By Emily Shipp, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.

Citation: Animal Liberation Ltd v Department of Environment and Conservation [2007] NSWSC 221

Court – Supreme Court of New South Wales  
Judge – Hamilton J 
Date of Judgment – 8 March 2007

FACTS OF THE CASE

The Department of Environment & Conservation, the defendant, proposed to carry out an aerial shooting operation of goats and pigs in Nattai Reserve and Wollondilly River Nature Reserve. The plaintiff, Animal Liberation Ltd, sought an interlocutory injunction to restrain this operation on the basis that it would likely involve breaches of the Prevention of Cruelty to Animals Act 1979 (‘the Act’). Specifically, Animal Liberation suggested that acts of cruelty were likely to occur because animals may be wounded and then die a long, inhumane death.

THE ISSUE

Whether the plaintiff had standing to bring the proceedings.

THE DECISION

The Act does not provide a legislative basis for standing, therefore the Court applied the common law rules as set out in Australian Conservation Foundation v The Commonwealth (1980) 28 ALR 257 (‘ACF’).

Hamilton J held that Animal Liberation did not have standing and thus, must fail in their application for an injunction. Hamilton J’s decision was based on ACF. In that case it was stated that:

It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty … a private citizen who has no special interest is incapable of bringing proceedings …

Later it was held that:

An interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.

Hamilton J held that Animal Liberation was not “interested” within the meaning of the rule and that it accordingly did not have standing. While Animal Liberation had a “worthy sentiment” in bringing proceedings, it did not have the required “special interest”. Although not made explicit in the judgment, Hamilton J appeared to conflate “worthy sentiment” with “mere intellectual or emotional concern”.

COMMENTARY

This case highlights the how the attainment of standing represents a major hurdle in animal protection litigation. To be successful, the person bringing the action must have a “special interest” in its subject matter, that is, they must stand to “gain some advantage”; a “mere intellectual or emotional concern” is not sufficient. While courts could construe the interests of persons bringing actions to protect the interests of animals either way, this case represents an example of where an organisation has been found to have no more than an intellectual concern.