Kinglake Friends of the Forest Inc. v VicForests (No 3)
[2020] VSC 777
•23 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2020 02658
| KINGLAKE FRIENDS OF THE FOREST INC. (ABN 35 186 838 481) | Plaintiff |
| v | |
| VICFORESTS | Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 November 2020 |
DATE OF RULING: | 23 November 2020 |
CASE MAY BE CITED AS: | Kinglake Friends of the Forest Inc. v VicForests (No 3) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 777 |
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PRACTICE AND PROCEDURE – Application to further amend statement of claim – Application to strike out parts of amended statement of claim – Relevant principles – Whether proposed amended claims had real prospect of success – Whether proposed amended declarations would in substance be declarations that defendant has committed criminal offences – Whether grounds to strike out allegations of past contraventions – Case management measures available to defendant – Leave to file further amended statement of claim, except for proposed amended declarations – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 23.02.
PRACTICE AND PROCEDURE – Whether defendant’s challenge to plaintiff’s standing should be determined before trial.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Korman | Oakwood Legal |
| For the Defendant | Mr E Nekvapil with Ms M Narayan | Johnson Winter & Slattery |
HER HONOUR:
In this proceeding, Kinglake Friends of the Forest Inc. (Kinglake FF) seeks declarations and permanent injunctions in respect of timber harvesting by VicForests that it alleges is in contravention of the Sustainable Forests (Timber) Act 2004 (Vic), the Code of Practice for Timber Production 2014, and the Management Standards and Procedures for timber harvesting operations in Victoria’s State Forests 2014. In June and July this year, Kinglake FF obtained interlocutory injunctions in relation to two aspects of VicForests’ timber harvesting operations in the Central Highlands Region in Victoria.[1] Specifically, VicForests is restrained from felling trees within 20 metres of any road or track in or adjacent to any coupe in the Central Highlands Region, and from conducting timber harvesting operations in any coupe within a nett harvestable area in excess of that specified for the coupe in VicForests’ current timber release plan.[2]
[1]In this proceeding, the ‘Central Highlands Region’ has been defined by reference to the area described in the map that is exhibit JM-5 to the affidavit of John McMullan dated 3 July 2020.
[2]Kinglake Friends of the Forest Inc. v VicForests [2020] VSC 394 (Kinglake No 1); Kinglake Friends of the Forest Inc. v VicForests(No 2) [2020] VSC 418.
Kinglake FF filed an amended statement of claim (ASOC) on 24 July 2020. By summons filed 6 October 2020, it seeks leave to file and serve a further amended statement of claim (FASOC). VicForests opposes leave being granted, on the basis that Kinglake FF has no real prospect of obtaining the relief claimed in the proposed FASOC. It does not contend that leave should be refused for case management reasons.[3]
[3]Cf Northern Health v Kuipers [2015] VSCA 172, [28] citing AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Billington v Sussan Corporation Australia Pty Ltd [2020] VSCA 12, [40].
By summons filed 27 October 2020, VicForests seeks orders that the claim for declarations in the ASOC be summarily dismissed, and that paragraphs 45 to 57 and 51 to 69 of the ASOC be struck out. VicForests also challenges the standing of Kinglake FF to bring the proceeding, and seeks to have that question determined before trial.
Both summonses were listed for hearing before me on 13 November 2020. At the start of that hearing, I indicated that I intended to hear and determine the questions concerning the plaintiff’s pleading before dealing with the challenge to its standing. That was the approach taken recently by Garde J in Warburton Environment Inc v VicForests (No 2),[4] in relation to a very similar set of issues.
[4][2020] VSC 738, [82] (Warburton No 2).
For the reasons that follow, Kinglake FF has leave to file and serve the FASOC, excluding the proposed declarations in the prayer for relief. VicForests’ challenge to Kinglake FF’s standing will be listed for hearing and determination in the near future.
The legislative scheme
Relevant provisions of the legislative scheme established by the Act, the Code, and the Standards are summarised in my reasons for granting the interim injunctions on 24 June 2020.[5] For the purposes of this ruling, the following provisions of the Act are significant:
[5]Kinglake No 1, [8]–[15], [22]–[27].
(a) Section 13 empowers the Minister to publish an allocation order in the Government Gazette, allocating timber in State forests to VicForests for the purposes of harvesting and selling timber resources.
(b) Section 14(1) provides that, on publication of an allocation order, property in the timber allocated is vested in VicForests.
(c) Section 14(2) provides that VicForests may only harvest and sell vested timber resources in accordance with the allocation order.
(d) Section 37 requires VicForests to prepare a timber release plan in respect of an area to which an allocation order applies for the purposes of harvesting timber resources in that area.
(e) Under s 41(1), VicForests must cause a timber release plan to be published in the Government Gazette.
(f) Section 44 obliges VicForests to ‘carry out its functions and powers under this Act in relation to vested timber resources, or in relation to an area to which an allocation order applies, in accordance with any timber release plan’.
(g) Under s 45(1), it is an offence for a person to undertake timber harvesting operations in a State forest unless those operations are ‘authorised operations’. In the case of vested timber resources, timber harvesting operations are authorised operations if they are undertaken by VicForests in accordance with an allocation order and a timber release plan that relates to that allocation order.[6]
(h) Section 46(a) requires VicForests to comply with any relevant Code of Practice relating to timber harvesting. It is uncontroversial that the Code of Practice for Timber Production 2014 is a Code of Practice for the purposes of s 46 of the Act.
[6]Sustainable Forests (Timber) Act 2004 (Vic), s 45(2)(a)(i).
The current allocation order also requires VicForests to comply with all relevant Codes of Practice. These include the Code, which incorporates the Standards.
The pleading and the proposed pleading
The ASOC commences by pleading various uncontroversial matters concerning the parties, the legislative scheme, and the implementation of the legislative scheme, including relevant provisions of the Code and the Standards. The proposed FASOC follows the same form.
Alleged failure to screen
Under the heading ‘Failure to Screen Timber Harvesting Operations From View’, the following is pleaded in the ASOC.
Timber Harvesting Operations must be screened from view
42. By cl 5.3.1.5 of the Standards, VicForests is required:
(a) to screen Timber Harvesting Operations (except selective harvesting operations) and new road alignments from view; and
(b) to use a minimum 20 metre vegetation buffer in order to bring about the screening referred to in the preceding sub paragraph.
43. A “buffer” for purposes of cl 5.3.1.5 of the Standards is, pursuant to the Glossary of the Standards and the Glossary of the Code, a protective margin of vegetation excluded from any harvesting activity.
43A. The “view” referred to in paragraph 42(a) above, and in clause 5.3.1.5 of the Standards, is the view from any road or track on unreserved Crown land passing through or
(a) within 500 metres of; or
(b) alternatively, adjacent to
a coupe in which Timber Harvesting Operations are taking or intended to take place, to which the public has a general right of access (whether seasonal or all year round) for recreational and like purposes (Roads and Tracks).
43B. The “minimum 20 metre vegetation buffer” referred to in paragraph 42(b) above, and in clause 5.3.1.5 of the Standards, is a protective margin of vegetation, at least 20 metres wide, which is excluded from any harvesting activity and which screens Timber Harvesting Operations from view.
Past breaches of cl 5.3.1.5
45. In some or alternatively all of the coupes in the Central Highlands:
(a) in which VicForests has undertaken Timber Harvesting Operations, excluding selective harvesting operations, since 28 October 2014; and
(b) in or adjacent to which there are Roads and Tracks
Vic Forests has carried out Timber Harvesting Operations which were not screened from view from Roads and Tracks passing through or adjacent to those coupes by means of a minimum 20 metre vegetation buffer excluded from any harvesting activity.
PARTICULARS
The coupes and affected Roads and Tracks include but are not limited to:
[particulars are given in respect of 28 coupes]
Particulars of further coupes in which VicForests failed to retain adequate screening buffers, and further particulars of the above failures to retain adequate screening buffers, may be provided after discovery by VicForests of, among other things, the Operations Maps, Operations Plans, Coupe Diaries and Post-harvest Plans for coupes harvested in the Central Highlands.
46. Consequently, and separately in relation to each coupe which the plaintiff will particularise in respect of paragraph 45, VicForests has breached of cl 5.3.1.5 of the Standards, and therefore breached the Code, by failing to screen its timber harvesting operations and/or new road alignments from view.
PARTICULARS
Breach of cl 5.3.1.5 of the Standards is a breach of the Code because:
(a)the Standards are incorporated into the Code, as pleaded in paragraph 17(b) and 18 above, so that any breach of the Standards is of necessity a breach of the Code; and
(b) Clause 5.3.1.5 of the Standards is a management measure relevant to the management of Timber Harvesting Operations, Cl 2.5.1.1 of the Code is a Mandatory Action that requires management of Timber Harvesting Operations to comply with the relevant management measures in the standards, as pleaded in paragraph 21 above, and Clause 1.2.8 of the Code provides that failure to undertake a relevant Mandatory Action results in non-compliance with the Code, as pleaded in paragraphs 20 above.
VicForests has committed offences
47. By section 45(2) of the Act, where timber harvesting operations as defined in section 3 of the Act (Act Harvesting Operations) involving timber from trees or parts of trees specified as available for timber harvesting in an allocation order are undertaken by or on behalf of VicForests, those Act Harvesting Operations are “authorised operations” only when undertaken in accordance with, among other things, the relevant allocation order.
48. The relevant allocation order required VicForests to comply with all relevant Codes of Practice, as pleaded in paragraph 14 above.
49. The Act Harvesting Operations undertaken in the coupes referred to in paragraph 45 above, including any coupes yet to be particularised (collectively, Unscreened Coupes) were not undertaken in accordance with the relevant allocation order, because VicForests failed to comply with the Code in undertaking Act Harvesting Operations in the Unscreened Coupes.
50. Consequently, the Act Harvesting Operations undertaken by VicForests in the Unscreened Coupes were not authorised operations.
51. Section 45(1) of the Act makes it an offence for a person to undertake Act Harvesting Operations in any part of a State forest unless those operations are authorised operations.
52. Consequently, in conducting Act Harvesting Operations in the Unscreened Coupes, VicForests has committed:
(a) offences under section 45(1) of the Act; and
(b) more particularly, a separate offence under section 45(1) of the Act in relation to Act Harvesting Operations undertaken in each Unscreened Coupe.
Probable future breaches of cl 5.3.1.5
56. Further:
(a) On 27 May 2020, the Honourable Justice Mortimer sitting in the Federal Court of Australia, handed down her reasons for judgment in Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704, in which her Honour found:
(i) at [1270], that cl 5.3.1.5 of the Standards required VicForests to screen all timber harvesting operations (and new road alignments) from view, and the minimum screening in 20 m; and
(ii) at [1288], that VicForests had failed to comply with cl 5.3.1.5 in relation to the coupes referred to in the particulars to paragraph 45 above; yet
(b) subsequent to 27 May 2020, and despite the matters pleaded in subparagraph (a) above, VicForests continued to conduct Timber Harvesting Operations:
(i) without screening all such operations (and new road alignments) from view; and
(ii) without providing minimum screening of 20m.
PARTICULARS
VicForests conducted Timber Harvesting Operations after 27 May 2020 without screening as alleged in the following coupes, among others:
[particulars are given of nine coupes].
Further particulars may be provided after discovery by VicForests of, among other things, the Operations Maps, Forest Operations Coupe Plans, and Post-harvest Maps and Coupe diaries for the Unscreened Coupes.
57. Further, on 2 July 2020, after:
(a) commencement of these proceedings on 23 June 2020, and
(b) the order of the Honourable Justice Richards on 24 June 2020 that, among other things, until 5:00 pm on 14 July 2020 VicForests must not, whether by itself, its servants, agents, contractors or howsoever otherwise, fell or cut trees or parts of trees in Port within 20 metres of Morrisons Creek Road,
VicForests published:
(c) an amended operations map which provided for the conduct of Timber Harvesting Operations in Port:
(i) without screening all such operations from view of Morrisons Creek Road; and
(ii) without providing minimum screening of 20m, or any screening at all, from parts of Morrisons Creek Road; and
(d) an amended operations map which provided for the conduct of Timber Harvesting Operations in Neil’s Flower:
(i) without screening all such operations from view of Flowerdale Road; and
(ii) without providing minimum screening of 20m, or any screening at all, from parts of Flowerdale Road.
58. In all of the circumstances set out in paragraphs 56 and 57 above, it is probable that, if unrestrained, in some or alternatively all of the coupes in the Central Highlands:
(a)in which VicForests will undertake Timber Harvesting Operations, excluding selective harvesting operations; and
(b)in or
(i)within 500 metres of which; or
(ii)alternatively, adjacent to which
there are Roads and Tracks,
Vic Forests will carry out Timber Harvesting Operations which are not screened from view from those Roads or Tracks by means of a minimum 20 metre vegetation buffer excluded from any harvesting activity.
58A. The Timber Harvesting Operations referred to in paragraph 58 above would be in breach of cl 5.3.1.5 of the Standards, and therefore in breach of cl 2.5.1.1 of the Code.
[Particulars are given of the allegation that breach of cl 5.3.1.5 of the Standards is a breach of the Code]
VicForests seeks to have paragraphs 45 to 57 of the ASOC struck out. Kinglake FF accepted that paragraphs 47 and 50 to 52 should be deleted from its pleading.
Kinglake FF seeks leave to replace paragraphs 47 to 52 of the ASOC with the following paragraphs:
VicForests has contravened the Act
47A. The allocation orders which since 1 July 2015 vested and which currently vest timber resources located in the Central Highlands in VicForests are:
(a)Allocation Order 2013 as varied by Allocation (Amendment) Order 2014; and/or
(b)Allocation Order 2013 as varied by Allocation (Amendment) Order 2019.
48. Each allocation order referred to in the preceding paragraph required VicForests to comply with all relevant Codes of Practice, including the Code, as pleaded in paragraphs 12B and 14 above.
49. The Timber Harvesting Operations undertaken in the coupes referred to in paragraph 45 above, including any coupes yet to be particularised (collectively, Unscreened Coupes) were not undertaken in accordance with the relevant allocation order, because VicForests failed to comply with the Code in undertaking Timber Harvesting Operations in the Unscreened Coupes.
49A. By section 14(2) of the Act, VicForests may only harvest and sell, or harvest or sell, vested timber resources in accordance with the allocation order vesting those timber resources in VicForests.
49B.Further, or alternatively, by section 16 of the Act, on the making of an allocation order, VicForests must carry out its functions in accordance with the allocation order vesting those timber resources in VicForests, in so far as those functions relate to timber resources or the area to which the order applies.
49C.Further, or alternatively, by section 46(a) of the Act, VicForests must comply with any relevant Code of Practice relating to timber harvesting.
49D.In consequence of paragraph 49A and/or 49B and/or 49C above, and the matters pleaded in paragraphs 46 to 49 above:
(a)VicForests harvested the timber in each of the Unscreened Coupes in contravention of sections 14(2), 16 and/or 46(a) of the Act; and
(b)the timber in each of the Unscreened Coupes was harvested in contravention of laws in force in the place where that timber was harvested.
VicForests opposes this proposed amendment, on essentially the same basis that it seeks to have paragraphs 45 to 57 of the ASOC struck out.
Alleged overharvesting
The next section of the ASOC concerns the claim that VicForests is overharvesting a number of coupes, by harvesting an area greater than the nett area to be harvested specified in the published timber release plan for those coupes. Under the heading ‘Overharvesting’, the claim is currently pleaded as follows:
59. By section 38(2) of the Act, VicForests is permitted to include any matters necessary or convenient to be included in a Timber Release Plan.
60. VicForests included, for each coupe listed in
(a) some or all of the Timber Release Plans or changes to those plans listed in the Schedule; and
(b) the 2019 TRP,
a statement of the nett area to be harvested, in hectares, of that coupe.
PARTICULARS
Particulars of the Timber Release Plans or changes to those plans in which a statement of the nett area to be harvested was included may be provided after VicForests make discovery of the Timber Release Plans and the changes to those plans listed in the Schedule.
Past overharvesting
61. In certain coupes in the Central Highlands, VicForests has between 1 August 2004 and 24 June 2020 harvested nett areas in excess of the specified nett areas to be harvested identified for those coupes in the Timber Release Plan that was in effect at the relevant time.
PARTICULARS
The 2019 TRP identified a nett area (ha) of 16.0 hectares for Ambi Turner. The Forest Operations Coupe Plan identified an area of Harvest Unit (operational area) of 23.2 hectares. VicForests has harvested a nett area of about 23.2 hectares in Ambi Turner, in excess of the nett area of 16.0 hectares identified in the 2019 TRP.
Particulars of further coupes the Central Highlands in which VicForests has harvested nett areas in excess of the nett areas to be harvested specified for those coupes in the Timber Release Plan that was in effect at the relevant time may be provided after discovery by VicForests of its Timber Release Plans, Operations Maps, Forest Operations Coupe Plans, Post-Harvest Operations Maps, and Coupe Diaries for all coupes harvested in the Central Highlands between 1 August 2004 and 24 June 2020.
VicForests has committed offences
62. By section 45(2) of the Act, Act Harvesting Operations involving timber from trees or parts of trees specified as available for timber harvesting in an allocation order are undertaken by or on behalf of VicForests, those Act Harvesting Operations are “authorised operations” only when undertaken in accordance with an allocation order and a Timber Release Plan that relates to that allocation order.
63. The Act Harvesting Operations undertaken in the coupes referred to in paragraph 61 above, including any coupes yet to be particularised (collectively, Overharvested Coupes) were not undertaken in accordance with the Timber Release Plan that was in effect at the relevant time, which is the Timber Release Plan that related to the relevant allocation order for the purpose of section 45(2) of the Act.
64. Consequently, the Act Harvesting Operations undertaken by VicForests in the Overharvested Coupes were not authorised operations.
65. Section 45(1) of the Act makes it an offence for a person to undertake Act Harvesting Operations in any part of a State forests unless those operations are authorised operations.
66. Consequently, in conducting Act Harvesting Operations in the Overharvested Coupes, VicForests has committed:
(a) offences under section 45(1) of the Act; and
(b) more particularly, a separate offence under section 45(1) of the Act in relation to Act Harvesting Operations undertaken in each Overharvested Coupe.
Probable future overharvesting
67. VicForests has published Operations Maps and Forests Operations Coupe Plans on its website for:
(a) Watering Can;
(b)Point Plomer;
(c) Mariner;
(d) Triple Don;
(e) Pilchard; and
(f) Port.
68. The estimated nett area shown on the Operations Map, and the area of harvest unit (operational area) shown on the Forest Operations Coupe Plan, for each of the coupes identified in the preceding paragraph, exceeds the nett area (ha) as set out in the 2019 TRP.
PARTICULARS
[Particulars are given of the nett area to be harvested shown on the 2019 TRP, the Operations Map and the Forest Operations Coupe Plan for each of seven named coupes].
69. Further, VicForests has stated publicly that it does not regard itself as required by section 45 of the Act to restrict the extent of its Act Harvesting Operations in the Overharvested Coupes to the nett area to be harvested that has been specified in a Timber Release Plan.
PARTICULARS
Statements made by counsel for VicForests in open court at the hearing of KFF’s application for an interim injunction on 24 June 2020.
Transcript of the hearing is available for inspection at the Plaintiff’s solicitor’s office by prior appointment.
70. Consequently, it is probable that, if unrestrained, VicForests will engage in Act Harvesting Operations that are not in accordance with:
(a) the 2019 TRP in the Overharvested Coupes, to the extent that this has not already occurred; and/or
(b) future Timber Release Plans which specify the nett area to be harvested in particular coupes.
VicForests contended that paragraphs 61 to 69 of the ASOC should be struck out. Again, Kinglake FF accepted that paragraphs 62 and 64 to 66 cannot remain in their current form.
Kinglake FF seeks leave to substitute the following paragraphs for paragraphs 62 to 66 of the ASOC:
63.The Timber Harvesting Operations undertaken in the coupes referred to in paragraph 61 above, including any coupes yet to be particularised (collectively, Overharvested Coupes) were not timber harvesting operations for [the] purpose of the Act (Act Harvesting operations) undertaken in accordance with a Timber Release Plan.
63A.By section 44 of the Act, VicForests is required to carry out its functions and powers under the Act in relation to vested timber resources in accordance with any timber release plan.
63B.In consequence of paragraph 63A above, and the matters pleaded in paragraphs 59 to 63 above:
(a)VicForests harvested the timber in each of the Overharvested Coupes in contravention of section 44 of the Act; and
(b)the timber in each of the Overharvested Coupes was harvested in contravention of laws in force in the place where that timber was harvested.
VicForests submitted that Kinglake FF should not have leave to make those amendments, because the claim they plead would have no real prospect of success.
Relief claimed
The prayer for relief in the ASOC claims:
A. A permanent injunction restraining VicForests from carrying out Timber Harvesting Operations (except selective harvesting operations) in the Central Highlands which are not screened from view from any road or track in or
a. within 500 metres of; or
b. alternatively, adjacent to
the coupe in which the Timber Harvesting Operations are being carried out, by means of a minimum 20 metre vegetation buffer excluded from any harvesting activity.
C. A permanent injunction restraining VicForests from engaging in Act Harvesting Operations in any coupe in the Central Highlands, within a nett area in excess of the nett harvestable area identified in a Timber Release Plan in effect at the time.
E. A declaration that, in conducting Act Harvesting Operations in each of the Unscreened Coupes, VicForests has committed a separate offence under section 45(1) of the Act.
F. A declaration that, in conducting Act Harvesting Operations in each of the Overharvested Coupes, VicForests has committed a separate offence under section 45(1) of the Act.
VicForests seeks the summary dismissal of the claims for declarations in paragraphs E and F, on the basis that they would amount to declarations that it has committed criminal offences. Kinglake FF accepted that it cannot obtain declarations to that effect.
Kinglake FF seeks leave to amend its prayer for relief in the FASOC, to seek the following declarations:[7]
E.A declaration that the timber harvested by VicForests in each of the Unscreened Coupes was harvested in contravention of laws in force in the place where that timber was harvested, namely sections 14(2), 16, and 46(a) of the Sustainable Forests (Timber) Act 2004 (Vic).
F.A declaration that the timber harvested by VicForests in each of the Overharvested Coupes was harvested in contravention of laws in force in the place where that timber was harvested, namely section 44 of the Sustainable Forests (Timber) Act 2004 (Vic).
[7]In the proposed FASOC exhibited to the affidavit in support of Kinglake FF’s summons, these proposed declarations were numbered ‘C’ and ‘D’ and did not specify the provisions of the Act that it alleged VicForests had contravened. At the hearing of the summons on 13 November 2020, Kinglake FF renumbered and reformulated the proposed declarations as set out in this paragraph.
VicForests contended that the amendment should not be allowed, because VicForests has no real prospect of obtaining declarations to that effect.
Declarations sought
As Garde J noted in Warburton (No 2), it is an established general rule that it is only in exceptional circumstances that a court will make a declaration in a civil proceeding that a defendant has committed a crime.[8] This is because a defendant in a civil proceeding does not have the same protections afforded to an accused person in a criminal proceeding, such as the higher standard of proof and the procedural protections in the Criminal Procedure Act 2009 (Vic), which include the prosecution’s obligation of disclosure.[9]
[8]Warburton (No 2), [59]–[60].
[9]Warburton (No 2), [60]; Criminal Procedure Act 2009 (Vic), ss 35–49.
Kinglake FF does not seek to plead that there are exceptional circumstances in this case that would justify making declarations that VicForests has committed offences against s 45(1) of the Act. Rather, it seeks to reframe the declarations sought, to declarations that VicForests has contravened ‘laws in force in the place where that timber was harvested’, namely ss 14(2), 16, and 46(a) in relation to the Unscreened Coupes, and s 44 in relation to the Overharvested Coupes.
Kinglake FF submitted that these declarations would ‘produce important consequences for the public (and for the defendant) but involve no finding, and require no enquiry, as to whether the defendant has committed offences’.[10] The words ‘laws in force in the place where that timber was harvested’ are taken from the definition of ‘illegally logged’ in the Illegal Logging Prohibition Act 2012 (Cth).[11] The Illegal Logging Prohibition Act makes it an offence for timber processors to process illegally logged timber, and requires processors to take prescribed due diligence measures to ensure this does not occur.[12] Kinglake FF argued that the declarations sought would advance the purposes of the Illegal Logging Prohibition Act, and would assist timber processors to comply with the prescribed due diligence requirements. It emphasised that it makes no allegation that VicForests was in breach of the Illegal Logging Prohibition Act, and that the case it seeks to plead is different from the submission that Garde J understood was made in Warburton (No 2).[13]
[10]Plaintiff’s consolidated submissions dated 11 November 2020, [29].
[11]Illegal Logging Prohibition Act 2012 (Cth), s 7.
[12]Illegal Logging Prohibition Act, ss 15, 17, 18.
[13]Warburton (No 2), [69].
Further, Kinglake FF contended that the declarations sought do not amount to declarations of criminal conduct by VicForests, because they concern only one of the elements necessary for a finding of criminal liability, and exclude any reference to the mental element of an offence against s 45(1) of the Act.[14] Kinglake FF relied on the declarations made by Mortimer J in Federal Court proceeding Friends of Leadbeater’s Possum Inc v VicForests VID1228/2017,[15] which it submitted were similar in content to the declarations it wishes to seek in this proceeding. It also argued that, in circumstances where a defendant does not admit its breach, a declaration may be made to publicly highlight the breaches that have occurred.[16]
[14]Relying on He Kaw Teh v The Queen (1985) 157 CLR 523, 566 (Brennan J).
[15]Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704; Friends of Leadbeater’s Possum Inc v VicForests (No 6) [2020] FCA 1199.
[16]Relying on Director General, Department of Environment, Climate Change and Water v Venn (2011) 210 LGERA 300, [276]–[284]; Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (2018) 234 LGERA 1, [869]–[871].
VicForests submitted that Kinglake FF has no real prospect of obtaining the alternative declarations sought, because they would produce no foreseeable consequences for the parties.[17] In circumstances where the Illegal Logging Prohibition Act does not apply directly to VicForests, and there is no controversy between the parties concerning the Illegal Logging Prohibition Act, VicForests characterised the proposed declarations as ‘the plaintiff effectively asking the court to give some advice to participants in the logging industry in case they find that interesting’.[18] VicForests submitted that this would be an abstract or hypothetical exercise that would not involve a proper judicial process. It pointed out that Garde J was not prepared to entertain a claim for declarations in similar terms in Warburton (No 2).[19]
[17]Relying on Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581–582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[18]Transcript, 13 November 2020, 38:26–29.
[19]Warburton (No 2), [78].
As to whether Kinglake FF could simply seek declarations that VicForests had contravened ss 14(2), 16, and 46(a) of the Act in relation to Unscreened Coupes, and s 44 in relation to Overharvested Coupes, VicForests characterised this as a distinction without a difference. It submitted that those declarations would be the same in substance as the declarations currently sought in the ASOC; that is, that the effect of a declaration that VicForests had contravened one of those provisions would be to declare that VicForests had offended against s 45(1) by undertaking unauthorised timber harvesting operations.
Consideration
The power of the Supreme Court of Victoria to grant declaratory relief is a broad and unfettered discretion. However:[20]
… it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court’s declaration will produce no foreseeable consequences for the parties”.
A declaration may be made if it determines a real controversy arising from a concrete situation; a declaration will not be made if it would amount to no more than an advisory opinion about a hypothetical situation.[21]
[20]Ainsworth, 582 (Mason C, Dawson, Toohey and Gaudron JJ) (citations omitted).
[21]Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, [47]–[48] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, [103].
I accept VicForests’ submission that Kinglake FF has no real prospect of obtaining the proposed declarations framed by reference to the Illegal Logging Prohibition Act. Declarations in that form would not determine any real controversy between Kinglake FF and VicForests, based on facts alleged in the ASOC or the proposed FASOC. They would produce no foreseeable legal consequences for VicForests, which is not a timber processor to which the Illegal Logging Prohibition Act applies. Nor would they vindicate any public interest that Kinglake FF claims it has standing to protect. Notably, Kinglake FF does not plead that it has a special interest in the observance by unnamed timber processors of the provisions of the Illegal Logging Prohibition Act, and has not attempted to establish standing in relation to that statutory framework.
The proposed declarations are not equivalent to those made by Mortimer J in Leadbeater’s Possum. The effect of declarations 1 to 7 made by her Honour in that case were that, because of the contraventions specified in each declaration, the exemption in s 38(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) did not apply to the specified forestry operations. The declarations resolved a controversy between the parties to that proceeding as to whether the exemption applied to certain timber harvesting operations undertaken by VicForests.[22] There is no controversy in this proceeding about the application of the Illegal Logging Prohibition Act.
[22]Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704, [169]–[178]; Friends of Leadbeater’s Possum Inc v VicForests (No 6) [2020] FCA 1199, [5].
I have considered whether leave should be granted to amend the claim for declaratory relief to a simpler alternative: namely, declarations that the timber harvested by VicForests in each of the Unscreened Coupes was harvested in contravention of ss 14(2), 16, and 46(a) of the Act, and that the timber harvested by VicForests in each of the Overharvested Coupes was harvested in contravention of s 44 of the Act. This formulation would omit the words ‘laws in force in the place where that timber was harvested’, derived from the Illegal Logging Prohibition Act, and would be limited to declarations that VicForests has breached non-penal provisions of the Act.
While declarations in this form would determine real controversies arising from facts alleged in the ASOC and the proposed FASOC, they would in my view still amount to declarations that VicForests has engaged in unauthorised timber harvesting operations that are prohibited by s 45(1) of the Act. In other words, they would in substance amount to declarations that VicForests has committed criminal offences. The structure of the Act is that VicForests must comply with the prescriptions in Pt 5 and Pt 6, and with the Code and the Standards, on pain of criminal liability. I do not accept that Kinglake FF can sidestep the problem by omitting from its proposed declarations the ultimate legal consequence of the alleged breaches.
For completeness, I consider Kinglake FF’s reliance on He Kaw Teh v The Queen[23] to be misplaced. That case concerned the effect of ignorance or mistake of fact on criminal liability; it did not displace the principle that ignorance of the law is no excuse.[24] There is no suggestion in VicForests’ defence that it did not know what timber it was harvesting. Rather, it pleads that it was not obliged to maintain a 20 metre vegetation buffer along any road or track to screen its timber harvesting operations from view,[25] and that it was not bound to harvest no more than the nett area specified for a coupe in its timber release plan.[26] If it turns out that VicForests has been harvesting timber based on an incorrect interpretation of the Act, the Code, and the Standards, its ignorance of the law (as distinct from ignorance of the essential factual elements of the offence) would not excuse it from criminal liability.
[23](1985) 157 CLR 523 (He Kaw Teh).
[24]He Kaw Teh, 572 (Brennan J), citing R v Turnbull (1943) 44 SR (NSW) 108, 109 (Jordan CJ).
[25]Defence dated 11 August 2020, [58].
[26]Defence dated 11 August 2020, [60](b)(iii).
Given that Kinglake FF does not seek to plead exceptional circumstances that might justify making declarations that VicForests has committed criminal offences, it has no real prospect of obtaining them.[27] I will therefore refuse Kinglake FF leave to include proposed paragraphs E and F in the prayer for relief in its amended pleading.
[27]Pharmacy Guild of Australia v Ramsay Health Care [2019] NSWSC 1045, [157]–[166]. See also Warburton (No 2), [61].
Allegations of past contraventions
The remaining paragraphs of the ASOC and the proposed FASOC that are impugned by VicForests are not pleaded only in support of the disallowed claims for declarations. They are also pleaded in aid of the claims for permanent injunctions.
VicForests submitted that the pleadings of past contraventions in paragraphs 45 to 57 and 61 to 69 of the ASOC should be struck out, and the proposed paragraphs 47A to 49D and 63 to 63B of the FASOC should not be allowed. Aside from its well-founded objections to the claimed declarations, VicForests based this submission on its foreshadowed intention to make certain admissions to facilitate the resolution of the real issues in dispute in the proceeding, without the need for Kinglake FF to prove past alleged conduct by VicForests. It argued that these admissions would make it unnecessary and extraneous for Kinglake FF to prove any alleged past contraventions, and so those paragraphs of its pleading should be struck out.
The proposed admissions were foreshadowed in a letter from VicForests’ solicitors dated 22 October 2020, which was sent together with VicForests’ summons seeking summary dismissal of the proceeding, or parts of it. Relevantly, the letter read:
In this letter, we also make certain admissions in the proceeding, in order to facilitate the more efficient resolution of the real issues in dispute between the parties.
Admissions to facilitate determination of the real issues in dispute
VicForests will make the following admissions in this proceeding.
1If your client is not given leave to amend its Amended Statement of Claim (ASOC) as sought by its summons, then VicForests will admit paragraph 58 of the ASOC, except for the words “In all of the circumstances set out in paragraphs 56 and 57 above”.
That is because: (a) VicForests will comply with any injunction the Court makes in respect of the issue raised by paragraphs 42(b), 43, 43B and 58 of the ASOC, whether in the form sought in paragraph A of the prayer for relief of otherwise; and (b) if the Court determines that issue and claim for relief, in such a way that VicForests may lawfully conduct harvesting operations within any part or all of the areas described in paragraph A of the prayer for relief, the VicForests will conduct timber harvesting operations in those areas as and when it decides to do so, in accordance with the Court’s decision.
2If your client is not given leave to amend its ASOC as sought by its summons, then VicForests will admit that (unless and to the extent that, on determining this proceeding the Court restrains it from doing so) it intends to conduct harvesting operations in the available area of each coupe referred to in paragraphs 59-70 of the ASOC and paragraph C of the prayer for relief in the ASOC, regardless of the nett harvestable area state in the 2019 TRP (as defined in the ASOC).
That is because, if the Court determines that issue and claim for relief, in such a way that VicForests may lawfully conduct harvesting operations within any or all available areas of the coupes described in paragraph C of the prayer for relief, then VicForests will conduct timber harvesting operations in those areas as and when it decides to do so, in accordance with the Court’s decision.
The purpose of these admissions is to facilitate the more efficient resolution of the real issues in dispute between the parties. To be clear, they remove the need for the plaintiff to prove alleged past breaches in order to establish that VicForests is likely, if not restrained from doing so, to engage in timber harvesting operations in accordance with the view of the operation of cl 5.3.1.5 of the Standards and the effect of the nett area figures set out in the 2019 TRP held by it, and for which it will contend in the proceeding.
The defence filed by VicForests on 11 August 2020 does not reflect this position. In answer to paragraph 58, it pleads:
It says that it is not required to screen Timber Harvesting Operations from view by means of a 20 metre vegetation buffer along any road or track in the Central Highlands:
(a) which is not a major road of particular scenic significance; and
(b) where such a buffer is not required to protect the sensitive landscape features listed in table 9 in Appendix 5 [of] the Planning Standards;
and otherwise denies the allegations made in paragraph 58.
It denies the allegations in paragraph 70 of the ASOC, that, if not restrained, VicForests is likely to engage in timber harvesting operations that are not in accordance with the current timber release plan, and future timber release plans that specify the nett area to be harvested in particular coupes.
Kinglake FF’s proposed FASOC sets out in some detail the basis on which it alleges that, unless restrained, it is probable that VicForests will continue to engage in unauthorised timber harvesting operations, contrary to the Act. In the case of both the alleged failure to screen, and the alleged overharvesting, it bases its allegation of likely future conduct in large part on VicForests’ alleged past conduct. In that respect, it is an orthodox pleading, consistent with Kinglake FF’s obligation to plead the material facts on which it relies in support of the ultimate allegations made in paragraphs 58 and 70 of the proposed FASOC.
VicForests cited no authority for the proposition that the Court should disallow a pleading on the basis of a foreshadowed, contingent admission. It did not submit that the impugned paragraphs were scandalous, frivolous, or vexatious, that they might prejudice, embarrass or delay the fair trial of the proceeding, or that they were an abuse of process.[28] During oral submissions, counsel for VicForests accepted that they disclosed a basis for the injunctions sought, subject to VicForests’ objections to Kinglake FF’s standing to seek those injunctions.[29] I am not persuaded that there is any basis on which to strike out paragraphs 45, 46, 48, 49, 53 to 57, 61, 63, and 67 to 69 of the ASOC, or to disallow the amendments to those paragraphs from 47A to 49D and 63 to 63B of the proposed FASOC.
[28]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 23.02(b)–(d).
[29]Transcript, 13 November 2020, 41:5–42:25; 50:1–51:26.
There is more to be said for VicForests’ position that, from a case management point of view, it would be most efficient to focus on the critical issues in dispute: namely, the extent of VicForests’ obligation, under clause 5.3.1.5 of the Standards, to screen timber harvesting operations from view, and the effect of including nett areas to be harvested in its timber release plan. There are a range of case management measures available to achieve that end, short of striking out the impugned paragraphs. First, VicForests can make appropriate admissions. As a government business enterprise, and hence a model litigant, it can be expected to admit allegations that it knows to be true.[30] Second, it can seek to reach agreement with Kinglake FF as to facts in the proceeding, under s 191 of the Evidence Act 2008 (Vic). Third, it can apply for the determination of separate questions, based on admitted or agreed facts.[31]
[30]Guidelines on the State of Victoria’s obligation to act as a model litigant, 2(g)(i), (iii).
[31]Rules, r 47.04. See Vale v Daumeke [2015] VSC 342, [31] for a summary of the principles as to when it is appropriate to determine a separate question in a proceeding.
Standing
Preliminary to all of those measures, VicForests seeks to have the question of Kinglake FF’s standing determined at an early stage of the proceeding. It contends that Kinglake FF has no standing to seek relief against it in respect of the contraventions of the Act, Code, and Standards alleged in the proposed FASOC. Alternatively, it contends that Kinglake FF’s standing is limited to timber harvesting operations in Kinglake, and does not extend to the broader Central Highlands Region.
VicForests pointed out that standing was determined as a preliminary question in Australian Conservation Foundation Inc v Commonwealth.[32] It accepted that standing can be determined at trial in an appropriate case, for example, where the trial of the proceeding is expedited. Maguire v Parks Victoria[33] and Loielo v Giles (Ruling No 2)[34] are recent examples of cases in which that occurred. VicForests submitted that would not be appropriate in this case, where numerous past contraventions are alleged, substantial discovery has been ordered, and the trial is listed in November 2021 with a 10 day estimate.
[32](1980) 146 CLR 493, 505 (Aickin J), 532–533 (Gibbs J), 552 (Mason J).
[33][2020] VSC 303, upheld on appeal in Maguire v Parks Victoria [2020] VSCA 172.
[34][2020] VSC 723.
Kinglake FF resisted this course. It urged me to take the same approach that Ginnane J took in Loielo v Giles:[35]
I accept that the Court must have a case presented in which the plaintiff has standing. However, the Court has jurisdiction to proceed with the hearing of a case and determine the standing issue at an appropriate time. There is no rule of law that the Court must, before proceeding further, determine standing. Indeed, in the recent case of Maguire v Parks Victoria, to which I have been referred, and in which the issue of standing was ultimately decisive, the trial judge heard and decided all the points in the case. Indeed, it is often not possible or is undesirable to determine standing as a preliminary issue.
[35]Ibid, [10] (citations omitted).
It submitted that its standing should be determined based on all the evidence, including evidence of relevant acts done between the commencement of the proceeding and trial.[36]
[36]Relying on WOTCH Inc v VicForests (No 6) [2020] VSC 674, [95].
In this case, I consider that the question of the plaintiff’s standing should be determined before trial. Resolution of the question in favour of VicForests will finally determine the proceeding. If the question is resolved in favour of Kinglake FF, its claims for permanent injunctions will proceed on a more secure basis. The case pleaded by Kinglake FF is factually complex, involving numerous allegations of past contraventions by VicForests, some of them yet to be particularised. VicForests has been ordered to make discovery of documents by 27 January 2021, and Kinglake FF has already issued subpoenas for production directed to two of VicForests’ contractors. Until the hearing and determination of the proceeding, currently listed for trial in November 2021, VicForests’ timber harvesting operations in the Central Highlands Region are constrained by the interlocutory injunctions granted in July 2020. In those circumstances, it is not reasonable for Kinglake FF to commence the proceeding, obtain interlocutory injunctions, engage VicForests in preparation for trial, and then seek a further year in which to establish that it has standing.
Disposition
In relation to Kinglake FF’s summons of 6 October 2020, I will order that it has leave to file and serve a further amended statement of claim in the form of exhibit KAL-1 to the affidavit of Kwabena Adjei Larbi sworn 6 October 2020, excluding the proposed declarations at paragraphs C and D of the prayer for relief.[37] That order will also dispose of the issues raised by paragraph 3 of VicForests’ summons filed 27 October 2020.
[37]These paragraphs correspond to paragraphs E and F of the prayer for relief in the ASOC dated 24 July 2020.
Paragraphs 1 and 2 of VicForests’ summons, which concern Kinglake FF’s standing, will be listed for hearing on a mutually convenient date before the end of the year.
I will deal with the costs of both summonses after the balance of VicForests’ summons has been heard and determined.
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