Re Australian Conservation Foundation, the Wilderness Society Inc and Tasmanian Conservation Trust Inc v Forestry Commission; Michael Manifold Helsham, Robert Henry Wallace and Peter Phillip Hitchcock and Commonwealth of Australia [1988] FCA 32 (19 February 1988)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN CONSERVATION FOUNDATION, THE WILDERNESS SOCIETY INC. AND
TASMANIAN CONSERVATION TRUST INC.
And: FORESTRY COMMISSION; MICHAEL MANIFOLD HELSHAM, ROBERT HENRY WALLACE and
PETER PHILLIP HITCHCOCK AND COMMONWEALTH OF AUSTRALIA
No. TG14 of 1987
Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987

COURT

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)

CATCHWORDS

Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 - Interim report - Review under Administrative Decisions (Judicial Review) Act 1977 - Locus standi of environmental bodies which appeared in the Inquiry to seek review - Whether the interim report involved the making of a decision of an administrative character - Whether it should be inferred from silence about a particular consideration that it was not taken into account - Whether irrelevant factors taken into account or relevant factors omitted - Whether an irrelevant factor (though discussed) played no part in the decision - Whether consideration of irrelevant factor was "insignificant" - Nature of questions relating to the "natural heritage" under the Convention for the Protection of the World Cultural and Natural Heritage scheduled to the World Heritage Properties Conservation Act 1983 - Nature of "qualifying areas" under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987.

Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987, ss. 3, 4, 8.

World Heritage Properties Conservation Act 1983, Schedule Article

Administrative Decisions (Judicial Review) Act 1977, ss. 3, 5.

HEARING

HOBART
19:2:1988

Counsel for the Applicants: Mr. J. Basten

Solicitor for the Applicants: Henry Brookman

Counsel for the 1st Respondent: Mr. W. Bale, QC, Mr A. Hemming, Ms B. Baker

Solicitor for the 1st Respondent: Director of Public Prosecutions

Counsel for the 2nd Respondent: Mr. D. Graham, QC, Mr J. Gobbo

Solicitor for the 2nd Respondent: Australian Government Solicitor

Counsel for the 3rd Respondent: Mr. S. Charles, QC Mr C. Maxwell

Solicitors for the 3rd Respondent: Australian Government Solicitor

ORDER

That the application be dismissed.

That the motion made upon Notice of Motion filed 8 February 1988 be dismissed.

That liberty be reserved to the respondents to the application and to Gunns Kilndried Timber Industries Limited to seek orders in respect of their costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (the Act), a commission was established to inquire into and report on a number of matters relating to world heritage and potential world heritage areas in parts of Tasmania, and the impact that preservation of those areas would have on the Tasmanian forestry industry. "The object of this Act", it was stated in s.4,

"is to provide for measures that will enable

effect to be given, in relation to the
Lemonthyme area and the Southern Forests
area, to Australia's obligations under the
Convention, in particular the obligations to:

(a) identify and delineate the natural
heritage and cultural heritage; and

(b) take appropriate measures to protect and
conserve that heritage."

The convention mentioned in this section is an international convention known as the Convention for the Protection of the World Cultural and Natural Heritage, the English text of which is conveniently set out in the schedule to the World Heritage Properties Conservation Act 1983. I shall refer to it as "the Convention".

2. One aspect of the object identified in s.4(b) of the Act was to provide protection from forestry operations, pending the inquiry and for a short period thereafter, for areas which it might ultimately be decided to conserve. Under s.3 of the Act, the expression "protected area" is defined to mean "the Lemonthyme area and the Southern Forests area, other than any part of either area that is an excluded area." Section 16 makes it unlawful, during a period the end of which is uncertain, but must come within a little over one year from 8 May 1987 (the date of commencement of the Act), to cut down a tree or do other things involved in forestry operations in the protected area. Pursuant to this section, an interlocutory injunction has issued out of the High Court pending determination by that Court of the validity of the Act: Richardson v. Forestry Commission [1988] HCA 10; (1987) 73 ALR 589.

3. The first question which the final report of the Commission must resolve is "whether there are any qualifying areas" (s.8(1)(a)). A qualifying area is defined in s.3 as follows:

"'qualifying area' means so much of any area
that is:

(a) wholly or partly within the Lemonthyme
area or the Southern Forests area; and

(b) a world heritage area or an area that
contributes to the integrity or values
of:

(i) a world heritage area that is
wholly or partly within the
Lemonthyme area or the Southern
Forests area; or

(ii) a nominated world heritage area;
as is not a nominated world heritage
area;"

4. I have previously had to construe this definition (Forestry Commission v. Helsham, unreported, 26 November 1987). It is unnecessary for present purposes to say more than that an area otherwise meeting the definition may be a qualifying area:

(1) because it is a world heritage area;

(2) because it is an area that contributes to
the integrity or values of the Western
Tasmania Wilderness National Parks, a
nominated world heritage area; or

(3) because it is an area that contributes to
the integrity or values of a world
heritage area wholly or partly within the
Lemonthyme area or Southern Forests area.

5. Whether an area is a world heritage area depends on whether it forms part of the cultural heritage or the natural heritage (see definitions in s.3). A nominated world heritage area is, briefly, an area of Tasmania submitted by the Commonwealth under the Convention as suitable for inclusion in the World Heritage List. The argument in this case concentrated to some extent upon the meaning of the "natural heritage", an expression which is defined in the Convention (see s.3 of the Act). Article 2 of the Convention provides:

"For the purposes of this Convention, the
following shall be considered as 'natural
heritage';

natural features consisting of physical and
biological formations or groups of such
formations, which are of outstanding
universal value from the aesthetic or
scientific point of view;

geological and physiographical formations and
precisely delineated areas which constitute
the habitat of threatened species of animals
and plants of outstanding universal value
from the point of view of science or
conservation;

natural sites or precisely delineated natural
areas of outstanding universal value from the
point of view of science, conservation or
natural beauty."

6. Because it was recognized the protected area might include areas which could never be found to be qualifying areas, and should not be left in virtual quarantine for over a year, the Act provides a mechanism for exclusion of such areas from protection. Section 8(5) reads:

"The Commission shall:

(a) in the performance of its functions
under this section, give priority to
identifying any part or parts of the
Lemonthyme area and the Southern Forests
area that are definitely not qualifying
areas; and

(b) as soon as practicable, report to the
Minister the identification of any such
part or parts, specifying the area
concerned."

7. Within 14 days after receiving an interim report, the Minister is required to arrange for publication of notice in the Gazette specifying the area identified in the report. The effect of that publication is that the area specified is by definition no longer part of the protected area (s.3 - definitions of "protected area" and "excluded area").

8. The performance of the Commission's obligation under s.8(5) in the event proved to be delayed. In its interim report, made 20 November 1987, it explained that for the first four months of its brief term of one year, by reason of the High Court challenge to the validity of the Act and the suggestion of the Tasmanian government and the Forest Industries Association of Tasmania that participation in the inquiry by them might jeopardise that challenge, the Commission was without any submission identifying areas asserted to be definitely not qualifying areas. The Commission, in the interim report, considered a number of small areas (referred to as "coupes", the industry term for an area intended to be cut as one logging operation), and the locations of some proposed roads, which the Forestry Commission of Tasmania eventually put forward under s.8(5). It declined to hold, in the cases of a number of them, that they were "definitely not qualifying areas", but reported that two coupes in the Lemonthyme and two coupes in the Southern Forests are definitely not qualifying areas. While the Commission was only asked, under s.8(5), to make an interim report concerning a few small areas, it may be observed the coupes in the Lemonthyme constitute only one one hundred and thirtieth of the Lemonthyme, while the other two coupes constitute considerably less than one two thousandth of the Southern Forests. Of course, their significance is said by the applicants to lie in their relationships to larger areas.

9. The Minister duly published the appropriate notice in the Gazette on 4 December 1987.

10. The applicants, who contended before the Commission that no part of the areas specified could be said to be definitely not a qualifying area, have applied to this Court under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) for review of the decisions of the Commission embodied in the interim report in respect of the four coupes. Initially, the application named as respondents, in addition to the Forestry Commission, the members of the Commission. Having regard to what was said in the joint judgment of the High Court in The Queen v. The Australian Broadcasting Tribunal, Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-6 (see also, arguendo, at 17), the application was amended to add the Commonwealth as a respondent and it has appeared at the hearing to support the decision of the Commission.

11. In its original form, the application asserted a denial of natural justice, that the Commission failed to take into account relevant matters which it was bound to take into account, that it took into account irrelevant matters, and that its decisions were so unreasonable that no reasonable persons could have so decided. The allegations of denial of natural justice were expressly withdrawn, in part by amendment of the application prior to the hearing, and altogether at the commencement of the hearing. The allegation of unreasonableness, though not abandoned, was not supported by any argument of substance; it amounted to no more than an assertion that particular evidence should have been accepted, an assertion that failed to recognize the Commission's right to accept or reject opinions and evidence of witnesses, and the possibility that it was properly influenced by material which is not before the Court. Thus the substantial issues revolved around whether the Commission unlawfully failed to take account of relevant issues or took account of irrelevant issues.

12. At the outset of the hearing, objection was taken on behalf of the Forestry Commission to the competency of the application. It was submitted that the interim report did not involve the making of a decision of an administrative character for the purposes of s.3(1) of the Judicial Review Act, and further that the applicants had no locus standi as persons aggrieved within s.5(1). In the view I take, it is unnecessary to spend much time on these points. I think the application is competent, and the applicants are persons aggrieved.

13. So far as concerns the question whether there is here a decision of an administrative character, I refer to what was said by Bowen C.J., Sheppard and Fitzgerald JJ. in their joint judgment in Lamb v. Moss [1983] FCA 254; (1983) 49 ALR 533 at 556. I have previously stated my understanding that a decision in the sense there expounded, and as since applied in a number of authorities, includes a "ruling or determination upon some question ... which issues in some action": Squires v. Attorney-General of the Commonwealth of Australia (1986) 12 FCR 84 at 87. That the decision presently in question is administrative, and not judicial, seems to me, with respect to the learned Solicitor-General, to be quite clear.

14. The point of locus standi as a person aggrieved is in my opinion concluded in favour of the applicants by the passage from the judgment of Barwick C.J. in Sinclair v. Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at 478 which Gibbs J. cited (and distinguished, but with no suggestion of disapproval) in Australian Conservation Foundation Incorporated v. The Commonwealth of Australia (1980) 146 CLR 493 at 532. The applicants, who were given leave to appear by the Commission and did participate in its hearings, had a right to have their submissions considered according to law.

15. It was not submitted on behalf of the Forestry Commission or the Commmonwealth that, the gazettal having been permitted to proceed, the application was a futility. The argument assumed that the Act did not allow the notice in the gazette effect if the Court set aside the interim report for vitiating error of law. How this would impinge upon the position of persons who acted in the coupes on the faith of the notice in the meantime was not explored.

16. In order to understand the issues raised by the application, it is necessary to see what is bound up in the question whether the disputed areas were definitely not qualifying areas. Whether an area was said to be possibly a qualifying area as being part of a world heritage area, or as being part of an area that contributes to the integrity or values of a world heritage area, a central problem for the Commission was the possible application of the definition in the Convention of "natural heritage".

17. There is a sense in which any tree (or natural site containing trees) has a supreme "natural beauty", -

"I think that I shall never see
A poem lovely as a tree" -

in which any area of karst is a natural feature created by forces of quite fascinating complexity from the "scientific point of view", in which the habitat of any threatened species is precious. But none of these will suffice for the convention unless, from the relevant point of view, whether it be science conservation or natural beauty, the judgment is made that this example is "of outstanding universal value". In what sense "outstanding universal value" is to be understood if any threatened species may lack it, I do not find easy to imagine; yet the convention seems to assume such a case may exist. The point is not that anything turns, in the argument presented to me, on an evaluation of the worth of a threatened species, but that it is emphatically clear the convention, by the use of the words "outstanding universal value", sets a very special standard for the "natural heritage" it aims to protect.

18. The standard is expressed - as was made clear in the applicants' final submission to the Commission where it was said: "In the context of 'world heritage', it is clear that the relevant feature must be prominent, conspicuous or striking on an international or global scale. A more precise definition cannot be propounded." - in terms which demand an attempt to weigh imponderables, and an ultimate exercise of judgment upon questions of degree. To the difficulties of such a task must be added the difficulty of deciding, in respect of particular areas, whether this standard (among other criteria) is definitely not met. Parliament has entrusted the task to the Commission, and my function is the limited one of deciding questions of law, not fact, arising out of its proceedings and report. In the case of a commission especially selected to carry out the inquiry for which the Act provides, there is perhaps particular force in the dictum of Lord Brightman in Puhlhofer v. Hillingdon London Borough Council [1986] UKHL 1; (1986) AC 484 at 518, which has already been cited more than once in judgments of Full Courts of this Court:

"The ground upon which the courts will review
the exercise of an administrative discretion
is abuse of power - e.g. bad faith, a mistake
in construing the limits of the power, a
procedural irregularity, or unreasonableness
in the Wednesbury sense - unreasonableness
verging on an absurdity: see the speech of
Lord Scarman in Reg. v. Secretary of State
for the Environment, Ex parte Nottinghamshire
County Council [1985] UKHL 8; (1986) AC 240, 247-248.
Where the existence or non-existence of a
fact is left to the judgment and discretion
of a public body and that fact involves a
broad spectrum ranging from the obvious to
the debatable to the just conceivable, it is
the duty of the court to leave the decision
of that fact to the public body to whom
Parliament has entrusted the decision-making
power save in a case where it is obvious that
the public body, consciously or
unconsciously, are acting perversely."

19. In the present case, the Commission reported on an interim basis, and as a matter of priority, as required by s.8(5). Its very much more comprehensive, and principal, duty must be completed before the end of the period ending one year after 8 May 1987 (s.8(4)). Having regard to the circumstances and the purposes of the interim report, the Commission could hardly have been expected, in that report, to enter upon the detailed discussion which the final report may require. The interim report either accepts or rejects contentions that, as to certain areas, the position is clear. In a case of rejection, a single factor may be sufficient to warrant it. In a case of acceptance, it might be enough to note that there is no suggestion the area qualifies except upon a particular basis and that a claim so based cannot possibly succeed. Indeed, s.8(5) expressly requires the report to contain only "the identification of any such part or parts (i.e. parts that are definitely not qualifying areas) specifying the area concerned."

20. In fact, the interim report is not so sparse. It contains more than a minimum of discussion. But the applicants' argument relies on the omission of some considerations which are said to be important. There is no doubt that the omission to mention a matter expressly in a report or in reasons for a decision can lead a court, upon an examination of the whole of the context, to conclude that the matter was not considered. But it need not do so. It is a question of the proper inference. Not every matter taken into account must be set out expressly. In my opinion, in considering the inferences to be drawn, I am entitled to bear in mind the nature of an interim report envisaged by the Act and the circumstances under which it was prepared. At the same time, Puhlhofer's case gives warning that I should be on my guard against straying from the question whether there was an omission to take legally necessary account of a consideration, and into the Commission's exclusive province of evaluation of that consideration.

21. In the nature of things, not all the evidence which was before the Commission is before me. That makes it more difficult to hold a particular matter ought in law to have been considered in relation to an area, or if it ought that it was not, since it is possible some part of the evidence I have not seen may have made the position plain. It may have gone without saying. If it went without saying, the Commission's failure to say it shows no error of law.

22. It was submitted that the Commission was required to have regard to the Operational Guidelines for the implementation of the World Heritage Convention, issued under the aegis of UNESCO. However, the interim report makes it quite clear that the Commission did accept the criteria set out in these guidelines, which were extracted as an appendix. Those criteria retain as requirements all the superlatives of the convention, while adding further "conditions of integrity".

23. Certain matters should be stated which were not in dispute. The Commission understood the expression "contributes to the integrity or values" as referring to something "having a real and substantial effect on that integrity or those values". It was accepted that this understanding was correct. Likewise, the applicants had no quarrel with the Commission's interpretation of the use of the word "definitely" in s.8(5) as "intended to ensure that it had to be very well satisfied indeed" to identify an area as definitely not a qualifying area.

24. With these considerations in mind, the terms of the crucial findings made in the interim report may now be examined. Of the two Lemonthyme coupes in question in this application, the first is Coupe GA120B. After referring to its location and previous and proposed operations upon it, the report states, under the heading "World heritage or contributing values", the following:

"No material placed before the Commission
discloses the presence or likelihood of there
being anything of any real significance from
a conservation or scientific point of view
within this coupe. Any possible nexus with
the world heritage area is a scenic one, but
this is so tenuous as to be non-existent in
reality. In any case, the resulting
disturbance to the viewfield from the west
will be minimal because of the limited nature
of the proposed timber removal."

25. In the context of an interim report that the particular area is definitely not a qualifying area, this statement, so headed, should be read as indicating that both the possibility of the area having values that made it part of a world heritage area, and the possibility of it being part of an area that contributed to the integrity or values of a world heritage area, were considered and rejected. The heading cannot sensibly be read otherwise than as referring in a summary way to these questions. Especially is that so in the light of the fact that all the factors required to be considered had already been set out in previous portions of the report. Reference had also been made to the contentions and counter-contentions of the applicants and the Forestry Commission regarding the Forth Valley, in which the two coupes were situated. It is not suggested these were misrepresented. They were stated compendiously:

"It was submitted that the whole of the Forth
Valley contributes to the integrity or values
of the adjoining world heritage area within
the meaning of the Act and is on that basis a
qualifying area in toto. Other claims
asserted that the area was a world heritage
area in its own right or as an extension of
the existing world heritage area.

These claims and assertions were denied in
other submissions made to the Commission.
Material was placed before the Commission
directed to establishing that the area had no
special attributes that might enable it to be
found to be a qualifying area."

26. The Commission was not, of course, bound to accept the opinions of any particular experts, especially on matters of degree and the application or possible application of superlatives, which were for the Commission itself to determine. It may have accepted views propounded by any party, including the Forestry Commission.

27. That it is most improbable the members of the Commission failed to take account of any possible linkage between the area in question and other areas which might possibly be qualifying areas is confirmed by a number of considerations. In detailed evidence, and in elaborate submissions, all suggested linkages were before them; the earlier parts of the report show their appreciation of the issues arising under the definition of qualifying areas; and in some of those parts of the report which decline to hold that particular areas are definitely not qualifying areas reliance is expressly placed on just such possible linkages. (I shall return to these in more detail later.) The applicants' argument is that they overlooked, in respect of some coupes, the considerations they applied in favour of the applicants in respect of others. That order of inconsistency is not really credible.

28. However, the applicants seize on the reference to "the proposed timber removal" in the Commission's reasoning. It is submitted the question is not what activities are proposed to be undertaken on the land, but simply whether it is definitely not a qualifying area. So much may be accepted. But the report had earlier stated:

"The fact that the Forth Valley forms part of
the viewfield from various vantage points
within the adjoining world heritage area has
occupied a central role in relation to the
problem of whether the three coupes in the
Lemonthyme area and the proposed site of
further road construction ought to be
classified as definitely not qualifying
areas. The scenic qualities and the
wilderness values (whatever they might be) of
the adjoining world heritage area are claimed
by some to be threatened by the proposed
forestry operations in the three coupes and
the proposed roadworks.

A considerable body of material, including
photographs, has been placed before the
Commission directed to establishing how much
of the manmade changes to the natural state
of the Forth Valley can now be seen from the
various vantage points in the world heritage
area, and what visual effect, if any, the
proposed forestry activities in the three
coupes are likely to have. It was
demonstrated to the Commission that the
Oakleigh Creek mine site is visible from a
number of the vantage points. Some evidence
was directed to the likely incidence of noise
resulting from forestry industry activities."

29. It was admitted in argument that a case had been made for the applicants that timber operations would mar the scenic beauty of the view from the world heritage areas, and from other areas claimed to be part of the natural heritage. That seems to imply a contention that an area can make a negative contribution to the scenic values of a world heritage area. For if the contribution is positive, that is if the scene is enhanced, assuming the other requirements are met, the definition of qualifying area is satisfied and the effect of logging is immaterial. But a negative contribution, by not displaying a scar in the viewfield, can only be evaluated by asking what potential scar the area is averting. Therefore, it seems to me, the applicants, by the case they presented, required the Commission to examine the matter it is now said they improperly considered.

30. It may be that a vitiating error could still be found, though the applicants induced it. The real answer to the contention is that the Commission only considered the effect of the forestry operations as an argument in favour of the applicants, not against them. Having considered it, they rejected it, and it cannot have played any part in their decision. Their fundamental finding was that any possible scenic nexus with the world heritage area was "so tenuous as to be non-existent in reality". They then looked as a separate matter at the applicants' argument that nevertheless scarring from logging operations could affect the view, and rejected it. If that was inadmissible, as the applicants now say, the rejection of the argument shows it did not affect the outcome. It is true that a decision-maker may not take account of an irrelevant consideration; but I think he may pick up a red herring, turn it over and examine it, and then put it down, so long as he does not allow it to affect his decision. In the present case, I am satisfied the examination of the effect of the logging operations played no part in the decision. If an insignificant irrelevant factor may not vitiate a decision (see Minister for Aboriginal Affairs v. Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 40), one that plays no part at all in the decision need not do so. Strictly, having regard to the reasons given by the Commission, the impugned consideration was here at most insignificant.

31. The other Lemonthyme coupe in question is Coupe LA45. The Commission referred, in this case also, to the location of the coupe, and to the previous and proposed operations on it (it had already been 75% logged). The Commission then considered its decision under the same heading "World heritage or contributing values". Again, the Commission made clear its conclusion that no factor satisfying the requirements of a qualifying area was raised. So far as any possible contribution by the coupe to the scenic values of a world heritage area is concerned, the Commission noted that it is visible from Cradle Mountain, but described it as non-obtrusive and "virtually non-evident". The coupe is also "shield(ed) ... from view from the west".

32. It is plain the only factor which gave the members of the Commission pause was the possible scenic blemish (by way of scarring produced by logging) which might result from the proposed operations. They rejected the proposition that any significant scarring could occur, as seen from any relevant point, and therefore dismissed this factor from further consideration. I think the Commission's reasoning relating to this coupe should be seen in the same light as that relating to Coupe GA120B.

33. An interesting comparison may be made with Coupe LA49, which the Commission thought had little to recommend it, but which it was not prepared to classify as definitely not a qualifying area because of "the likely visual impact of the result of the proposed forestry operations from certain of the world heritage area viewing points." The really significant thing is the way the conclusion was couched. The Commission reported:

"The Commission found itself in doubt as to
the degree to which this coupe might
contribute to the integrity or values of the
nearby world heritage area. It was not able
to reach a decision that it was not a
qualifying area to the degree of satisfaction
that the expression 'definitely not'
requires."

Far from allowing its consideration of the proposed operations (in this case the vital factor precipitating the decision) to divert it from its true task, the Commission made it clear that the significance it attributed to the proposed operations related to "the degree to which this coupe might contribute to the integrity or values of the nearby world heritage area". In other words, it proceeded on the basis of what was called in argument a negative contribution to scenic values; it did not proceed upon any conclusion about the forestry operations themselves.

34. Of the two Southern Forests coupes in question, the first is Coupe JB4. The report states its location and that the proposed operations consist of roadworks of a length of 3.4 kilometres. Under the familiar heading, the following is stated:

"The vegetation includes regrowth and
oldgrowth Eucalyptus regnans damaged by fire
(circa 1934). Much of the area appears to
have no forest, and there is some pure
rainforest in some of the deeper valleys. A
resume of the vegetation is given in pp13-14,
Exhibit 71 (proof of K.C. Felton). There is
no suggestion that the stand of Eucalyptus
regnans in this coupe is regarded as suitable
for reservation.

The material before the Commission suggests
that the only matter of real interest on or
in or near this coupe is some karstic
features in the area immediately adjoining.
However, this did not rank as one of the more
important sites in the Southern Forests.
There is a possible area of palynological
interest in the same vicinity. Both these
features are now known to the Forestry
Commission."

35. It may be convenient to note that the word "karst" generally refers to a type of limestone region of which apparently a part of Yugoslavia is typical, and that palynology is the study of certain fossil pollens.

36. In this case, the conclusion is stated as follows:

"In the absence of any features that might
give this area any significance from a world
heritage point of view or that might make any
contribution to a world heritage area, the
Commission is of the opinion that coupe JB4,
as delineated in Map 7, is a definitely not
qualifying area. It reports accordingly."

37. The final area in question is 9.75 hectares of Coupe DN10C, being the 15% of the coupe which is within the borders of the Southern Forests. Under the same heading, the report states of this:

"The timber standing in the relevant portion
of the coupe is oldgrowth Eucalyptus obliqua,
Eucalyptus delegatensis and Eucalyptus
johnsonii. The material before the
Commission does not disclose any attributes
that might give the coupe (or that part
within the protected area) values as a
potential world heritage area or contributing
area. In making this statement, the
Commission is aware that a small stand of
King Billy Pine has been detected in this
coupe (see transcript pp589-590)."

38. I can see no indication that any irrelevant consideration may have been taken into account in relation to either of these coupes. The bare statement, in respect of the former, that certain features "are now known to the Forestry Commission" does not provide such an indication. So far as concerns the question whether any relevant consideration has been omitted, I have discussed earlier in these reasons a number of factors which militate against a conclusion that mere silence about a factor in this interim report can be taken to indicate it was not considered.

39. Having referred to what the report says about the coupes in question, it is now opportune to refer to certain passages dealing with other coupes which cast light on the inferences to be drawn from what is not said at some points. These passages are important because it was submitted for the applicants that the report is flawed by a failure to take account of the possibility that the areas in question are potentially of significance to surrounding bigger areas which may be qualifying areas in themselves. It was also put that the Commission had confined its attention, so far as the question of possible contribution to the integrity or values of a world heritage area is concerned, to such a possible contribution in respect of the nominated world heritage area, overlooking possible world heritage areas wholly or partly within the Lemonthyme or the Southern Forests. These arguments have an air of singular unreality. If they are correct, the Commission failed to comprehend its own statement (set out earlier in these reasons) of its statutory task, very much of the evidence, and the submissions put to it. But the contentions must be examined in the context of the whole of the report.

40. When one turns to those sections of the report which deal with coupes the Commission thought did possibly fall within the definition of qualifying areas, it seems to me beyond dispute that it did have well in mind the considerations on which the arguments depend. For example, the Commission was quite depreciatory of Coupe SN21, saying:

"(I)t is very unlikely that the trees on this
coupe would qualify the area as being of
world heritage status. The Commission is not
aware at this stage of any other attribute
specifically referable to this area that
would be likely to give it world heritage
status."

Yet the Commission felt able to add:

"However, there is an area in the South Styx
Valley, of which coupe SN21 forms part, that
can be called a mosaic of tall eucalypt
forests. Eucalyptus regnans is certainly
present if not the dominant species. The
area is close to the Snowy Range where there
are alpine plant communities and possibly
some King Billy Pine. The interrelationship
and interdependence of the sequence of
rainforest, tall eucalypt, conifer and alpine
communities makes the area one that needs
further consideration as a possible
qualifying area. If it were, it is quite
possible that SN21 might make a substantial
contribution. The Commission is not prepared
to assert at this stage that any part of the
whole valley is a definitely not qualifying
area."

41. Similarly, in relation to Coupe PC48A, the Commission referred to an area known as the Mount Bobs-The Boomerang area, which is not part of any nominated world heritage area. It said:

"(T)he material put before the Commission
indicates that special attention will have to
be given to the Mount Bobs-The Boomerang area
as a discrete area having attributes that
might justify it being rated as a qualifying
area. The precise definition of any such
area is an exercise that will need careful
examination if such rating is justified.

Coupe PC48A lies at the foot of the northeast
spur of Mount Bobs, and it is possible that
the area may be one that contributes its
integrity or values."

Those passages clearly refute the suggestion that the Commission lost sight of possible contributions to the integrity or values of possible world heritage areas outside the nominated world heritage area.

42. For these reasons, the application must be dismissed.

43. When the matter was called on for hearing, a further application was made by notice of motion for an interlocutory injunction to restrain certain activities of a company, Gunns Kilndried Timber Industries Limited (Gunns), in Coupe LA45, pending the determination of the principal application. On the basis that it was expected I would deliver these reasons at this time, that motion was deferred. It also should now be dismissed.

44. I reserve liberty to the respondents and Gunns to seek orders in respect of their costs.