SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2012 0067 | |
| MyEnvironment Inc | Appellant |
| v | |
| ViCForests | Respondent |
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JUDGES: | WARREN CJ, TATE JA and GARDE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 June 2013 | |
DATE OF JUDGMENT: | 10 December 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 356 | |
JUDGMENT APPEALED FROM: | MyEnvironment Inc v VicForests [2012] VSC 91 (Osborn JA) | |
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ENVIRONMENTAL LAW – Proposed logging in three coupes near Toolangi – Appeal from a refusal to grant a permanent injunction to restrain logging – Whether small areas within the coupes comprise protected habitat for Leadbeater’s possum – Construction of zoning criteria in two regulatory instruments – Central Highlands Forest Management Plan – Flora and Fauna Guarantee Action Statement – Whether for zoning purposes hollow-bearing trees should be mature and senescing or of any age – Balance between competing interests – Zoning criteria not designed to capture all suitable habitat but only optimal habitat or that with presently existing potential – Appeal dismissed – Forests Act 1958, ss 3 and 22 – Conservation Forests and Lands Act 1987, ss 4, 6, 10, 35 and 39 – Sustainable Forests (Timber) Act 2004, ss 1, 5, 37, 39, 40 and 46 – Flora and Fauna Guarantee Act 1988, ss 1, 3, 4, 11 and 19.
STATUTORY INTERPRETATION – Construction where competing purposes – Kelly v The Queen (2004) 218 CLR 216 considered – Nicholls v The Queen (2005) 219 CLR 196, Carr v Western Australia (2007) 232 CLR 138 and Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 87 ALJR 1009 applied – VictimsCompensation Fund v Scott Brown & Ors [2002] NSWCA 155 (Spigelman CJ in dissent) considered.
WORDS – ‘Mature and senescing’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J W K Burnside QC with Mr E M Nekvapil | Environment Defenders Office (Victoria) Ltd |
| For the Respondent | Mr I G Waller SC with Mr H L Redd | Baker & McKenzie |
WARREN CJ:
I have had the considerable benefit of reading the draft judgment of Tate JA. I agree with her Honour’s reasons. I also add some additional observations on the statutory construction issue, considered in Tate JA’s reasons, that arises in response to the appellant’s submissions that the purpose of the relevant legislation is to protect the habitat of the Leadbeater’s possum, and that the Court should endeavour to construe the relevant provisions expansively with a view to furthering this legislative purpose.
The purposive approach to statutory interpretation, as embodied in s 35 of the Interpretation of Legislation Act 1984, provides that a construction that would promote the purpose or object underlying the Act or subordinate instrument shall be preferred to a construction that would not promote that purpose or object. Both the Leadbeater’s Possum Action Statement (‘LBP AS’) and the Central Highlands Forest Management Plan (‘the plan’),[1] being subordinate instruments, fall to be construed in accordance with this provision.
[1]These terms are defined in the reasons of Tate JA…
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- AGLC
- MyEnvironment Inc v VicForests [2013] VSCA 356
- Case
- [2013] VSCA 356
- Decision Date
CaseChat Overview and Summary
The Court of Appeal considered the purpose of the relevant legislation and regulatory instruments, including the Forests Act 1958, the Conservation Forests and Lands Act 1987, the Sustainable Forests (Timber) Act 2004 and the Flora and Fauna Guarantee Act 1988. The Court examined the wording of the instruments, particularly the phrase ‘mature and senescing’ in relation to hollow-bearing trees. The Court applied principles of statutory interpretation, including the competing purposes test, to determine the appropriate construction of the instruments. The Court concluded that the zoning criteria were not designed to capture all suitable habitat but only optimal habitat or that with presently existing potential.
The Court found that the regulatory instruments did not require all suitable habitat for the Leadbeater’s possum to be protected, but only optimal habitat or that with presently existing potential. The Court held that the phrase ‘mature and senescing’ was not ambiguous and did not require hollow-bearing trees of any age to be protected. The Court dismissed the appeal, affirming the decision of the lower court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Ratio Decidendi
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