Hastings v Brennan; Tantram v Courtney (No 1)

[2005] VSC 36

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No.  4508 of 2003

ANTHONY RICHARD HASTINGS	Plaintiff
v
NIGEL BRENNAN and COUNTY COURT OF VICTORIA	Defendants

No.  4630 of 2005

GREGORY TANTRAM	Plaintiff
v
PETER COURTNEY and COUNTY COURT OF VICTORIA	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 FEBRUARY 2005
DATE OF RULING:	18 FEBRUARY 2005
CASE MAY BE CITED AS:	HASTINGS v BRENNAN & ANOR;  TANTRAM v COURTNEY & ANOR (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2005] VSC 36	1st Revision 7/3/05

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RULING – Effect of reg. 10 of the Forests (Licences and Permits) Regulations 1999 – Whether breach of the Code of Forest Practices for Timber Production Revision No.2, November 1996 might render a forest operation unlawful – Compliance with the Code of Practice a term of licence – Whether a person hindering or obstructing an unlawful operation could be guilty of an offence under s.95A of the Conservation, Forests and Land Act 1987.

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APPEARANCES:	Counsel	Solicitors
Mr Hastings in person
For Mr Tantram	Mr T. Poulton	Mahons with Yuncken & Yuncken
For the First Defendant	Ms K. Judd	Victorian Government Solicitor

HIS HONOUR:

1. It might help the parties if I tell them now what I think is the effect of Regulation 10 of the Forests (Licences and Permits) Regulations 1999. Regulation 10 provides that:

"It is a term and condition of a licence to cut and take away forest produce, that the licence holder must comply with the requirements of the Code of Practice approved under the Conservation, Forests and Lands Act 1987 and called the ‘Code of Forest Practices for Timber Production, Revision No.2, November 1996’”.

1. I am informed from the Bar table but without, as far as I am aware, any suggestion to the contrary, that the Code of Forest Practices for Timber Production Revision No.2, November 1996, is a Code of Practice which has come into operation and has been ratified in accordance with s.55 of the Conservation, Forests and Lands Act 1987. That section provides that compliance with a Code of Practice is not required unless the Code is incorporated in or adopted by certain specified laws, regulations or conditions and unless the instrument approving the Code has been ratified by a resolution passed by the Legislative Assembly and the Legislative Council.

1. I proceed upon the basis, put to me from the Bar table, that the Code of Forest Practices for Timber Production Revision No.2, November 1996 is incorporated in or adopted by one or other of the laws, regulations or conditions specified in s.55, and that it has been ratified in accordance with that section.

1. Given that basic premise, the Code of Forest Practices for Timber Production Revision No.2, November 1996 was a term and condition of any licence to cut and take away forest produce.  If that is the case then the operator whose operations were said to have been obstructed by Messrs Tantram and Hastings operated pursuant to a licence which had compliance with those requirements as a term and condition of it.  It follows, in my opinion, that any failure of compliance by that operator, was a breach of the relevant Code; and, to the extent of the failure of compliance, the forest operations were rendered unlawful.

1. It follows that anybody who hindered or obstructed the operations to the extent that they were unlawful could not be guilty of an offence under s.95A of the Conservation, Forests and Lands Act.

1. We can on that basis proceed to enquire as to whether there had been produced before his Honour Judge Gebhardt, evidence upon the basis of which his Honour could conclude beyond reasonable doubt that the relevant requirements of the relevant Code had been complied with.

1. It might also be necessary to examine his Honour's reasons for judgment with a view to ascertaining whether or not the judge was in error in his assessment of the law and the facts relating to proof or otherwise of compliance with the requirements to which I have referred.

1. I should perhaps add, in deference to the submissions put to me by Ms Judd, that in my opinion the issue of a licence is to be distinguished from the entry into of a private agreement. A licence to cut and take away forest produce is issued not by private agreement but by a governmental authority. It may be that failure to comply with the term and condition of the licence that requires compliance with the relevant Code, would not render the licence invalid. There is however, it seems to me, a distinction to be made between a failure of compliance which renders a licence invalid and a failure which renders the relevant forest operation unlawful. It may be, and in logic I see no reason why this should not in particular circumstances be the case, that a failure to comply with the requirements of the Code would not render the licence invalid or susceptible to cancellation, but nevertheless would constitute an unlawful act for the purposes of s.95A of the Conservation, Forest and Lands Act 1987.

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