Fauna and Flora Research Collective Inc v Secretary to the Department of Environment, Land, Water and Planning
[2018] VSC 366
•4 July 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
S CI 2017 04392
| FAUNA AND FLORA RESEARCH COLLECTIVE INC | Plaintiff |
| v | |
| SECRETARY TO THE DEPARTMENT OF ENVIRONMENT, LAND, WATER AND PLANNING | First Defendant |
| and | |
| VIC FORESTS | Second Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 June 2018 |
DATE OF JUDGMENT: | 4 July 2018 |
CASE MAY BE CITED AS: | Fauna and Flora Research Collective Inc v Secretary to the Department of Environment, Land, Water and Planning & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 366 |
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P R D Gray QC with Ms K Foley | Environmental Justice Australia |
| For the First Defendant | Ms L D Ferrari SC with Mr A Solomon-Bridge | Victorian Government Solicitor |
| For the Second Defendant | Mr H Redd | Baker McKenzie |
HIS HONOUR:
Pursuant to the Forests Act 1958 (the Forests Act) the first defendant (the Secretary) has a duty to prepare and cause to be put into operation working plans in relation to State forests.[1] The ‘forest management plan’ for the East Gippsland Management Area published in December 1995 and amended in 1997 (the FMP) is one such working plan.
[1]Section 22(1)(a) of the Forests Act.
In 2014 the ‘Code of Practice for Timber Production 2014’ (the Code) was published. The Code was made under pt 5 of the Conservation, Forests and Lands Act 1987 (the CFL Act) and is a prescribed legislative instrument. The Secretary is responsible for ensuring compliance with the Code on State forests. The plaintiff alleges, and the Secretary denies, that the Secretary is a public authority as defined in the CFL Act, and must not take action contrary to the Code.[2]
[2]Section 67(1) of the CFL Act.
The FMP and the Code each provide for protection of old growth forest.
In this proceeding the plaintiff alleges the Secretary has failed to comply with statutory obligations to protect old growth forest. A central allegation of non-compliance, which the plaintiff says is a part of the strategy contained in the FMP, and a requirement of the Code, is that the Secretary failed to protect at least 60 per cent of old growth forest in two ecological vegetation classes. The plaintiff seeks declarations that the Secretary has breached provisions of the Forests Act and the CFL Act.
The plaintiff and the Secretary are in dispute in relation to the pleading and the prayer for relief in an amended statement of claim in which the plaintiff pleads that the Secretary has breached the statutory obligations over a period of time. The Secretary argues that, on the case against it, the issue which arises is whether, if it is subject to the obligations the plaintiff identifies, it is currently in breach of those obligations, and any pleading alleging past breach of the identified obligations is irrelevant and embarrassing, and a declaration of past breach by the Secretary will produce no foreseeable consequences for the parties. The Secretary has applied to rescind leave previously given to the plaintiff to amend the statement of claim and, in the alternative, to strike out the impugned paragraphs of the amended pleading.
Procedural history
The plaintiff commenced the proceeding by filing a generally endorsed writ on 31 October 2017. Pursuant to orders made since:
(a) the plaintiff filed its statement of claim on 24 November 2017;
(b) the Secretary filed its defence on 17 January 2018; and
(c) the plaintiff filed its reply on 2 February 2018.
When the matter came before me for directions on 7 March 2018 the Secretary submitted that it appeared, from the content of the reply, further particulars provided by the plaintiff, and communications between the plaintiff and the Secretary in relation to the ambit of discovery, that the plaintiff now intended to run a broader case than was pleaded in the statement of claim. The plaintiff disputed this was so. After discussion it was agreed, in order to remove uncertainty as to the case the Secretary would be required to meet at trial, that the plaintiff should be given leave to file and serve an amended statement of claim. I made an order to that effect. The plaintiff filed the amended statement of claim on 20 March 2018 (the ASOC).
By summons filed 18 June, the secretary applies for the following orders:
(a) that the leave previously granted to the plaintiff on 7 March 2018 to file and serve an ASOC be rescinded;
(b) alternatively, that, pursuant to 23.02 of the Supreme Court (General Civil Procedure) Rules 2015, paragraphs 22A, 22B, 24A(i), 24A(ii) and 24B(iii) of the plaintiff’s ASOC dated 20 March 2018, together with paragraphs A(iii), A(iv) and B of the prayer for relief therein, be struck out.
That summons is supported by two affidavits of solicitor Annette Jones affirmed 15 June and 22 June 2018. The plaintiff relies on an affidavit of solicitor Danya Jacobs affirmed 20 June 2018. It was agreed I could have regard to those affidavits in respect of the application to rescind leave, but not the strike out application.
Legislative framework
The following definitions are contained in s 3(1) of the Forests Act:
Working plan means a detailed scheme for the control and regulation of the working of a forest or any part thereof and for ensuring the maintenance of a sustained yield of forest produce therefrom;
Secretary means the body corporate established by Part 2 of the Conservation, Forests and Lands Act 1987;
The general powers of the Secretary are contained in s 18 of the Forests Act, which relevantly reads:
Subject to this Act the Secretary shall protect State forests and shall have the control and management of—
(a) State forests …
The powers and duties of the Secretary in relation to working plans for State forests are contained in s 22(1), which relevantly reads:
The Secretary—
(a)shall prepare and cause to be put into operation working plans with respect to the control, maintenance, improvement, protection from destruction or damage by fire or otherwise, and removal of forest produce in and from each State forest and any part thereof;
(b)may from time to time revise any such working plan and shall cause the revised working plan to be put into operation; and
(c)forthwith after the preparation or revision of any such working plan shall submit the same to the Minister.
The following definitions are contained in s 3(1) of the CFL Act:
Code of Practice means a Code of Practice under Part 5 as amended and in force for the time being;
public authority means a body corporate created for a public purpose by or under an Act and includes—
(a)a municipal council; and
(b)the State Superannuation Board; and
(c)a college or university or other educational institution incorporated by or under an Act; and
(d)a body for the time being declared to be a public authority under subsection (3);
The provision of the Act which establishes the Secretary as a body corporate is s 6(1), which reads:
The person who is for the time being the Department Head (within the meaning of the Public Administration Act 2004) of the Department and the successors in office of that person are a body corporate under the name “Secretary to the Department of Environment, Land, Water and Planning”.
The plaintiff relies on the prohibition in s 67(1), which reads:
A public authority must not take action contrary to a Code of Practice, or the Secretary's comment made under section 66 unless—
(a)the authority is satisfied that there is no feasible and prudent alternative; and
(b)all measures that can reasonably be taken to minimize the adverse effect of the action are taken.
The FMP
The FMP, which was published in 1995 and amended in 1997, is a working plan for the purposes of s 22(1) of the Forests Act. It contains a forest management strategy which adopts a zoning scheme that divides State forest in the East Gippsland Management Area into three forest management zones (the FMZ scheme), one of which is a Special Protection Zone (the SPZ). The plaintiff alleges the FMZ scheme is constituted, recorded and represented by a spatial data set maintained by the Secretary (the FMZ 100 spatial data set), and that the FMP contains conservation guidelines which set minimum levels of protection for key biological values in State forests. The FMP states that timber harvesting is to be excluded from the SPZ.
The FMP:
(a) outlines a strategy for conservation of ‘old growth forest’ in the East Gippsland Forest Management Area;
(b) adopts a definition of ‘old growth forest’, and a classification of ‘ecological vegetation classes’ (EVCs);
(c) as part of the strategy provides that at least 60 per cent of old growth forest in each EVC will be protected in the SPZ and conservation reserves (the 60 % minimum strategy); and
(d) records particulars of old growth forest as at 1995, including the proportion of old growth forest in each EVC that was formally protected.
The Secretary pleads that the 60% minimum strategy is an unenforceable guideline.
The Code
The Code was made under pt 5 of the CFL Act, and was published in 2014. The plaintiff pleads that zoning requirements which form part of the Code as it applies for the East Gippsland Forest Management Area include a requirement that ‘the following proportion of each old growth forest EVC should be incorporated into conservation reserves or the SPZ:
(a) all viable examples of rare or depleted (generally less than 10 per cent of the extant distribution) old growth forest EVCs wherever possible; and
(b) at least 60 per cent of the extent of all other old growth forest EVCs present in 1995 (the 4.6.4.4 requirement).
The ASOC
In paragraph 19A of the ASOC the plaintiff alleges that the obligation of the Secretary under s 22(1)(a) of the Forests Act to put into operation the FMP requires the Secretary to meet the minimum levels of protection specified in conservation guidelines in State forests (including the 60% minimum strategy), and adopt and maintain the FMZ Scheme by identifying forest management zones that provide the minimum levels of protection specified in conservation guidelines.
Paragraph 22A of the ASOC reads:
In breach of the obligation at paragraph 19A(b), the Secretary has:
(a)maintained the FMZ Scheme in a manner that does not identify forest management zones (specifically, SPZ) which provide the minimum levels of protection specified in the 60% minimum strategy; or, alternatively,
(b)omitted to maintain the FMZ Scheme in a manner that identifies forest management zones (specifically, SPZ) which provide the minimum levels of protection specified in the 60% minimum strategy.
Particulars
In 2011, the Secretary amended the FMZ scheme in East Gippsland [Forest Management Area] in a manner which resulted in the area of old growth forest in the wet forest and damp forest EVCs protected in conservation parks and reserves or SPZ being less than 60% of old growth forest in the wet forest and damp forest EVCs present in 1995 or at the time of the Woodgate Study.
Since 2011 (or alternative, since 2014) the Secretary has made (or caused to be made) amendments, from time to time and approximately each quarter, to the FMZ Scheme that in turn have led to the updating of the FMZ100 spatial dataset in a manner that identifies forest management zones contrary to the 60% minimum strategy.
The Plaintiff refers to and repeats the particulars to paragraph 22 above.
In paragraphs 24(a)(i) and (ii) the plaintiff alleges the Secretary has failed to comply with obligations in s 22(1)(a) of the Forests Act by failing to maintain the FMZ scheme in a manner consistent with the 60% minimum strategy. And in paragraph 22(b)(iii) the plaintiff pleads that the Secretary breached the obligation in s 67 of the CFL Act by failing to maintain the FMZ scheme in a manner that complies with the 4.6.4.4 requirement.
The prayer for relief against the Secretary in the ASOC includes:
A. Declarations that: …
iii.the Secretary has breached s 22(1)(a) of the Forests Act by failing to ensure that an area of old growth forest that is at least 60% of the area of old growth forest, as identified in the FMP, in each of the wet and damp forest Ecological Vegetation Classes in the East Gippsland Forest Management Area, are protected in the Special Protection Zone and conservation reserves;
iv.the Secretary has breached s 22(1)(a) of the Forests Act by failing to maintain the FMZ Scheme in the East Gippsland Forest Management Area in a manner that provides the minimum level of protection by SPZ for old growth wet and damp forest specified in the FMP.
B. Declarations that:
i.in breach of s 67 of the Conservation, Forest and Lands Act 1987, the Secretary has taken action contrary to the Code of Practice for Timber Production 2014 (Code) by maintaining the FMZ Scheme contrary to the requirement in section 4.6.4.4 of Appendix 5 to the Management Standards and Procedures (4.6.4.4 requirement), in circumstances where the conditions in s 67(1)(a) and (b) of the Conservation, Forest and Lands Act have not been met;
ii.in breach of s 67 of the Conservation, Forest and Lands Act, the Secretary has taken action contrary to the Code by failing to comply with the 4.6.4.4 requirement, in circumstances where the conditions in s 67(1)(a) and (b) have not been met.
The parties’ submissions
The Secretary
In a written outline of submissions the Secretary set out its essential complaint that the ASOC significantly broadened the factual dispute in ways which:
(a) will add significantly to the length and costs of trial (and the burden of discovery);
(b) are not connected to the relief originally sought; and
(c) flow only (if at all) into new prayers for declaratory relief which, however, would produce no foreseeable consequence for the parties and for that reason would, at the end of the much longer and more expensive trial, be refused.
The Secretary submitted first that in paragraphs 19A and 22A of the ASOC the plaintiff now pleads that the Secretary has, since 2011 and at unspecified times thereafter, breached its obligations by the way in which it amended the FMZ scheme, ostensibly because the Secretary did not cause 60 per cent of each EVC to be protected at the time of each amendment. The Secretary developed this submission as follows:
Even if the Secretary could be said to have been in breach of some enforceable obligation as at 2011, the plaintiff also pleads that the [FMZ scheme] has been amended approximately each quarter since that time. Thus, whatever the legality of the position which obtained as at 2011, and of any past ‘failure to maintain’ the [FMZ scheme], that position has been superseded, on the plaintiff’s own case, on approximately 30 occasions.
Second, if the plaintiff succeeds in establishing that the Secretary is subject to obligations to protect old growth forest as alleged, the only question is whether, on the present state of affairs, the Secretary is complying with that obligation. Earlier iterations of the FMZ scheme are irrelevant to the resolution of that question.
Third, in paragraphs 19A and 22A the plaintiff alleges, in effect, some 30 or so sequential past breaches, and a present unlawful state of affairs. If, as is required, the form of the declarations were tightly correlated to the impugned conduct,[3] it would be crystal clear that the pleading and prayer for relief offends the principle that a declaration cannot be made if it ‘will produce no foreseeable consequences for the parties’.[4]
[3]Regis Aged Care Pty Ltd v Secretary, Department of Health (No 2) [2012] FCA 454 at 16–17.
[4]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581–582; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 613 [52].
The Secretary submitted that the decision in Gardner v Dairy Industry Authority[5] was illustrative. In Gardner, Mason J stated that:
[5](NSW) (1977) 52 ALJR 180.
It is one thing to say that declaratory relief will be granted against the Executive or a statutory authority in relation to existing rights and transactions. It is quite another thing to say that it should be granted in respect of past transactions under legislation which has been repealed or amended when the court's declaration will produce no foreseeable consequences for the parties.
To similar effect, Aickin J stated:
I agree that it is not proper to make a declaration in respect of past transactions under legislation which has been repealed or amended and when the court's declaration can produce no foreseeable consequences for the parties.
The Secretary submitted that declarations A(iii) and (iv) and B(i) and (ii) sought in the ASOC, to the extent they purport to follow from the allegations of historical conduct by the Secretary, have the same deficiencies as identified in Gardner.
Fourth, an aspect of the Court’s ability to review and revisit interlocutory orders made in a proceeding, is the power to rescind a grant of leave to a party to take a step in a proceeding in light of further information or argument.[6] The overarching purpose in s 7 of the Civil Procedure Act 2010, to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute, is relevant to the exercise of discretion as to whether leave to file and serve the ASOC should be rescinded. The real issue in dispute is whether the Secretary is currently in breach of obligations it bears under the Forests Act and the CFL Act. Allegations of past breach by the Secretary are irrelevant to that issue, yet will expand discovery and extend the duration of trial. In those circumstances leave to amend the statement of claim should be rescinded. For the same reason, pleaded allegations which only lead to inutile or inappropriate declarations, as in this case, should be struck out on the grounds they tend to prejudice, embarrass or delay a fair trial of the proceeding.
[6]National Employers Mutual General Association Ltd v Waind (1978) 1 NSWLR 372 at 386 per Moffatt P (Hutley and Glass JJA agreeing); Sanofi v Parke Davis Pty Ltd (1982) 149 CLR 147 at 152 per Gibbs CJ, Steven and Mason JJ).
The plaintiff
The plaintiff submitted, first, that the principle objection of the Secretary to the ASOC – that the plaintiff seeks declarations which have no foreseeable consequences for the parties – assumes positions in relation to content of the obligations imposed by s 21(1)(a) of the Forests Act and the prohibition in s 67 of the CFL Act that have not yet been judicially determined. Until the scope of those provisions have been determined, it is not possible to say the impugned declarations will produce ‘no foreseeable consequences’. It may be determined that construction of one or both of the statutory provisions means that a court can only grant a declaration that relates to a failure that extends over a period of time continuing to the present. It was submitted it was far from clear that a transitory failure would constitute failing to ‘put into operation’ the FMP for the purposes of s 22(1)(a).
Second, it was wrong to suggest, as the Secretary does, that declarations as to past conduct are per se to be presumed inutile or of no consequence. Declarations about past conduct in contravention of statutory duties or prohibitions can clearly carry consequences, not least because of the obligation of the Executive branch to act in accordance with judicial declarations as to the law.[7]
[7]Commissioner of Taxation v Indooroopilly Children’s Services [QLD] Pty Ltd (2007) FCAFC 16 [3]-[7] per Alsop J, Stone and Edmands JJ agreeing.
Third, the decision in Gardner[8] is distinguishable because it concerned past transactions under iterations of repealed or amended regulations. Here the legislative framework has remained the same throughout the course of the Secretary’s conduct. Fourth, allegations of failure to perform the duty imposed by s 22(1)(a) of the Forest Act, or to act in breach of the s 67 prohibition in the CFL Act, and declarations that such failure or breach ‘has’ occurred are relevant to the exercise of discretion as to whether or not to grant the injunctive relief sought in the ASOC. The plaintiff submitted that unless the court was satisfied of persistent failures or breaches by the Secretary, the Court may be unwilling to grant injunctions.
[8](NSW) (1977) 52 ALJR 180.
Fifth, the ASOC has not significantly broadened the factual dispute between the parties, but simply clarifies the claim the plaintiff always sought to make. However, even if the Secretary’s characterisation of the effect of the ASOC was accepted, that is not a basis for rescinding leave to amend. The Secretary has not articulated why leave should be rescinded, or cited authority in support. The Secretary’s submissions focus on the additional cost and time burden involved in litigating what it characterises as a broader set of claims in the ASOC. It is unclear why obligations arising out of the Civil Procedure Act would in the circumstances justify and order rescinding leave to amend.
Sixth, the plaintiff will seek to establish that in 2011, or some later date, the FMZ scheme began to diverge from the minimum 60% strategy and that divergence has continued to the present. On that factual foundation the plaintiff will contend that the Secretary has failed to ‘put into operation’ the FMP within the meaning of s 22(1)(a) of the Forests Act. The plaintiff submits, because that case is arguable the pleading which supports it should not be struck out.
Seventh, the content of the obligation born by the Secretary under s 22(1)(a) of the Forests Act, and the extent of prohibition in s 67 of the CFL Act, were debateable questions of law yet to be determined. The relief sought by the Secretary on this application should not be granted so as to prevent determination of those questions.[9]
[9]Davis v The Commonwealth (1986) 68 ALR 18 [23] (Gibbs CJ); Spencer v The Commonwealth (2010) HCH 28 [25] (French CJ & Gummow J).
Analysis
The interlocutory order made by me on 7 March giving leave to the plaintiff to file the ASOC may be varied or rescinded in the interest of justice.[10]
[10]Sanofi v Parke Davis Pty Ltd (1982) 149 CLR 147 at 153 per Gibbs CJ, Stephen and Mason JJ; Re Sinanovic’s Application (2001) HCA 40 [7] per Kirby J; Ewert v Audehm [2001] VSC 380 Ashley J at [34].
The plaintiff did not apply for leave to amend its pleading, but was content to rely on the statement of claim and reply, supplemented by particulars. The need for amendment was raised by the Secretary with the following submission:
Well, Your Honour, we apprehend that they want to run another case so we want them to amend the pleadings so that they plead that case so we know what case we have to face at trial.
Leave was granted, effectively by agreement, in order to remove doubt as to the case the Secretary was required to meet. The ASOC has achieved that purpose.
The Secretary now argues, as a basis for rescinding leave, that the amendments to the statement of claim will add significantly to the length and costs of trial, and to the burden of discovery. For two reasons that argument does not assist the Secretary. First, the plaintiff submitted it always intended to run the broader case, and that, taken together, the statement of claim, reply and particulars pleaded the broader case. Whilst the ASOC may have clarified the plaintiff’s case in one document, I do not accept it has broadened the case as the Secretary submits. Second, even assuming the case has been broadened by the ASOC, case management principles do not weigh significantly in favour of rescinding leave to file the ASOC. The need for the ASOC was agitated by the Secretary. It was filed less than five months after the proceeding was commenced. No trial date has yet been set. If the case pleaded by the plaintiff arguably discloses a cause of action and does not otherwise offend pleading rules, leave to file the ASOC should not be rescinded.
The real issue on this application is whether the Secretary has established that the parts of the ASOC it seeks to impugn should be struck out. A cautious approach should be taken to such an application. In Davis v The Commonwealth[11] Gibbs CJ said:
[11](1986) 68 ALR 18 [23] (Gibbs CJ).
By O 20, r 29 the court or a justice is given power, at any stage of the proceedings, to order to be struck out or amended any matter in an endorsement or pleading which is unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the action. Allegations of fact which are truly relevant to an arguable case which the party pleading wishes to put will not answer the description contained in the rule. Further, it is well settled that under a rule of that kind an order striking out a pleading or part of a pleading will only be made in a plain and obvious case: see, for example, Hubbuck & Sons v Wilkinson, Heywood & Clark [1899] 1 QB 86 at 91; Nagle v Feilden [1966] 2 QB 633 at 648, 651 . The court will not ordinarily decide a debatable question of law on an application made under the rule.
In Spencer French CJ and Gummow J said:
Summary processes must not be used to stultify the development of the law.
In my view there are arguable questions of law and fact raised by the ASOC which should not be determined in an application to strike out part of the pleading.
I will focus for the moment on the case brought by the plaintiff alleging breach by the Secretary of a duty owed under s 22(1)(a) of the Forests Act. That is a novel case. The starting point is to construe s 22(1)(a) in order to understand the content of any duty it imposes on the Secretary.
The words ‘putting into operation’ appearing in s 22(1)(a) may suggest a duty to act over a period of time to implement or carry out the working plan. The section provides that working plans are to be put into operation ‘with respect to the control, maintenance, improvement, protection from destruction or damage by fire or otherwise’. Those words may also suggest that what is required is a course of conduct or action over a period of time.
In submissions the Secretary said:
A forest is a living thing that changes all the time.
Changes to forest may occur naturally with growth and age, as a consequence of events such as forest fire, by logging activities, climate variation or by other causes. The task of managing those changes to achieve a numerical outcome such as the 60% minimum strategy may be complex and challenging. It may be that failure to meet the 60% minimum strategy at a point in time, for instance after a bush fire event, does not reflect failure by the Secretary to put the FMP into operation.
It is arguable that the plaintiff will only be able to establish breach of the duty it alleges is owed by the Secretary by proving a continuing course of conduct which amounts to or failure to put the FMP into operation. On that case, evidence of a series of past acts, which are each inconsistent with the FMP, may not be characterised as a series of individual breaches of the duty, but as the one breach of failing to put the FMP into operation. That is the case the plaintiff seeks to make in paragraphs 19A, 22A and 24(a)(i) and (ii) of the ASOC. Because the pleaded allegations are relevant to an arguable case I will not strike them out.
The language of s 67(1) of the CFL Act is less likely to require a course of conduct by the Secretary over time to establish breach. However, for three reasons, I will not strike out paragraphs of the ASOC which allege breach of the CFL Act. First, the nature of obligations arguably imposed on the Secretary by s 67(1) may need to be understood in the context of the Code. I accept the submission of the plaintiff that it is arguable that provisions of the Code which refer to ‘establishing and maintaining a FMZ scheme’ may require reference to a continuing course of conduct rather than a state of affairs at one time. Second, the most significant allegations of ongoing breach in the ASOC relate to the FMP and the alleged failure to maintain the FMZ scheme in a manner consistent with the 60% minimum strategy. The pleading of breach of the CFL Act mirrors the FMP allegations, and would seem to add little to the breadth of the necessary enquiry at trial. Third, the plaintiff seeks a mandatory injunction to require the Secretary to put into operation the 60% minimum strategy and to comply with the 4.6.4.4 requirement in the Code. Proof of continuing or repeated breach of the strategy and failure to comply with the requirement may be relevant to whether discretion will be exercised to grant an injunction.
The form of declarations sought by the plaintiff in the prayer for relief follow from the current form of the pleading. They are sufficient to enable the Secretary to understand the case it is required to meet. I accept the Secretary’s submission that there is a need for precise correlation between the language of a declaration and the impugned conduct. That is a matter to be dealt with if an when the need arises. At this stage there is uncertainty as to duty owed by the Secretary under s 22(1)(a) of the Forests Act, the prohibition in s 67(1) of the CFL Act and the conduct which establishes breach. It is only once these matters have been determined that it will be necessary, if the plaintiff has succeeded, to consider the precise language of a declaration which may be granted.
Conclusion
The Secretary’s application will be dismissed. I will hear from the parties as to consequential and relevant timetabling orders.
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