Background
Angelia Moscardo commenced proceedings alleging breaches of the National Parks and Wildlife Act 1974 (NSW) arising from the mustering, trapping, and removal of wild horses under the Kosciuszko National Park Plan of Management. At the urgent hearing, she orally sought an interlocutory injunction stopping all passive trapping of pregnant mares and foals in Kosciuszko National Park until the end of February 2027, during peak foaling season. She accepted that the order would effectively stop all passive trapping because traps cannot distinguish among horses entering them.
Moscardo relied on the plan of management and a national standard operating procedure stating that capture and handling should be avoided when mares are foaling or have dependent young. She argued that trapping pregnant mares or foals breached the statutory prohibition against harming animals in national parks. The Secretary responded that the operating standards were guides that had to be read together, and that they expressly contemplated pregnant mares and foals being trapped while prescribing safeguards for their handling and transport.
The Court’s Holding
Pain J refused the injunction because Moscardo had not established a serious question to be tried. The Court held that passive trapping of pregnant mares and foals was not contrary to the operational requirements of the plan of management. The cited standard did not impose a binding prohibition, and its own provisions contemplated that pregnant mares and foals might be trapped. Earlier authority also indicated that the Secretary’s duty to implement a plan of management does not create separate legal obligations to complete or comply with every policy or action in the plan.
The balance of convenience also did not favor Moscardo. She tendered no evidence establishing actual or likely harm to pregnant mares or foals, making the asserted risk speculative. Evidence before the Court estimated that between 6,476 and 16,411 wild horses remained in the park, so the alleged risk that continued trapping would reduce the population below the plan’s 3,000-horse target was remote. Halting passive trapping would also require traps to be dismantled and could lead to greater reliance on lethal control methods. Moscardo offered no undertaking as to damages.
Key Takeaways
- Guidance advising that trapping during foaling season should be avoided did not amount to a binding prohibition on trapping pregnant mares or foals.
- An urgent injunction requires evidence supporting both a serious question to be tried and the claimed risk of harm; unsupported assertions were insufficient.
- The Court considered the practical consequences of stopping a non-lethal population-control method, including the possible increased use of lethal methods.
Why It Matters
The ruling confirms that individual policies and operating procedures within a national-park management framework are not necessarily enforceable as discrete statutory commands. A challenge to implementation must identify a legally arguable breach of the governing statute or plan, rather than merely an inconsistency with non-binding guidance.
It also illustrates the evidentiary burden on applicants seeking urgent environmental or animal-welfare injunctions. Even where the alleged harm could be serious, the Court will not treat it as established without evidence and will weigh the operational and environmental consequences of the requested restraint.