Thomas v Secretary of the Department of Sustainability and Environment

[2007] VSC 198

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10546 of 2006

ALEXANDER JAMES THOMAS	Plaintiff
v
THE SECRETARY OF THE DEPARTMENT OF SUSTAINABILITY AND ENVIRONMENT	Defendant

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 JUNE 2007
DATE OF JUDGMENT:	14 JUNE 2007
CASE MAY BE CITED AS:	THOMAS v SECRETARY OF THE DEPARTMENT OF SUSTAINABILITY AND ENVIRONMENT
MEDIUM NEUTRAL CITATION:	[2007] VSC 198

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PRACTICE AND PROCEDURE – Pleading - Statement of claim – Striking out - RSC r.23.01 – Whether statement of claim discloses a cause of action – Whether plaintiff has requisite standing – Lawfulness of a “Declaration of Public Safety Zones” made pursuant to s.4 of the Safety on Public Land Act 2004 – No cause of action disclosed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N. Lucarelli QC with Mr C. Salpic	Coadys
For the Defendant	Mr O.P. Holdenson QC with Ms K. Judd	Victorian Government Solicitor

HIS HONOUR:

1. I have before me a summons dated 16 March 2007. It was issued by the Secretary of the Department of Sustainability and Environment, who is the defendant in a proceeding brought by Alexander James Thomas. The summons seeks orders that the proceeding be summarily dismissed pursuant to Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 on the grounds that it does not disclose a cause of action, is scandalous, frivolous or vexatious, or is otherwise an abuse of the process of the Court. According to the summons, the alleged defects in the procedure arise from the circumstance that (as the defendant submits) the plaintiff does not have the requisite standing to bring the proceeding.

1. Although Mr Thomas is the plaintiff in this Court, he is named as the defendant to a number of charges returnable in the Magistrates’ Court at Mansfield. Three of those charges are presently relevant. Each alleges an offence which took place on 13 February 2006 at a timber logging coupe known as the “Iron Pipe” coupe in Royston Road, near Thornton, a township on the Goulburn Valley Highway between Alexandra and Eildon. The first charge is that, when not authorised to do so, Mr Thomas carried out an activity in a public safety zone in contravention of a public safety zone declaration. This, according to the charge, is contrary to s.13(1) of the Safety on Public Land Act 2004. The prescribed penalty is 20 penalty units.

1. The second charge is that, when in a public safety zone without any relevant authorisation, Mr Thomas refused to leave when directed by an authorised officer to do so.  This, according to the charge, is a breach of s.14(3) of the Act, and (again) carries a penalty of 20 penalty units. 

1. Finally, the third charge is that, without reasonable excuse, Mr Thomas obstructed an authorised officer who at the time of the obstruction was exercising his duties or powers under the Act. On this occasion, the relevant provision is s.20 of the Safety on Public Land Act, and the prescribed penalty is 60 penalty units.

1. As the charges have been formulated, they depend for their validity upon the public safety zone in question having been established in accordance with law, and upon the Iron Pipe coupe being within its parameters.  Unless both propositions can be made good, the prosecution must fail.

1. The second of the two propositions is not in contest.  The declaration by which the relevant public safety zone purports to have been established was made on 1 October 2005, and embraces 29 separate areas of State forest.  One of these 29 areas is identified by the co-ordinates that, as both sides accept, delineate the Iron Pipe coupe.  That coupe is therefore within the geographical boundaries of one of the public safety zones in question.

1. If it is to be successful, however, the prosecution must also prove the first of the two propositions: that the relevant public safety zone was established in accordance with law.  If it was not so established, the charges cannot be sustained.  It is this point which lies at the heart of the present controversy.

1. In pursuit of his claim that the public safety zone which incorporates the Iron Pipe coupe was not established in accordance with law, Mr Thomas on 21 December 2006 issued proceedings in the Supreme Court seeking, amongst other relief, a declaration that a “Declaration of Public Safety Zones” issued by the Secretary of the Department on 1 October 2005 was unlawful, or was beyond power. The plaintiff also seeks a declaration that the decision to approve timber harvesting in the Iron Pipe coupe was likewise unlawful, or was beyond the power conferred on the defendant by s.40(1) of the Sustainable Forests (Timber) Act 2004.

1. For reasons to which I shall come, it seems to me that Mr Thomas has no standing to bring proceedings which seek a declaration under the latter Act.  He does, however, have standing to seek a declaration under the Safety on Public Land Act.

1. The statement of claim that was issued with the writ has since been amended.  At the commencement of the hearing before me, I gave the plaintiff leave to file a further amended statement of claim in the form of a document annexed to the plaintiff’s written outline of submissions dated 28 May 2007.

1. The further amended statement of claim alleges the bringing of the charges to which I have already referred.  There are then pleaded the several steps which, as the plaintiff alleges, were required to be taken by the defendant as necessary preconditions for the lawful authorisation of the harvesting of timber from the coupe in question.  The plaintiff also alleges that the steps actually taken by the defendant when authorising logging in the Iron Pipe coupe were defective.  For his part, the defendant accepts that, for the purposes of his application to dismiss this proceeding as disclosing no cause of action (or as being scandalous, frivolous or vexatious) the court must assume that the allegations of fact as asserted in the further amended statement of claim will be made good at trial.

1. The defendant argues that Mr Thomas has no standing to bring this proceeding.  Insofar as, by bringing it, the plaintiff seeks a declaration that the “Declaration of Public Safety Zones” of 1 October 2005 was unlawful or beyond power, I disagree.  If the plaintiff is successful in obtaining the declaration sought by him, the charges will not be sustainable.  Ex hypothesi, the relevant public safety zone was not established in accordance with law.  But if the charges cannot be sustained, Mr Thomas could not be convicted of the offences in question.  If he cannot be convicted of those offences, he would not be liable to the penalties that might otherwise be imposed.  He necessarily, therefore, has an interest in obtaining such an outcome.  It follows that he has the requisite standing:  Croome & Anor v The State of Tasmania[1].

   [1](1997) 191 CLR 119, esp at 127-128 per Brennan CJ and Dawson and Toohey JJ.

1. There remains, however, the question whether the statement of claim as pleaded in its further amended form discloses a cause of action.  In my opinion, it does not.

1. The plaintiff does not allege that the defendant has no power to declare an area of State forest to be a public safety zone. Even if made, such an allegation would fail. Section 4(1) of the Safety on Public Land Act gives the defendant the necessary power, provided it is exercised for one or more of the purposes specified in s.4(2).  Among the specified purposes is that which is the subject of s.4(2)(g):  “Timber harvesting operations”.

1. The Declaration of 1 October 2005 conforms with s.4.  It includes a statement that “[t]he purpose for which the areas have been declared public safety zones is for the purpose of timber harvesting operations”.  On its face, therefore, the Declaration complies with s.4 of the Act.  It is not alleged that it contravenes any other provision of that legislation.

1. The further amended statement of claim does allege, however, that “[t]he timber harvesting operations” referred to in s.4(2)(g) of the Act are restricted to “lawful timber harvesting operations”.  To the extent that particular operations are unlawful, as they allegedly are in the Iron Pipe coupe, the “Declaration of Public Safety Zones” is itself unlawful, and for that reason is incapable of sustaining the charges laid against Mr Thomas.

1. This conclusion is based upon a premise that is not to be found in the Act itself.  On the contrary, timber harvesting operations that are not conducted in accordance with law may for that very reason be especially dangerous.  Parliament may therefore have intended that, far from s.4(2)(g) being restricted to lawful timber harvesting, it was especially appropriate as a mechanism for the protection of the public from operations that were unlawful (and, for that reason, especially dangerous).  One of the Act’s principal purposes, after all, is “to provide for public safety in State forests by providing for the establishment and enforcement of public safety zones”:  see s.1(a).

1. In recognition of the strength of this point, the argument of senior counsel for the plaintiff (Mr Nunzio Lucarelli QC) shifted ground somewhat from the position pleaded by his client in the further amended statement of claim.  A declaration issued for the purpose specified in s4(2)(g) will be lawful, he submitted, if the only element of unlawfulness tainting timber harvesting operations being conducted in the public safety zone thus established is that those operations do not comply with the conditions attached to their authorisation.  On the other hand, such a declaration would be unlawful if the timber harvesting operations are unlawful in the sense that the relevant authorities had not complied with the regime compliance with which is a precondition of the operations being authorised according to law.

1. There is, it is true, an elaborate legislative regime in place designed to ensure that permission to harvest timber is only given when that harvesting is, to the extent that Parliament has sought to protect conservation values, compatible with those values.  I assume, for the purposes only of the present application, that the relevant regime was not followed when logging was authorised in the Iron Pipe coupe, and, accordingly, that authorisation of those timber harvesting operations were contrary to law.  Even so, the problem for Mr Thomas is to translate that circumstance into a foundation for the relief he seeks – namely, a declaration that the “Declaration of Public Safety Zones” of 1 October 2005 was itself, and as a consequence, unlawful and beyond power.  If he is to succeed, Mr Thomas must identify a relevant relationship between the declaration of the public safety zone in question and the authorisation of logging in the Iron Pipe coupe.

1. In my opinion, there is no link between the lawfulness of the authorisation to engage in timber harvesting operations and the lawfulness of a declaration of a public safety zone (or a multiplicity of such zones).  The two have quite different purposes.  An authorisation to engage in timber harvesting operations has as one of its principal objectives the advancement of sustainable timber harvesting in Victorian State forests.  A declaration of a public safety zone has as its legislatively prescribed objective the enhancement of public safety in such forests.  The question whether a particular authorisation to engage in timber harvesting was or was not lawful or within power has no bearing on whether or not the public will be endangered by those activities.  If, as the plaintiff concedes, the lawfulness of a declaration of a public safety zone cannot depend upon whether particular timber harvesting operations are conducted within the terms of their authorisation, neither can the lawfulness of such a declaration depend upon whether the authorisation was given after full compliance with all the necessary preconditions.

1. If it were otherwise, the results could be ridiculous.  It might, be for example, that at a particular site timber harvesting operations were being carried out without regard to the conditions laid down in the authorisation pursuant to which they were commenced.  Suppose that, as a result, the public was placed in unnecessary danger.  It would be contrary to the public interest, as Parliament conceives that interest, were a declaration of a public safety zone to be held invalid only because of some mistake in the granting of the authorisation to harvest. 

1. Another example may be helpful.  By s.4 of the Act, the Secretary may declare an area of State forest to be a public safety zone for all or any combination of a number of enumerated “purposes”.  One of these, as has been seen, is “timber harvesting operations”.  Another is “fire operations”.  A declaration may therefore be made to protect the public from the consequences of a combination of operations involving both timber harvesting and fire.  Again, it would be contrary to the public interest (as Parliament conceives it) were the declaration to be invalid simply because of a mistake in the granting of the authorisation to harvest timber.

1. It is for these reasons not open to a court – which in this area has no part to play in determining what is or what is not in the public interest – to declare that the declaration of an area of State forest as a public safety zone is unlawful or beyond power simply because the timber harvesting operations that (within the meaning of the Safety on Public Land Act) comprised its “purpose” or one of its “purposes” were not authorised in accordance with law.

1. I have already noted that the plaintiff seeks other declaratory relief – namely, a declaration that the authorisation of timber harvesting in the Iron Pipe Coupe was unlawful or beyond power.  Insofar as this is a separate head of relief, it does not impact upon the validity of the charges laid against the plaintiff under the Safety on Public Land Act.  No other interest is put forward by the plaintiff as placing him in any different position in this regard to that of an ordinary member of the public.  The plaintiff therefore does not have the requisite standing to obtain such relief.  Mr Thomas has such standing only insofar as he puts forward the proposition that the authorisation of timber harvesting in the Iron Pipe coupe was unlawful or beyond power, and that as a consequence the establishment of the relevant public safety zone was likewise unlawful.  But, for the reasons I have endeavoured to articulate, that conclusion does not follow.

1. In my opinion, the application by the defendant to strike out the further amended statement of claim as disclosing no cause of action should succeed.  I will order accordingly.

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