Posted on April 14, 2025 by Bianca Crapis and Liam Mulligan 1

UPDATE: High Court upholds common law principles of standing by persons with a “special interest”

In a recent decision, the High Court unanimously dismissed an appeal from the NSW Court of Appeal in an important case dealing with the common law principle of “standing” and the steps required to demonstrate a “special interest” in a given subject matter.

As a reminder, “standing” is a legal term which refers to whether a person is entitled to commence proceedings in a particular forum or regarding a particular issue. Some statutes, including many environmental statutes, specifically restrict the person or entity who can commence proceedings about particular issues. In some cases, an Act will not expressly limit the persons who can bring proceedings, but it may still be necessary for a prospective litigant to demonstrate a “special interest” in the subject matter of proceedings generally in order to establish standing.

In May 2024, the Court of Appeal overturned a decision of the NSW Land and Environment Court (LEC) in which that Court found that the applicant – South East Forest Rescue Inc. (SEFR) – lacked standing to bring particular proceedings because it could not demonstrate a “special interest” in the subject matter of the proceedings. We discussed the NSW Court of Appeal’s decision in South East Forest Rescue Inc v Forestry Corporation of New South Wales (No 2) previously and you can read our blog on that decision here: The principle of standing in environmental litigation – a recent development

Background

SEFR commenced proceedings in the Land and Environment Court (LEC) seeking to enforce duties and obligations contained in an Integrated Forestry Operations Approval (IFOA), under which Forestry Corp carried out forestry operations, as well as obligations under Part 5B of the Forestry Act 2012 (NSW).

Forestry Corp argued that the Forestry Act operated to exclude common law standing principles, and that in any case SEFR lacked standing because it did not have a “special interest” in the proceedings.  Forestry Corp relied on s 69ZA of the Forestry Act, which provided that certain types of proceedings (importantly, including proceedings to restrain a threatened or apprehended breach of an IFOA) could not be brought except by specified people, such as the Minister or the EPA. A judge of the LEC rejected that argument, but found that SEFR did not have standing at common law as it could not demonstrate a “special interest” in the subject matter.

SEFR appealed to the Court of Appeal, which reversed the LEC’s decision. The Court of Appeal found that s 69ZA excluded “open standing” (that is, where proceedings may be brought by any person regardless of standing) but did not expressly exclude common law standing principles. Therefore, persons who satisfied the common law test for standing, including those with a special interest in the subject matter of the proceedings, could enforce the duties and obligations imposed by an IFOA and Part 5B.7 of the Forestry Act 2012 (NSW).

Importantly, the Court of Appeal found that SEFR did have a sufficient special interest because:

• it had an approximate 20-year history of taking active steps and tangible action in relation to its beliefs and concerns, and
• it had demonstrated a deep concern regarding logging and its effects on the welfare of forest-dependent threatened species, including the Greater Glider.

Forestry appealed to the High Court.

The High Court’s Decision

The sole issue before the High Court was whether proceedings to enforce duties and obligations under an IFOA and Pt 5B could be commenced and maintained by private persons with a “special interest” in the subject matter of the proceedings, or can only be commenced and maintained by the specific persons identified in s 69ZA(3) (there was no challenge to the Court of Appeal’s finding that SEFR did in fact have a “special interest” in the subject matter of the proceedings).

The High Court upheld the Court of Appeal’s finding that such proceedings could be commenced and maintained by persons with a “special interest” in the subject matter of the proceedings. The High Court found that, in the absence of a clear and unmistakable statutory intention to exclude common law principles, proceedings could be commenced and maintained by persons whose private rights were interfered with, or who had a special interest in the subject matter of the proceeding. This formulation reflects the two-limbs of the common law test of standing in Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114.

Important to this finding was the fact that the LEC has power (called “equitable jurisdiction”) to grant relief to persons who satisfied the common law test of standing. At least so far as the enforcement of public duties and obligations is concerned, the High Court held that a finding limiting the LEC’s jurisdiction should not be drawn unless the language of the Act is clear and unmistakable. In this case, a clear and unmistakable intention to that effect was not demonstrated by Forestry Corp.

On this basis, the appeal was dismissed. You can read the decision in full here: Forestry Corporation of New South Wales v South East Forest Rescue Incorporated [2025] HCA 15

In terms of public interest litigation in the LEC, the High Court’s decision is an important one, as it makes clear that a party who can satisfy the common law test for standing by demonstrating a special interest in the subject matter – such as a longstanding and deep concern about a particular issue – will be able to bring proceedings regarding that subject matter (including seeking to enforce public rights and duties) unless the particular legislation excludes such proceedings in clear and unmistakable language.

If you have any questions regarding this article, please leave a comment below or contact Liam Mulligan on (02) 8235 9715 or Bianca Crapis on (02) 8235 9739.