Hastings v Brennan; Tantram v Courtney (No. 3)
[2005] VSC 228
•28 June 2005
| 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 & 21 FEBRUARY 2005 | |
DATE OF JUDGMENT: | 28 JUNE 2005 | |
CASE MAY BE CITED AS: | HASTINGS v BRENNAN & ANOR; TANTRAM v COURTNEY & ANOR (No. 3) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 228 | |
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JUDICIAL REVIEW - Applications for relief in the nature of certiorari – Obstruction of forestry operations – Whether forestry operations were lawful – Onus on prosecution to establish the lawfulness of the forestry operations – Whether boundaries of coupe were improperly defined – Whether compliance with Code of Forest Practices for Timber Production, Revision No.2 November 1996 - Failure to consider whether rainforest had been logged – Failure to consider whether operator had complied with the terms and conditions of its licence – Conservation, Forests and Lands Act 1987, s.95A – Applications granted.
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APPEARANCES: | Counsel | Solicitors |
| Mr Hastings in person | ||
| For Mr Tantram | Mr T. Poulton | Mahons with Yuncken & Yuncken |
| For the First Defendants | Ms K. Judd | Victorian Government Solicitor |
HIS HONOUR:
I have before me two originating motions. The first was issued on 13 February 2003 (No. 4508 of that year). It named as plaintiffs Anthony Richard Hastings and Gregory Tantram. Subsequently, the view was taken that Mr Tantram should institute a separate proceeding. He did so by originating motion (No. 4630 of 2005) issued on 17 February 2005, the day before the hearing commenced on Friday 18 February 2005. No issue arises from this circumstance. As a consequence, however, Mr Hastings now becomes the sole plaintiff in proceeding 4508 of 2003. The relief sought in each proceeding is the same: an order in the nature of certiorari that “the decisions, findings and orders made on 18 December 2002 by the County Court” be quashed
The plaintiffs are concerned to prevent illegal logging in the forests of East Gippsland, and possibly elsewhere. The first defendants, officers of the Department of Sustainability and Environment, maintain that the logging in question was legal, and that, whatever the plaintiffs' concerns about illegal logging, they pursued those concerns by illegal means.
On 19 April 2001, Mr Hastings was charged that at Sellers Road, Errinundra on that day he "did obstruct the lawful carrying out of forest operations." On 25 June 2001, Mr Tantram was charged that, on the previous 19 April "at the south slope logging coupe, near Bendoc [he] did hinder or obstruct the lawful carrying out of forest operations contrary to the Conservation Forests and Lands Act 1987." He was further charged that, on the same day at the same place, he "did hinder or obstruct another person … in the lawful carrying out of forest operations contrary to the … Act". By letter dated 5 July 2001, Mr Hastings was told that, at the Orbost Magistrates' Court on the following 1 August, application would be made to amend the charge against him to correspond with the first of the charges laid against Mr Tantram. Then, on 18 October 2001, Mr Hastings' former solicitors were advised that he, too, would – when the matter came before the Bairnsdale Magistrates' Court on 23 October 2001 - be charged (as was Mr Tantram) with hindering or obstructing another person in the lawful carrying out of forest operations on 19 April.
The charges which were heard by the Magistrates' Court at Bairnsdale on 17 June 2002 were therefore the same for each accused: first, that he on 19 April 2001 "at the south slope logging coupe, near Bendoc did hinder or obstruct the lawful carrying out of forest operations contrary to the Conservation Forests and Lands Act 1987"; and secondly that, on the same day at the same place, he "did hinder or obstruct another person … in the lawful carrying out of forest operations contrary to the … Act". Each plaintiff was convicted of each of the charges; and each was fined a total of $500. Both were ordered to pay costs in the sum of $2,500.
The plaintiffs appealed to the County Court. The hearing took place over a number of days, but principally on Tuesday 19 November 2002 and the following day. On 18 December that year, the appeals were dismissed. The judge nevertheless set aside the orders of the magistrate. Mr Tantram was found guilty of one breach of s.95A(1)(a) of the Conservation Forests and Lands Act and one breach of s.95A(1)(b) of that Act. Although the records of the County Court in relation to Mr Hastings are not as clear as desirable, it seems that he was found guilty of the same two offences; certainly, two offences were found to be proved. In the case of each accused, each charge was then adjourned without conviction for a period of 12 months on undertakings to be of good behaviour. The plaintiffs were ordered to pay costs.
It is on the plaintiffs’ several (and separate) applications for relief in the nature of certiorari from those orders of the judge that the matter comes before me. The starting point is the relevant section of the Act. Section 95A(1) provides that a person must not hinder or obstruct (a) another person in the lawful carrying out of forest operations, or (b) the lawful carrying out of such operations. In each case, the prescribed penalty for disobedience is 20 penalty units, as that expression is defined in s.110 of the Sentencing Act 1991.[1] The expression “forest operations” is defined in s.95A(2) as meaning either the taking of forest products from Crown land, or activities on such land associated with such taking (or, it may well be, both – but that is not an issue here).
[1]See also now the Monetary Units Act 2004.
It will be seen that each of the offences thus created has three common elements. First, that the accused engaged in conduct, whether actively or passively, which hindered or obstructed other activity. Secondly, that that other activity could properly described as “forest operations”. And thirdly, that those forest operations were lawful. A fourth element belongs exclusively to the offence created by s.95A(1)(a). It is that the obstruction be of another person.
As I understand the position, it was the third element that, in the case of each plaintiff, formed the basis of his defence. Their argument, in brief, was that the section only proscribes hindering or obstructing if the operations hindered or obstructed are lawful. If the operations are unlawful, the section does not apply. It follows that, if a question arises about the lawfulness of the operations that allegedly have been hindered, the prosecution cannot succeed unless the court is satisfied that that allegation has been made good. In the words of Kellam J when considering a number of cases involving s.95A(1) in The Director of Public Prosecutions v Brown; The Director of Public Prosecutions v Knight; The Director of Public Prosecutions v Hess:
“It is an element of the offence with which the respondents were charged that the forest operations in question were lawful. It was necessary for the prosecution to establish that element.” [2]
[2][1998] VSC 117 at [5]. See also Flynn v DPP [1998] 1 VR 322 at 326 per McDonald J.
As I understand it, the plaintiffs’ case in the County Court (and, for that matter, in the Magistrates’ Court) was that the forest operations at the south slope logging coupe, near Bendoc, were unlawful on two bases. First, the boundaries of the coupe were so drawn as either to include rainforest (and logging of rainforest is prohibited) or to inadequately separate the coupe from the rainforest (and adequate separation is required by law as a necessary condition of the survival of such vegetation). Secondly, the logging operation itself either included the destruction of rainforest or, even when it did not, involved the harvesting of other protected timber;[3] for example, individual trees which, because they contained the nests of the Powerful Owl, could not be lawfully logged, had nevertheless been cut down.
[3]Appellants’ [plaintiffs’] written submission dated 21 November 2002.
A principal question before the County Court was whether the prosecution had or had not discharged the burden of proof imposed upon it. As the judge put it, the appeal from the Magistrate “specifically” raised the “issue … [of] lawfulness.” His Honour then turned to the onus of proof.
It is here that the first attack is made on the judge’s reasons for his decision. If the transcript accurately records what his Honour said in his judgment, he initially accepted and then rejected - but without any explanation for the apparent reversal - the proposition that the relevant burden rested on those by whom the charges were brought. On the first page of the transcript of what was, I take it, a judgment delivered orally and not revised, his Honour noted that “The onus is on the prosecution to establish beyond reasonable doubt that the operations, namely logging, were lawful.” Before me, counsel for the first defendants, at paragraph 27 of her written submissions, acknowledged the correctness of this statement. His Honour is nevertheless later transcribed as saying the direct opposite; namely, that “the issue for the Court is whether I have been satisfied beyond reasonable doubt that the Department acted unlawfully.”[4]
[4]Transcription of his Honour’s judgment, 14 November 2002, at p.3.
On one view, this may be no more than an error in the transcription. The words last quoted are preceded by the phrase “As I have said … ”. But his Honour had not earlier said that he must be satisfied that the Department had acted unlawfully. On the contrary, he had said that the onus was on the prosecution to establish beyond reasonable doubt that the logging was lawful.
As against this, there is reason to think that the second statement was recorded accurately. The sentence which reads: “As I have said, the issue for the Court is whether I have been satisfied beyond reasonable doubt that the Department acted unlawfully” is immediately followed by a sentence that reads: “That unlawfulness is not constituted by mere technical variations or human error”. The judge here employs the word “unlawfulness” in a context which indicates that when his Honour a moment earlier spoke of the necessity for him to be satisfied that the Department acted unlawfully, he meant what he said.
It is highly regrettable that the judgment of a court should contain the inconsistencies to be found in this judgment. It is nevertheless true that, as the last sentence of the judgment reveals, his Honour was “satisfied that the coupe was not unlawful”. He was therefore necessarily of the opinion that the prosecution, upon whom the burden of proof lay, had positively proved that part of its case. Consistently with his observation (as expressed on the first page of the transcript of the judgment) about the standard of proof, I must I think assume that his Honour was satisfied beyond reasonable doubt of the facts which supported that conclusion.
The word “coupe” is defined in the Shorter Oxford Dictionary as “[a] periodic felling of trees; an area so cleared.” More importantly for present purposes, it is defined in Appendix 1 to the Code of Forest Practices for Timber Production, Revision No.2 November 1996, of which more later, as “an area of forest of variable size, shape and orientation from which logs for sawmilling or other industrial processing are harvested.” The “lawfulness” of the coupe the subject of the present applications was of course relevant because the plaintiffs were charged with hindering or obstructing the lawful carrying out of forest operations at “the south slope logging coupe, near Bendoc”.
I have already referred to the fact that one of their arguments was that the boundaries of that coupe were improperly defined. The result was that the relevant licence, which on its face was no doubt unexceptional, became an illegal licence to log a coupe that included, or was insufficiently separated from, rainforest. Had the boundaries been properly drawn, the rainforest would have been not only outside them, but beyond them at such a distance as to ensure its protection. By contrast (the argument runs) as the boundaries of the coupe were in fact delineated, they were in conflict with the proscription in the Code which is to be found under the heading “2.3.7 Protection of Rainforest”.
Much of the argument before the County Court, and on the hearing of these applications, concerned those boundaries. But there is a more important reason why the contents of section 2.3.7 of the Code are fundamental to the outcome of this litigation. It is a reason which was somewhat obscured, both here and in the courts below, by the concentration on the significance of the boundaries of the coupe. I shall return to it during the course of my judgment. I mention it now because of its importance. It is that, subject only to the Code applying with binding force to the persons and entities concerned with this litigation, the provisions of the Code operate to forbid the harvesting of rainforest. Subject to any such limits (to which I shall also return) rainforest cannot be logged. This follows from the words of the Code itself, in the passage to which I referred above. It is a passage of central importance in this litigation. It is, as noted above, to be found (in of Chapter 2 of the Code) under the heading “2.3.7 Protection of Rainforest”. It is clear and emphatic. I have placed it in italics so as to emphasise its significance. It reads: “Rainforest must be excluded from timber harvesting and, because rainforest communities may be particularly vulnerable to adjacent disturbance, they should be surrounded by an appropriate buffer.” [5]
[5]Code, p 23.
A licence such as that to log “the south slope logging coupe, near Bendoc” is subject to 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."
In this context, the relevant provision of the Conservation Forests and Lands Act was, at the time of the hearings below, s.55. That section provided 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. It was, however, repealed by s.128 of the Sustainable Forests (Timber) Act 2004, which came into effect on 1 August last year. At the same time, the later Act substituted a new s.39 of the Conservation Forests and Lands Act. The new provision makes no reference to ratification by Parliament. By s. 39 as now in force, compliance with a Code of Practice is not required unless that Code is incorporated in or adopted by (a) a relevant law, or (b) a condition specified in an authority given under a relevant law. A “relevant law” includes the Forests (Licences and Permits) Regulations. Those regulations were in force when the arrests occurred on 19 April 2001. Regulation 10 of those regulations itself evidenced the then requisite adoption and approval of the Code of Forest Practices for Timber Production to which it refers. It follows that the person or entity who or which then held the licence to cut and take away forest produce from the south slope logging coupe, near Bendoc, was in April 2001 bound to comply with the Code. The question arises whether officers of the then Department of Natural Resources and Environment were similarly bound.
The judge appeared to take the view that only “a conscious disregard” by Departmental officers for the Code and other applicable instruments would cause any breach of the Code by them to result in unlawfulness. If this is so, then careless stupidity, resulting in (for example) large areas of rainforest being included in a coupe and subsequently being logged by the holder of a licence to cut and take away the forest produce of that coupe, would not render that forest operation unlawful. But in my opinion it is not so. The careless preparation of a Forest Coupe Plan which incorporated rainforest within the boundaries of the coupe would in my opinion be action contrary to that provision of the Code which provides that rainforest must be excluded from timber harvesting. It could not be said that, because no wilful disobedience was involved, the logging of rainforest within the coupe was lawful.
The provisions of the Conservation Forests and Lands Act bear this out. Section 67 of the Act provides, among other things, that the Administrative Office Head of an Administrative Office (that is, a body or group existing as an Administrative Office in relation to a Department by virtue of an Order made under s.11 of the Public Administration Act 2004) “must ensure that, in the carrying out of the Office’s functions, action is not taken which is contrary to a Code of Practice” such as the Code of Forest Practices for Timber Production unless the Head “is satisfied that there is no feasible and prudent alternative … and all measures that could reasonably be taken to minimise the adverse effects of the action are taken.” This is a much higher threshold than “conscious disregard”.
The Code itself provides that it “will be applied to all public land … in the State of Victoria which is either being used or is to be used for commercial timber production.”[6] Compliance with the requirements of the Code will be monitored by authorised officers appointed under the Conservation, Forests and Lands Act[7]. In addition, the State-wide “Goals” and “Guidelines” laid down by the Code are to be followed and applied to each timber production operation.[8] This is to be effected by the relevant Office within the Department of Natural Resources and Environment, (now the Department of Sustainability and Environment) one of the functions of which is (and was) the preparation of detailed prescriptions, Forest Management Plans and Forest Coupe Plans.[9] Each of these is required to be drawn to increasing levels of specificity. They are (and were) also required to be consistent with the Code, and to exceed the minimum requirements outlined in the Code where necessary to protect environmental values.[10]
[6]Ibid, p.4.
[7]Ibid.
[8]Ibid, p.5
[9]Code, p.5.
[10]Ibid, p.13.
Chapter 2.3 of the Code is headed "Timber Harvesting". Section 2.3.1 deals with "Coupe Planning". Under that heading a “Goal” is that commercial timber harvesting operations will be based on a forest coupe plan prepared and approved in advance of the commencement of operations. The Code continues:
"This plan will be prepared with reference to higher level regional plans that address coupe siting, water quality protection, roading, flora and fauna conservation, and any other relevant plans and prescriptions. The Forest Coupe Plan will consist of a map identifying the area to be harvested and conditions applying to operations on the coupe."
Two further provisions of the Code are worthy of note here. In s.2.3.5 it is stated as a "Goal" that "timber harvesting on slopes must occur where the operation can be conducted safely and will not threaten the long term stability of the soil or cause short-term and unacceptable off-site effects." Secondly, under s.2.3.7 and the heading "Protection of Rain Forest", there appears - after the statement, to which I have referred above, that "rain forest must be excluded from timber harvesting …” - the further heading "Guidelines". The Code then continues:[11]
§"areas of rainforest must be defined, and a strategy for their management must be included as part of planning for conservation of flora and fauna in Forest Management Plans … The most important rain forest areas should be accorded highest protection;
§in the absence of detailed strategies within an approved Forest Management Plan … (iii) for stands containing nationally significant rain forest … the highest degree of protection [is prescribed]."
[11]At p.23.
Guidelines are also specified. According to them, the plans should include, and specify where necessary, such things as areas to be excluded from harvesting or to which special prescriptions apply, for example, for flora and fauna protection. Furthermore, Wood Utilisation Plans are to be prepared which must be designed to take account of forest types and to ensure that coupe boundaries take advantage of landscape and environmental values.
The cumulative effect of the above, it seems to me, is that the Code is a document to which licence holders and Departmental officers must have careful regard. True, it is not a statute. It should not be interpreted as if it were. It speaks constantly of “Goals” and “Guidelines” even as it uses prescriptive language when specifying how these are to be achieved or observed. It could not be given sensible effect without the exercise of judgment, and of appropriate discretions. These do not repose in self-appointed guardians of the environment. They remain within the jurisdiction of Departmental officers, and, to a limited degree, licence holders. Given all these qualifications, the fact remains that the law, in the form of the Code of Forest Practices for Timber Production, forbids the commercial exploitation of rainforests. And in my opinion, logging of such forests would not necessarily be lawful even if they were encompassed within the boundaries of a coupe for which a licence had been issued pursuant to the Forests (Licences and Permits) Regulations 1999. Indeed, only if the relevant Administrative Office Head were satisfied pursuant to s.67(2) of the Act (a) that there was no feasible and prudent alternative to boundaries which included rainforest and (b) that all measures that could reasonably be taken to minimise the consequential adverse effects had been taken, that such inclusion would be lawful. Departmental carelessness which resulted in the inclusion of rainforest within the boundaries of a coupe is not covered by s.67. Of course, a licence holder who innocently (that is, not knowing the character of the forest being logged) cut and took away rainforest within the coupe boundaries, might not be in breach of the licence (though I am far from deciding the point one way or another). It would not follow that such activity was, for the purposes of s.94A of the Act, lawful.
Although the Code was in evidence before his Honour in the County Court, nothing in his judgment indicates that he turned his mind to the question whether the holder of the licence “to cut and take away the forest produce of the south slope logging coupe, near Bendoc” had complied with the Code’s requirements. Rather, his Honour concentrated to the exclusion of all else on whether he was or was not “satisfied that the coupe was not unlawful”. Having been satisfied that it was not, the judge then concluded his judgment, as if there was nothing more to be said, with the words “and, thus, the appeal is dismissed.”
The result is that the judgment below does not address the real issues in the case. In particular, the judge did not in his judgment consider the plaintiffs’ argument that rainforest is protected by the Code, that logging of rainforest is illegal, and that such logging was being carried out in the coupe in question or in its immediate environs. Yet there was evidence before his Honour that the licence holder was in default. The plaintiffs called evidence which, if believed, established that rainforest either within, or in the vicinity of, the coupe had been felled.[12] If that evidence were accepted, then unlawful forest operations had most probably been carried out. Of course, the evidence may have been rejected. Either way, his Honour was bound to explain the reasons for his choice.
[12]See, for example, transcript of the proceedings in the County Court, at pp. 178 (Tantram) and 198-199 (Hastings)
This was not done. His Honour did not, in his judgment, consider the evidence to which I have referred. He did not even consider whether any of the forest operations of the licence holder within or in the vicinity of the coup were or might have been unlawful, let alone whether, if they were, it was those activities that the plaintiffs hindered. He referred only to a different, and more obscure issue: whether those who drew the boundaries of the coupe acted in “conscious disregard for the criteria, protocols, definitions and prescriptions and assumptions that forest officers are obliged to use in their decision-making processes as derived from … [the] Forest Management Plan … [the] Code … [and the] Gippsland Forest Management Prescription”.
It does not necessarily follow, however, that the activities hindered by the plaintiffs were themselves unlawful. The plaintiffs had no right, merely because unlawful operations had been carried out in that coupe in the past, to obstruct operations presently being, or about to be, undertaken. Those latter operations might have been entirely within the law. But the fact that previous activities of a licence holder had been performed in defiance of, or merely contrary to, the Code, would in many circumstances be relevant to the question whether activities said to have been hindered were or were not lawful.
His Honour’s failure to consider, in his judgment, the plaintiffs’ case that the licence holder had failed to comply with the terms and conditions of the relevant licence is in my opinion itself a sufficient basis upon which to grant relief in the nature of certiorari. I note in this context that the judgment refers to the Code as being in evidence in the County Court proceedings, and that in the light of Regulation 10 of the Forests (Licences and Permits) Regulations 1999, his Honour was bound to consider whether the forest operations in question had been conducted in accordance with it. In my opinion, the judgment is also deficient in its examination of the evidence that the boundaries of the coupe in question did not allow for an appropriate buffer, or perhaps any buffer at all, between the coupe and adjacent rainforest. There was such evidence. [13] Of course, the judge might not have accepted it. But it was a central part of the plaintiffs’ case. As such, his Honour was in my opinion obliged to reveal in his judgment how he dealt with it.
[13]Mr Hastings gave evidence, at p. 199 of the transcript, that rainforest extended “inside the boundary of the coupe”.
His Honour was concerned to ensure that the operation of the Code was not interpreted by the courts so as to place Departmental officers in a straightjacket. I share that concern. I have already referred to s.67 of the Conservation, Forests and Lands Act which itself provides that in certain circumstances action may be taken even though that action is contrary to a Code of Practice. It is also relevant in this context that the Code itself speaks in terms of "Goals" and "Guidelines". The preparation of such things as Forest Management Plans and Forest Coupe Plans must involve a degree of discretion and judgment. The delineation of the boundary between a stand of rainforest and another type or other types of vegetation must also, from time to time if not always, be a matter about which reasonable minds might reasonably differ. That discretion and judgment is to be exercised by properly designated officials, not by self-appointed protectors of the environment. In this context I note that it has not been necessary, in this judgment, to consider whether an honest and reasonable belief that a forest operation is unlawful will amount to a defence to a charge brought pursuant to s.95A of the Act. This judgment is not a precedent either way.
It is, however, in my opinion clear on the face of the record that his Honour did not in his reasons for dismissing the appeal from the magistrate consider the gravamen of the case put by the plaintiffs. One of the grounds for the grant of relief being that the judge failed to provide adequate reason for his decision, that ground must in my opinion be upheld.
There is a further basis upon which the applications should be allowed. The plaintiffs complain that they were denied natural justice because the judge predetermined their guilt. At p.170 of the transcript, before any evidence had been called on behalf of the plaintiffs, his Honour said to counsel for the plaintiffs:
"I am just letting you know and it would be wrong for me not to let you know, that I am satisfied at this point of time that the Department has acted lawfully. I have made it clear. It is not a question of whether there is some rainforest there or there is not. It is a question of whether they have acted lawfully."
I of course appreciate that his Honour included in the above passage the words "at this point of time". It seems to me, however, from a reading of the subsequent transcript, that his Honour displayed an unwillingness to move from that position. I think that an interested but unbiased observer would have concluded that his Honour had a fixed view from the commencement of the plaintiffs' case and thereafter that the "presence" of "some rainforest" was not something of relevance. In my opinion, for the reasons I have endeavoured to set out, this is an issue crucial to the plaintiffs' case.
The applications must be allowed. The decisions of the County Court in respect of each plaintiff will be quashed. I will hear counsel on the necessary consequential orders.
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