulfilled were not ways which could be said to flow from the management plan. That is all the case says, that the way in which this case was pleaded does not give rise to any breach of duty under the management plan. Our submission is quite shortly that this case just does not give rise to any question of general importance which warrants the grant of special leave.

GAUDRON J: Yes, thank you, Mr Solicitor. Mr Schoombee, do you wish to reply to that aspect, at this stage?

MR SCHOOMBEE: I will be very brief, just to say, your Honour, that just in relation to the pleading point, in taking up the issue raised by his Honour Justice Kirby, that finding of the court was, of course, tied to the crucial issue in this case as to what standard must you perform the management plans. And that, let me say, was not tied to our pleadings in any way. The court looked at the document, looked at not only what the wording was but the nature, as they saw the obligation, what is called an obligation, and said it is a very special type of obligation, in law you only breach it if you act without honesty and not bona fides. That is the crucial point, because it was from that aspect that the pleading flow. So it is said - and they were talking about reasonable steps, the outcome, we say, would have been certainly different and it would have been different on the question of whether the case should go on. I just want to make that point.

GAUDRON J: Thank you. The Court will take a short adjournment to consider the course it should take in this matter.

AT 3.05 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.23 PM:

GAUDRON J: We need not trouble you further, Mr Solicitor. What I am about to say is the view of the majority.

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 (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 1984 (WA).

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 licence (s 16(1)) or without the written consent of the Minister (s 23F). 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 Wildlife Conservation Act 1950 raise matters which border on the hypothetical and are not appropriate to attract the grant of special leave.

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 proceeding (see Tampion v Anderson [1973] VicRp 82; (1974) 48 ALJR 11) 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 Court, 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 pleading 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 merits.

Secondly, at least arguably, the legislation which has been construed here is common, or at least similar, to legislation in other jurisdictions of Australia. Environmental legislation of the kind which we have explored in this hearing is now quite common in this and other countries. 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 plan (see Conservation and Land Management Act 1984 (WA), s 33(3)). 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 applicants. 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 law. 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 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

(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 sanctions; 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 proceedings.

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 detailed 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 application is 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.

GAUDRON J: The order of the Court will be that the applications for special leave are refused.

Before coming to you, Mr Solicitor, I should note that in the remarks I read out I referred to the appellants, the reference should have been to the applicants. Yes, Mr Solicitor.

MR MEADOWS: May it please the Court, I am instructed to apply for costs.

GAUDRON J: Yes, Mr Schoombee.

MR SCHOOMBEE: Your Honours, we would seek leave to file submissions on costs within 14 days. It is a matter raising public interest issues. There are special features: the fact that we have come here; we are aware of the decision in the Oshlack Case, there may be arguments whether that applies; materials have been filed in this Court at an earlier stage - - -

GAUDRON J: We are all here, why cannot you deal with it?

MR SCHOOMBEE: I am aware of the Oshlack decision, but I am not - certainly I would like to study it in greater detail to be able to make proper submissions. All we ask is for leave to file short submissions.

GAUDRON J: Then the Court has to turn its mind to those again. Ordinarily, costs are dealt with on a special leave application.

MR SCHOOMBEE: We respectfully submit that there were special circumstances here.

GAUDRON J: What do you say, Mr Solicitor? Do you object to the 14 days?

MR MEADOWS: I do not see how I could, your Honour.

McHUGH J: Counsel might note that on the last special leave day in Sydney, an Oshlack-type argument was raised in respect of a special leave application in the Court; nevertheless, it made an order for costs.

GAUDRON J: The applicants are to have 14 days in which to make their submissions in writing and the respondents are to reply within a further seven days. The Court will now adjourn.

AT 3.42 PM THE MATTER WAS CONCLUDED