Hastings v Brennan; Tantram v Courtney (No 2)

[2005] VSC 37

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:	21 FEBRUARY 2005
DATE OF RULING:	21 FEBRUARY 2005
CASE MAY BE CITED AS:	HASTINGS v BRENNAN & ANOR; TANTRAM V COURTNEY & ANOR (Ruling No.2)
MEDIUM NEUTRAL CITATION:	[2005] VSC 37	1st Revision 7/3/05

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RULING – Whether breach of the Code of Forest Practices for Timber Production Revision No.2, November 1996 is a breach of the law – Whether the Code of Practice merely provides guidelines or forms part of the law.

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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 does seem to me at the moment that, to an extent at least, that which governs the lawfulness of forest operations includes: the terms of the licence issued to the individual logger; the Code of Practice; and those plans which are formulated pursuant to or at least in purported compliance with the Code. Of course there will be areas where the discretion of individual officers of the relevant department will require to be exercised; and provided the discretion is exercised with a bona fide view to compliance with the relevant provisions of the relevant plans and the Code it will not be open to individuals to query the exercise of the discretion. But if the relevant officers fail to have proper regard to management plans and the Code when preparing individual licences or the boundaries of coupes it is at least (it seems to me) arguable that forest operations carried out in purported reliance upon permission thus granted will not be lawful, certainly not necessarily lawful. If that is the case then it is arguable that persons who hinder those operations are hindering forest operations which are unlawful and therefore do not fall within s.95A of the Conservation,  Forests and Lands Act.

1. If that is so a person charged with an offence under that section ought not be convicted.

1. Getting down to the circumstances of this particular case, his Honour in his reasons for judgment referred to the prosecutor's response to the submissions put forward on behalf of the present plaintiffs.  He designated one paragraph of that response as “J” when I think he meant “L”, (in fact it is certain he did mean “L”) and under the wrongly designated paragraph “J” he has recorded this as part of the submissions put forward on behalf of the prosecutor:  "It is not accepted that a 'breach' of the Code, assuming the Code can 'breached', is the equivalent of the breach of statute and it is not accepted that the appellants have established that there has been a breach of the Code in this instance."  His Honour then went on to say that he did not accept the proposition put by counsel for the present plaintiffs in paragraph “L” of that counsel's submissions.  That paragraph read as follows:  "Any breach of the Code is the equivalent of a breach of statute." 

1. It seems to me, as at present I understand the position, that his Honour was wrong to reject that proposition, at least to the extent that his Honour rejected the proposition that a breach of the Code would not amount to a breach of the law.  Subject to anything which Ms Judd may say, it seems to me that a breach of the Code is prima facie a breach of the law.

1. If there were evidence of a breach of the Code it would be for the prosecution to establish that in the particular circumstances of the case there had not been a breach of the law.

1. If the prosecution failed to demonstrate that the behaviour in question did not amount to a breach of the law, then it would follow that the prosecution had failed to establish that the forest operations in question were lawful.  A failure of that kind would be a failure to prove an essential element of the charge; and in those circumstances the charge should be dismissed.

1. His Honour also said that it, that is the Code:  "Provides guidelines upon which departmental officers should rely in establishing coupes."  Again this matter has been raised in argument with counsel and with the plaintiffs, but unless Ms Judd can persuade me to the contrary, it seems to me that his Honour was incorrect in describing the Code as something which merely provides guidelines.  In fact I think in conformity with what I said on Friday I would have to hold that the Code does much more than provide guidelines. It is part of the law.

1. I do not suggest that it is part of the law in a same way as a statute is a part of the law.  It is not drawn as a statute and is not, I would suggest, to be construed as if it were a statute.  It has a special place in the law.  It is nevertheless, as I say, part of the law.  There will be occasions when it is possible to identify a clear breach of the Code. Where it is so possible, a breach of the Code would amount to a breach of the law.

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CERTIFICATE

I certify that this and the 2 preceding pages are a true copy of the reasons for ruling of Harper J of the Supreme Court of Victoria delivered on 21 February 2005.

DATED this 25^th day of February 2005.

Samantha J Loo
Associate