VicForests v Environment East Gippsland Inc

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0111
S EAPCI 2022 0112
S EAPCI 2023 0007
S EAPCI 2023 0008

VICFORESTS	Applicant/ Cross-respondent
v
ENVIRONMENT EAST GIPPSLAND INC & ANOR (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents/ Cross-applicants

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JUDGES:	EMERTON P, MACAULAY JA and KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 and 24 March 2023
DATE OF JUDGMENT:	27 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 159
JUDGMENT APPEALED FROM:	[2022] VSC 668 (Richards J)

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ENVIRONMENTAL LAW – Application for leave to appeal – Applicant harvested timber in Victoria’s State forests in East Gippsland and Central Highlands region – Primary judge found that applicant’s timber harvesting operations did not comply with regulatory requirements and threatened survival of native fauna – Judge granted prohibitory injunctions and declaratory relief – Whether applicant denied procedural fairness – Whether judge erred in construing ss 2.2.2.2 and 2.2.2.4 of the Code of Practice for Timber Production 2014 (as amended) – Precautionary principle – Whether necessary equity to attract injunctive relief established – Whether injunctions limited to what was necessary to avoid unlawfulness – Whether declarations and injunctions impermissibly imprecise and uncertain – Whether judge failed to give adequate reasons – Leave to appeal granted – Appeal dismissed.

ENVIRONMENTAL LAW – Application for leave to cross-appeal – Injunctions required applicant to conduct surveys and identify and address risks to gliders present in coupe at time of survey – Whether judge failed to consider risks affecting gliders proximate to but outside coupe at time of survey – Leave to cross-appeal refused.

Code of Practice for Timber Production 2014 (as amended), ss 2.2.2.2, 2.2.2.4 – Sustainable Forests (Timber) Act 2004, s 45.

Environment East Gippsland Inc v VicForests (2010) 30 VR 1 – Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704.

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Counsel
Applicant/ Cross-respondent:		Ms RM Doyle SC with Mr OM Ciolek and Ms H Douglas
Respondents/ Cross-applicants:		Mr J Korman with Dr K Weston-Scheuber
Solicitors
Applicant/ Cross-respondent:	Johnson Winter & Slattery
Respondents/ Cross-applicants:	Oakwood Legal

TABLE OF CONTENTS

Introduction

Regulatory framework

Reasons

Proposed grounds of appeal

Ground 1: Was there a breach of procedural fairness?

VicForests’ submissions

The issues

The relief sought by the respondents in pleadings and at trial

VicForests’ position on the pleadings at trial

The judge’s conclusions as to the terms of the injunctions

The forms of orders proposed by the parties

Analysis and conclusions

Ground 3: Did the primary judge err in construing section 2.2.2.2 of the Code?

Submissions

Analysis and conclusions

Ground 4: Did the primary judge err in construing section 2.2.2.4 of the Code?

Submissions

Analysis and conclusion

Ground 5: Were the injunctions limited to what was necessary to avoid unlawfulness?

Submissions

Analysis

Conclusion

Ground 2: Was the necessary equity to attract injunctive relief established?

Ground 6: Were the declarations and injunctions impermissibly imprecise and uncertain?

Submissions

Analysis

Conclusion

Ground 7: Did the primary judge fail to give adequate reasons?

Submissions

Analysis and conclusion

Cross-appeal: Did the primary judge fail to consider risks affecting gliders proximate to but outside the coupe?

Respondents’ submissions

VicForests’ submissions

Analysis and conclusion

Disposition

EMERTON P
MACAULAY JA
KAYE JA:

Introduction

Victoria’s forest estate comprises large tracts of public land reserved as State forest under the Forests Act 1958. Much of this State forest is found in eastern and north‑eastern Victoria, in East Gippsland and in the Central Highlands region.
These areas are inhabited by two species of gliding mammals, the southern greater glider or petauroides volans, and the yellow-bellied glider or petaurus australis.
The southern greater glider is one of three species of greater glider and the only one found in Victoria.[1] The southern greater glider glides between tree canopies and uses hollow-bearing trees for shelter and nesting. It has a relatively small ‘home range’.
[1]Environment East Gippsland Inc v VicForests (No 4) [2022] VSC 668, [78] (‘Liability Reasons’).
The southern greater glider is thought to be the most threatened species of greater glider and to have suffered the sharpest population declines. It is highly vulnerable to the impacts of logging.[2] At the time of the trial of this proceeding, the southern greater glider was classified as ‘vulnerable’ on the list of threatened species made under s 178 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’). On 5 July 2022, it was re-classified as ‘endangered’.[3]
[2]Liability Reasons, [81].
[3]Liability Reasons, [84].
The yellow-bellied glider is found in native eucalypt forests in eastern Australia. The range of movement of this species is more extensive than that of the greater glider. The main threats to its survival include loss and fragmentation of habitat, and loss of hollow‑bearing and feed trees.[4] At all relevant times, the yellow-bellied glider was classified as ‘vulnerable’ under the EPBC Act.[5]
[4]Liability Reasons, [87]–[88].
[5]Liability Reasons, [89].
The applicant, VicForests, is a business owned by the Victorian Government established by an Order in Council made under s 14 of the State Owned Enterprises Act 1992. Its function is the management and sale of timber resources from Victorian State forests on a commercial basis. It conducts timber harvesting operations in State forests in East Gippsland and the Central Highlands of Victoria.
Environment East Gippsland Inc (‘EEG’) and Kinglake Friends of the Forest Inc (‘KFF’) (collectively, the respondents) are incorporated associations which have been held to have a special interest in the preservation of forests in East Gippsland and the Central Highlands respectively.[6] They became concerned that VicForests’ timber harvesting operations in East Gippsland and the Central Highlands were threatening the survival of the greater glider and the yellow-bellied glider in those areas and have taken legal action to secure the protection of glider mammals in those areas.
[6]There is no dispute that EEG and KFF have standing in these proceedings: Environment East Gippsland Inc v VicForests (2010) 30 VR 1; VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143.
By writ filed on 11 May 2021, EEG commenced a proceeding against VicForests in the Supreme Court (‘East Gippsland proceeding’) seeking:
(a)declarations that VicForests is required to:
(i)identify gliders inhabiting coupes in the East Gippsland Forest Management Area (‘FMA’)[7] by conducting enhanced pre-harvest surveys;
(ii)address risks to identified gliders by taking certain management actions (such as implementing ‘exclusion areas’ and ‘appropriate buffers’); and
(b)injunctions restraining VicForests’ timber harvesting operations to prevent it from failing to comply with its obligations under the regulatory framework as those obligations apply to the conservation of the greater glider and the yellow‑bellied glider in the East Gippsland FMA.
[7]FMA means a territorial unit for planning and managing State forests in Victoria.
By writ filed on 9 November 2021, KFF commenced a proceeding seeking similar declaratory and injunctive relief in relation to the preservation of gliders in the Central Highlands (‘Kinglake proceeding’).
The East Gippsland and Kinglake proceedings were heard together by a judge in the Trial Division over seven days in May and June 2022.
At trial, VicForests adduced evidence about its timber harvesting operations from various witnesses.[8] The witnesses gave evidence that in a typical year, VicForests harvests approximately 2,500 hectares of State forest, 70 per cent of which is in the Central Highlands and 10 to 15 per cent in East Gippsland.[9] They explained the requirement for a ‘summary and retention plan’ to be prepared before harvesting in a coupe[10] can commence, and gave details about the harvesting systems used by VicForests. This includes ‘variable retention harvesting’, which means that a particular proportion of seed or habitat trees are retained depending upon the density of the forest.[11]
[8]VicForests’ witnesses included Monique Dawson (its Chief Executive Officer), James Gunn (its Manager of Forest Practices) and William Paul (its Director of Environmental Performance): Liability Reasons, [41].
[9]Liability Reasons, [43].
[10]Coupe means a specific area of State forest identified for the purposes of timber harvesting and regeneration in a timber release plan.
[11]Liability Reasons, [58]–[71].
In relation to protecting gliders, a baseline protective measure taken by VicForests is to observe the prescribed ‘habitat tree retention rates’.[12] VicForests’ practice is to retain 40 per cent of the basal area of eucalypts across a coupe if three or more greater gliders are detected per spotlight kilometre.[13] Additionally, in East Gippsland, where more than 10 greater gliders or five yellow-bellied gliders are detected in a spotlight kilometre, VicForests establishes protection areas as required by the relevant management standards.
[12]Liability Reasons, [165]. Table 12 of the Standards sets out, among other things, habitat tree retention rates for various types of forest. The Standards also provide guidance about the selection of habitat trees to be retained.
[13]Liability Reasons, [172].
VicForests adduced evidence about the measures that it takes for the detection of gliders.[14] To detect gliders, VicForests relies on pre-harvest spotlight surveys conducted by the Department of Environment, Land, Water and Planning (‘DELWP’) as well as spotlight and thermal imaging surveys carried out by its own staff and contractors. Spotlight surveying involves walking through a marked transect of suitable habitat looking for certain species with a spotlight and listening for aural detections. It is not the practice of either the DELWP or VicForests to survey an entire coupe.[15] VicForests adduced evidence about the feasibility of pre-harvest surveys having regard to operational costs, labour requirements and safety to risks to VicForests’ staff and contractors (which included poor visibility, falling limbs and fatigue).[16]
[14]Liability Reasons, [154].
[15]Liability Reasons, [7(3)], [156], [158], [160], [163].
[16]Liability Reasons, [272].
Both the respondents and VicForests adduced expert ecological evidence about the impact of timber harvesting on gliders and the measures required when planning for and harvesting timber in order to comply with the relevant regulatory requirements. The respondents adduced expert evidence from Associate Professor Grant Wardell-Johnson, and VicForests from Dr Benjamin Wagner. The experts provided separate reports and prepared a joint report. They gave their oral evidence concurrently, answering a series of questions formulated by the judge and agreed by the parties, and were cross‑examined by counsel. That evidence is discussed in detail below. Suffice to say that neither expert considered that VicForests, in conducting its timber harvesting operations, was complying with the relevant statutory requirements for the detection and conservation of the gliders.
On 4 November 2022, the judge delivered her reasons for judgment.[17] In summary, the judge found that the timber harvesting operations conducted by VicForests in both East Gippsland and the Central Highlands did not comply with the regulatory requirements and threatened the survival of the gliders. Her Honour proposed to make declarations reflecting her conclusions and to grant injunctions restraining VicForests from conducting timber harvesting operations in those areas unless certain measures were taken.
[17]See above n 1.
Following the delivery of the Liability Reasons, the judge invited the parties to submit a final form of orders, preferably by consent, based on those reasons.[18] The parties each submitted proposed orders together with written submissions. On 11 November 2022, her Honour heard argument on the proposed orders and subsequently made a set of final orders in each of the East Gippsland and Kinglake proceedings (together, the ‘Final Orders’). The Final Orders largely, but not exactly, give effect to the orders sought by the respondents in each proceeding.[19]
[18]Liability Reasons, [377]–[378], [393], [396].
[19]The Final Orders were subsequently varied pursuant to reasons published on 17 February 2023: Environment East Gippsland Inc v VicForests (No 6) [2023] VSC 60. The varied orders and related reasons are not the subject of the proceedings now before us.
Her Honour gave separate reasons for the form of the Final Orders.[20]
[20]Environment East Gippsland Inc v VicForests (No 5) [2022] VSC 707 (‘Reasons for Final Orders’).
The judge made declarations and injunctions which in substance restrained VicForests from conducting timber harvesting operations in any coupe in any of the relevant areas unless the coupe had first been surveyed using a reasonably practical method to detect any gliders that might be present in the coupe and identify their feed trees and hollow‑bearing trees. The conduct of timber harvesting operations in any coupe in which gliders were detected was restrained unless specified areas and riparian strips along all waterways in the coupe were excluded from harvesting and at least 60 per cent of the basal area of eucalypts in the harvested area of the coupe was retained.[21]
[21]The restraints imposed were subject to certain exclusions and VicForests was given liberty to apply to further expand the exclusions, if necessary, by reopening its case.
VicForests now seeks leave to appeal the decision and orders of the primary judge. The respondents also apply for leave to cross-appeal seeking additional injunctive relief.
For the reasons that follow, we would grant leave to appeal but dismiss the appeal. We would further refuse leave to the respondents to cross-appeal.

Regulatory framework

The regulation of timber harvesting in State forests occurs within a national policy framework that includes the EPBC Act and the Regional Forest Agreements Act 2002 (Cth). Victoria and the Commonwealth have entered into five Regional Forest Agreements (‘RFAs’), including the East Gippsland RFA and the Central Highlands RFA. In conducting timber harvesting operations under the RFAs, VicForests must comply with the provisions of the Sustainable Forests (Timber) Act 2004 (‘Timber Act’) and any relevant Code of Practice made under Pt 5 of the Conservation, Forests and Lands Act 1987 (‘CFL Act’).
The primary purpose of the Timber Act is to provide a framework for sustainable forest management and sustainable timber harvesting in State forests.[22] It provides that all timber resources in State forests are the property of the Crown and that that property may only pass from the Crown in accordance with the provisions of the Timber Act. Under s 13, the Minister for Agriculture may allocate timber to VicForests for the purposes of harvesting and selling timber resources.
[22]Timber Act s 1(a).
On 1 October 2013, the Minister made an order published in the Government Gazette by which property in timber was allocated and vested in VicForests (‘allocation order’). The allocation order has been amended from time to time, including on 24 April 2019. It specifies a number of conditions with which VicForests must comply, including compliance with any Code of Practice.
The Code of Practice with which this proceeding is concerned is the Code of Practice for Timber Production 2014 (as amended 2022) (‘Code’), which was made pursuant to Pt 5 of the CFL Act and incorporates the Management Standards and Procedures for timber harvesting operations in Victoria’s State forests (‘Standards’).
The Code and the Standards impose various obligations on VicForests that are directed to maintaining the biological diversity and ecological characteristics of native flora and fauna in the State forests in which it operates, which includes species listed under the EPBC Act (such as the greater glider and the yellow-bellied glider).
Section 1.2.1 of the Code explains the need for a code of practice for timber harvesting:
Maintaining the benefits to society provided by forest ecosystems depends on balancing community needs and concerns with careful stewardship and responsible management. The effective implementation of the Code helps to ensure that timber production is compatible with the conservation of the wide range of values associated with forests, and of any such values associated with land on which commercial plantation development is proposed.
The purpose of the Code is set out in s 1.2.2:
The purpose of the Code is to provide direction to the managing authority, harvesting entities and operators to deliver sound environmental performance when planning for and conducting commercial timber harvesting operations in a way that:
•permits an economically viable, internationally competitive, sustainable timber industry;
•is compatible with the conservation of the wide range of environmental, social and cultural values associated with forests;
•provides for the ecologically sustainable management of timber harvesting operations in native forests within State forests until 2030 when timber harvesting operations in native forests will cease;[23] and
•enhances public confidence in the management of timber production in Victoria’s forests and plantations.
[23]On 23 May 2023, between the hearing of the appeal and publication of these reasons, the Treasurer for Victoria, the Honourable Tim Pallas, announced that the Victorian State Government will bring forward the end of logging in native forests within State forests from 2030 to 1 January 2024.
The Glossary to the Code defines ‘timber harvesting operation’ to mean:[24]
[24]This definition is similar but not identical to the definition of ‘timber harvesting operations’ in s 3 of the Timber Act.
[A]ny of the following kinds of activities carried out by any person or body for the purposes of sale or processing and sale—
(a)felling or cutting of trees or parts of trees;
(b)taking or removing timber;
(c)delivering timber to a buyer or transporting timber to a place for collection by a buyer or sale to a buyer;
(d)any works, including road works, site preparation, planting and regeneration, ancillary to any of the activities referred to in paragraphs (a) to (c)—
but does not include—
(e)the collection or production of firewood for domestic use.
The Code applies to all timber harvesting operations unless expressly excluded. It is designed to cover ‘the planning and conducting of all commercial timber production and timber harvesting operations on both public land and private land in Victoria’.[25]
[25]The Code s 1.2.4.
The Code has three tiers:
(a)Code Principles: six broad outcomes that express the intent of the Code for each aspect of sustainable forest management;
(b)Operational Goals: the stated desired outcome or goal for each specific area of timber harvesting operations to meet the Code Principles; and
(c)Mandatory Actions: the actions to be conducted in order to achieve Operational Goals (which are supplemented by the Standards).[26]
[26]Standards cl 1.3.
The Operational Goals and Code Principles are set out in s 1.3. Table 1 in this section describes the relationship between the relevant Code Principle and Operational Goals, for the purpose of these proceedings, as follows:

Code Principles Operational Goals Section

Biological diversity and ecological characteristics of native flora and fauna within forests is maintained.
Timber harvesting operations in State forests specifically address biodiversity conservation risks and consider relevant scientific knowledge at all stages of planning and implementation.
… 2.2.2 and 3.2.2 Conservation of Biodiversity
…

Harvested native forest is managed to ensure that the forest is regenerated and the biodiversity of the native forest is perpetuated.
… 2.2.2 and 3.2.2 Conservation of Biodiversity
…

Section 1.3 also states:
Timber production must always be planned and conducted according to knowledge developed from research and management experience so as to achieve the intent of the Code Principles. Application of this knowledge will ensure that timber can continue to be utilised while ensuring that impacts on soil, water, biodiversity, forested landscapes, historic places and Aboriginal cultural heritage are avoided or minimised.
Chapter 2 of the Code governs timber harvesting operations in State forests.
Section 2.2 is concerned with environmental values in State forests, including native forests. The introduction to that section explains that timber harvesting in native forests ‘may have local impacts on environmental values such as water quality and biodiversity’ which can be minimised by ‘planning and management throughout the lifecycle of the timber harvesting operation’.
Environmental values include the conservation of biodiversity.[27] ‘Biodiversity’ is defined as follows:[28]
biodiversity means the variability among living organisms from all sources (including terrestrial, marine and other aquatic ecosystems) and includes—
(a) diversity within species and between species; and
(b) diversity of ecosystems.[29]
[27]The Code s 2.2.2.
[28]The Glossary to the Code states that ‘biodiversity’ has the same meaning as in the Flora and Fauna Guarantee Act 1988.
[29]Flora and Fauna Guarantee Act 1988 s 3(1) (definition of ‘biodiversity’).
Section 2.2 is titled ‘Conservation of Biodiversity’. This part of the Code is at the heart of these proceedings and begins by setting out several Operational Goals, the most relevant of which is this:
Timber harvesting operations in State forests specifically address biodiversity conservation risks and consider relevant scientific knowledge at all stages of planning and management.
Section 2.2 then prescribes various ‘mandatory actions’ which are directed to achieving that Operational Goal:
Addressing biodiversity conservation risks considering scientific knowledge
2.2.2.1Planning and management of timber harvesting operations must comply with relevant biodiversity conservation measures specified within the [Standards].
2.2.2.2The precautionary principle must be applied to the conservation of biodiversity values. The application of the precautionary principle will be consistent with relevant monitoring and research that has improved the understanding of the effects of forest management on forest ecology and conservation values.
Note: It is intended by the definition of the precautionary principle and section 2.2.2.2 that the precautionary principle and its application in section 2.2.2.2 be understood as it was by Osborn J in Environment East Gippsland Inc v VicForests [2010] VSC 335 (in relation to the precautionary principle as it appeared in the Code of Practice for Timber Production 2007).
2.2.2.3The advice of relevant experts and relevant research in conservation biology and flora and fauna management must be considered when planning and conducting timber harvesting operations.
2.2.2.4 During planning identify biodiversity values listed in the [Standards] prior to roading, harvesting, tending and regeneration. Address risks to these values through management actions consistent with the [Standards] such as appropriate location of coupe infrastructure, buffers, exclusion areas, protection areas, management areas, modified harvest timing, modified silvicultural techniques or retention of specific structural attributes.
2.2.2.5 Protect areas excluded from harvesting from the impacts of timber harvesting operations.
…
The ‘precautionary principle’ is defined in the Glossary to the Code as follows:
‘precautionary principle’ means that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, decisions by managing authorities, harvesting entities and operators must be guided by:
(i)careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(ii) an assessment of the risk-weighted consequences of various options.
Note: It is intended by the definition of the precautionary principle and section 2.2.2.2 that the precautionary principle and its application in section 2.2.2.2 be understood as it was by Osborn J in Environment East Gippsland Inc v VicForests [2010] VSC 335 (in relation to the precautionary principle as it appeared in the Code of Practice for Timber Production 2007).
Section 1.2.4 explains the role of the Standards and their relationship with the Code. It confirms that the Standards form part of the Code.[30] It states that the Standards are informed by policy documents and that they are consistent with the Operational Goals and Mandatory Actions set out in the Code. In particular, the Standards ‘provide detailed mandatory operational instructions, including region specific instructions for timber harvesting operations in Victoria’s State forests’.
[30]All references to the Code include references to the Standards. To the extent of any inconsistency between the two, the Code will prevail: The Code s 1.2.4A.
For the purpose of s 2.2.2.1 of the Code, the biodiversity conservation measures specified in the Standards include cl 4.2.1, which provides for ‘detection-based management’ of fauna and flora in any area that may be affected by current or planned timber harvesting operations. If, in that area, the presence of a ‘value’ listed in Table 13 of the Standards is identified, the managing authority must (among other things):
(a)notify the Secretary of the evidence and the location of the value; and
(b)‘apply and undertake any associated management action specified in the Table’ prior to commencing timber harvesting operations (or as soon as possible if operations have already commenced).
Table 13 prescribes specific management actions for rare or threatened fauna and invertebrates, including the greater glider and yellow-bellied glider. In the East Gippsland FMA (but not in the Central Highlands FMAs), certain management actions are prescribed for both species:

Species Name Value Applicable FMAs Management Actions

Greater glider
Petauroides
volans
Relative abundance
(More than 10 per
Spotlight Kilometre) East Gippsland FMA Apply a protection area of approximately 100 ha of suitable habitat where records report a relative abundance of more than 10 individuals per spotlight kilometre (equivalent to more than 2 individuals per hectare or more than 15 individuals per hour of spotlighting), or where substantial populations are located in isolated or unusual habitat.
Note: Assumed rate of spotlighting per kilometre is 100 mins per 1 km and visible range either side of transect for this species is 25 m, equating to assumed minimum survey area of 5 hectares.

Yellow-bellied glider

Petaurus australis
Relative abundance
(More than 5 per
Spotlight Kilometre) East Gippsland FMA
Otways FMA
Apply a protection area of approximately 100 ha of suitable habitat where records report a relative abundance of more than 5 individuals per spotlight kilometre (equivalent to more than 0.2 individuals per hectare or more than 7 individuals per hour of spotlighting), or where substantial populations are located in isolated or unusual habitat.

Note: Assumed rate of spotlighting per kilometre is 10 mins per 100 m and visible range either side of transect is 150 m, equating to assumed minimum survey area of 30 hectares.

Reasons

The judge recorded the parties’ submissions at trial. The respondents (as plaintiffs) submitted that that ss 2.2.2.2 and 2.2.2.4 of the Code require comprehensive pre-harvest surveys of a coupe scheduled for harvesting, in order to identify whether greater gliders and yellow-bellied gliders are present within the coupe and, if so, the location of the gliders’ home ranges. They further contended that ss 2.2.2.2 and 2.2.2.4 require VicForests to exclude an area of forest from harvesting around the location of each sighting of greater glider or yellow-bellied glider. In addition, EEG submitted that VicForests was not meeting its obligations under cl 4.2.1.3 of the Standards to apply a protection area of approximately 100 hectares of suitable habitat around certain populations of greater gliders and yellow-bellied gliders.
In response, VicForests denied that ss 2.2.2.2 and 2.2.2.4 of the Code had the meanings contended for by the respondents. VicForests argued that the precautionary principle in s 2.2.2.2 was not engaged in relation to greater gliders or yellow-bellied gliders, and that the measures it takes for the detection and protection of both were adequate. VicForests submitted that it correctly applied s 2.2.2.4 when planning timber harvesting operations in East Gippsland, and that s 2.2.2.4 had no application in the Central Highlands in relation to greater gliders or yellow-bellied gliders. In the East Gippsland proceeding, VicForests maintained that it met the obligations under cl 4.2.1.3 of the Standards. It further submitted that neither respondent had made out a case for relief, and that, in any event, relief should be refused on discretionary grounds.
Having regard to the arguments advanced and the evidence adduced at trial, the judge identified 15 issues for determination:
(1)What is the proper interpretation of s 2.2.2.2 of the Code?
(2)What is the proper interpretation of s 2.2.2.4 of the Code?
(3)What measures does VicForests take in its timber harvesting operations for the conservation of greater gliders?
(4)Is the precautionary principle engaged in relation to greater gliders?
(5)If so, is VicForests applying the precautionary principle to the protection of greater gliders?
(6)What measures does VicForests take in its timber harvesting operations for the conservation of yellow-bellied gliders?
(7)Is the precautionary principle engaged in relation to yellow-bellied gliders?
(8)If so, is VicForests applying the precautionary principle to the protection of yellow-bellied gliders?
(9)Is VicForests applying the precautionary principle to the detection of gliders?
(10)Is VicForests applying s 2.2.2.4 of the Code in East Gippsland?
(11)Is VicForests applying s 2.2.2.4 of the Code in the Central Highlands?
(12)In East Gippsland, is VicForests correctly applying cl 4.2.1.3 of the Standards?
(13)Is VicForests likely, absent an order of the Court, to apply cl 4.2.1.3 of the Standards incorrectly in future?
(14)Should injunctions be granted in the form sought by the respondents, or in some other form?
(15)Should declarations be made in the form sought by the respondents, or in some other form?
As to the proper construction of s 2.2.2.2 of the Code, the judge held that the precautionary principle involves two inquiries: (a) are there threats of serious or irreversible environmental damage; (b) about which there is a lack of scientific certainty? If the answer to both of those inquiries is ‘yes’, proportionate measures to prevent environmental degradation should not be postponed.[31]
[31]Liability Reasons, [7(1)].
As to s 2.2.2.4 of the Code, the judge held this to be a mandatory action requiring VicForests, during planning, to identify whether and where the biodiversity values listed in the first column of Table 13 of the Standards are present in a coupe before undertaking timber operations. The phrase ‘biodiversity values’ refers to things, including species of fauna and flora, that have value to biodiversity. Greater gliders and yellow-bellied gliders are biodiversity values for this purpose and where they are present in a coupe, VicForests must address risks to them by taking management actions consistent with the Standards. These actions may be in addition to the management actions prescribed in Table 13, where that is necessary to address risks to the species.[32]
[32]Liability Reasons, [7(2)].
The judge described the measures undertaken by VicForests in relation to the conservation of greater gliders. These measures included pre-harvest spotlight surveys conducted by the DELWP, in addition to spotlight surveys carried out by its own staff and contractors. Her Honour recorded that it was not the practice of either the DELWP or VicForests to survey an entire coupe; instead, transects approximately one kilometre in length are surveyed within a coupe and, where possible, VicForests conducts the surveys along an existing road or track. VicForests retains habitat trees, as required by cl 4.1.1.1 and Table 12 of the Standards, giving priority to hollow-bearing trees and to trees most likely to develop hollows in the short-term, and uses ‘variable retention harvesting’ as its preferred method of timber harvesting. In both East Gippsland the Central Highlands, VicForests retains 40 per cent of the basal area of eucalypts across each harvested coupe in which three or more greater gliders are detected per spotlight kilometre.[33]
[33]Liability Reasons, [7(3)].
Her Honour recorded that in East Gippsland, VicForests applies a protection area of approximately 100 hectares where a ‘relative abundance’ of greater gliders is detected, as required by cl 4.2.1.3 and Table 13 of the Standards. It does not do this in the Central Highlands, where there is no equivalent prescription.
The judge held that the precautionary principle was engaged in relation to greater gliders. The greater glider is at risk of extinction as a species and VicForests’ timber harvesting operations in East Gippsland and the Central Highlands present a threat of serious or irreversible harm to the greater glider as a species. Her Honour found that there is a lack of scientific certainty about the nature and extent of the threats to the species, including as to the effect of timber harvesting operations on the species.[34]
[34]Liability Reasons, [7(4)].
The judge concluded that VicForests did not apply the precautionary principle to the protection of greater gliders. The expert ecologists had recommended two alternative measures for providing the necessary protection:
(a) the retention of a circular area of approximately 18 hectares of suitable habitat centred on a confirmed glider sighting, but allowing for intensive timber harvesting outside of the exclusion area; or
(b)the retention of a smaller area of habitat of around three hectares corresponding to the home range of any greater glider detected within the coupe, along with the retention of at least 60 per cent of the basal area of the remainder of the coupe, protecting suitable habitat features such as hollow-bearing trees and feed trees.
Both approaches depended on maintaining connectivity between areas of suitable glider habitat, including by retaining riparian strips along waterways.
The judge found that VicForests does not currently take either of these approaches and that the actions taken by VicForests to conserve greater gliders detected within a coupe scheduled for harvest were inadequate and in many cases unlikely to be effective. The measures taken by VicForests were not consistent with relevant scientific research. In particular, variable retention harvesting was shown not to be effective to conserve greater glider populations in harvested coupes. Its impact is similar to clearfell harvesting. Her Honour concluded:
VicForests’ current approach falls well short of what the precautionary principle requires for the conservation of greater gliders. The ecological evidence was clear — greater gliders that live in coupes that are harvested in accordance with VicForests current practices will probably die as a result of the harvesting operations.[35]
[35]Liability Reasons, [7(5)].
Her Honour found that VicForests detects yellow-bellied gliders in East Gippsland in the same way that it detects greater gliders. It does not specifically survey for yellow‑bellied gliders in the Central Highlands. It retains habitat trees, giving priority to hollow-bearing trees and trees most likely to develop hollows in the short-term. Again, it uses variable retention harvesting as its preferred method of timber harvesting. In East Gippsland, but not in the Central Highlands, VicForests applies a protection area of approximately 100 hectares where a ‘relative abundance’ of yellow‑bellied gliders is detected, as required by cl 4.2.1.3 and Table 13 of the Standards.[36]
[36]Liability Reasons, [7(6)].
The judge held that the precautionary principle was engaged in relation to yellow‑bellied gliders for the same reasons that it was engaged for greater gliders. She also found that VicForests was not currently applying the precautionary principle to the protection of yellow-bellied gliders. The ecologists had recommended two alternative measures for protecting yellow-bellied gliders from the effects of timber harvesting operations in their habitat:
(a)the retention of a circular area of approximately 38 hectares of suitable habitat around a family group of three or more yellow-bellied gliders, allowing for intensive harvesting outside the retained area of habitat; or
(b)the identification and retention of the feed trees of yellow-bellied gliders as well as recruitment trees around each feed tree and hollow-bearing trees within a coupe and the retention of at least 60 per cent of the basal area in the harvested areas.
Again, both approaches depended on maintaining connectivity between areas of suitable glider habitat, including by retaining riparian strips along waterways.
The judge found that VicForests’ existing timber harvesting practices did not take either of these measures for the protection of yellow-bellied gliders and that the actions that VicForests does take, such as variable retention harvesting, were unlikely to be effective and were not supported by the relevant monitoring and research. Variable retention harvesting was not shown to be effective to conserve yellow-bellied gliders in harvested coupes and its impact was comparable to clearfell harvesting. Her Honour concluded:
The ecological evidence was that yellow-bellied gliders that live in coupes that are harvested in accordance with VicForests current practices will probably die as a result of the harvesting operation.[37]
[37]Liability Reasons, [7(8)].
Furthermore, the judge found that VicForests was not applying the precautionary principle in relation to the detection of gliders.[38] VicForests’ approach to detecting greater gliders and yellow-bellied gliders was considerably less than s 2.2.2.2 of the Code requires. In order to comply with the precautionary principle, VicForests had to survey the whole of any coupe proposed for harvest which might contain glider habitat and had do so using a survey method that was likely to detect any gliders that may be present in the coupe, so as to locate the gliders’ home range wherever practicable. Her Honour said:
This is necessary in order that their essential habitat can be excluded from timber harvesting operations, as the precautionary principle requires — in the case of greater gliders their home ranges and in the case of yellow-bellied gliders, their feed trees and hollow-bearing den-trees within the coupe.[39]
[38]Liability Reasons, [7(7)].
[39]Liability Reasons, [7(9)].

As to whether VicForests was applying s 2.2.2.4 of the Code in East Gippsland, her Honour concluded that VicForests did not meet its obligation to identify whether and where greater gliders and yellow-bellied gliders are present in the coupe when planning to harvest. The spotlight surveys upon which it relies leave most of the coupe unsurveyed and provide incomplete information about whether gliders are present and where their home range is located. Without knowing where the gliders are within the coupe, it is not possible for VicForests to take management actions to address risks to them.[40]
[40]Liability Reasons, [7(10)].
The judge reached the same conclusions in relation to VicForests’ application of s 2.2.2.4 of the Code in the Central Highlands.[41]
[41]Liability Reasons, [7(11)].
Finally, the judge concluded that VicForests was not correctly applying cl 4.2.1.3 of the Standards in East Gippsland, as required.[42] According to her Honour, the location, composition and shape of a protection area of approximately 100 hectares of ‘suitable habitat’ for a relative abundance of greater gliders or yellow-bellied gliders should be guided by the 10 principles agreed by the expert ecologists. VicForests had no criteria for determining whether a population of gliders detected was a ‘substantial population’ in ‘isolated habitat’ for the purposes of Table 13. The ecological evidence provided criteria for identifying a substantial population of gliders in isolated habitat, namely, at least 20 greater gliders within 100 hectares and at least two family groups of at least three yellow-bellied gliders within 100 hectares. Her Honour also found that based on the evidence of VicForests’ regional manager in East Gippsland, VicForests was likely to misapply cl 4.2.1.3 of the Standards in future, absent an order of the Court.
[42]Liability Reasons, [7(12)].
In the East Gippsland proceeding, the Final Orders took the form of both declarations and injunctions.
The declarations concerned the application of cl 4.1.2.3 of the Standards to substantial populations of gliders in isolated habitat. The declarations first required the designation of a protection area of 100 hectares of suitable habitat having regard to the Suitable Habitat principles (declaration 1).[43] The Suitable Habitat principles are environmental attributes to take into consideration when selecting and defining a protection area. Then, in relation to the greater glider, ‘a substantial population’ in ‘isolated habitat’ was declared to be (declaration 2):
at least 20 greater gliders located within 100 hectares of suitable habitat that is surrounded by at least 100 metres’ width of Hostile Habitat where any corridors of suitable habitat traversing the Hostile Habitat are less than 100 metres wide.
[43]The Suitable Habitat principles are detailed below at [247].
In relation to the yellow-bellied glider, ‘a substantial population’ in ‘isolated habitat’ was declared to be (declaration 3):
at least two family groups of at least three yellow-bellied gliders located within 100 hectares of suitable habitat that is surrounded by at least 100 metres width of Hostile Habitat where any corridors of suitable habitat traversing the Hostile Habitat are less than 100 metres wide.
The injunctions deal first with survey requirements (order 1) and then separately with greater gliders (order 2) and yellow bellied gliders (order 3). They are as follows:
1. VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA unless the coupe has been surveyed using a reasonably practicable survey method that is likely to:
(a)detect any greater gliders that may be present in the coupe and, so far as is reasonably practicable, locate their home ranges; and
(b)detect any yellow-bellied gliders that may be present in the coupe and identify their feed trees and hollow-bearing trees in the coupe.
This Order does not apply to a coupe that has been clear-felled since 1939.
2.VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA in which greater gliders have been detected unless:
(a)it excludes the greater gliders’ located home ranges from timber harvesting operations; and
(b)it excludes from timber harvesting riparian strips at least 100 metres wide located along all waterways in the coupe, with an exclusion area at least 50 metres wide on each side of those waterways; and
(c)it retains at least 60% of the basal area of eucalypts in the harvested area of the coupe.
3.VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA in which yellow-bellied gliders have been detected unless:
(a)it excludes from timber harvesting riparian strips at least 100 metres wide located along all waterways in the coupe, with an exclusion area at least 50 metres wide on each side of those waterways; and
(b)it retains at least 60% of the basal area of eucalypts in the harvested area of the coupe, including all identified feed trees and hollow-bearing trees within the coupe.
Further orders were made excluding certain activities from these restraints.
In the Kinglake proceeding, the Final Orders took the form of injunctions only. They were in the same form as the injunctions in the East Gippsland proceeding.

Proposed grounds of appeal

VicForests advances seven proposed grounds of appeal,[44] which contend that:
(a)the judge granted different relief to that which had been sought and argued about at trial, thereby denying VicForests procedural fairness (ground 1);
(b)in any event, the respondents had failed to establish the necessary equity to attract the injunctive relief granted (ground 2);
(c)the judge failed to properly construe the relevant provisions of the Code, resulting in a failure to limit the injunctions to what was necessary to secure compliance with the law (grounds 3, 4 and 5);
(d)in any event, the declarations made and injunctions granted were imprecise, uncertain, vague and evaluative (ground 6); and
(e)the judge failed to give adequate reasons (ground 7).
[44]For convenience, proposed grounds are referred to as ‘grounds’ throughout these reasons.
In oral argument, ground 2 was addressed as an aspect or consequence of the submissions advanced by VicForests in support of grounds 1 and 5. Accordingly, we shall defer considering ground 2 until we have determined ground 5.

Ground 1: Was there a breach of procedural fairness?

VicForests’ submissions

The submissions by VicForests, under ground 1, were directed to the three injunctive orders made by the trial judge. It was submitted that the injunctions went ‘far beyond’ the scope of the issues that were defined by the parties, and that, in making those orders, the judge determined issues which the parties had not identified before or during the trial.
In support of that submission, counsel noted that the respondents, at the trial, had claimed that ss 2.2.2.2 and/or 2.2.2.4 of the Code required VicForests, in every coupe in East Gippsland and the Central Highlands, first, to undertake specific kinds of surveys for greater gliders and yellow-bellied gliders, and, secondly, to apply specific timber harvesting exclusion areas around each point at which a member of those species had been detected. Counsel submitted that the respondents’ case was not that VicForests’ operations had fallen short of what was required by the Code generally, that is, measured against any other prescriptions which the Code may be held to require. Rather, it was submitted, the respondents had specified, in their respective prayers for final relief, and in the forms of orders provided to the judge, the specific injunctive relief sought by them.
Counsel for VicForests submitted that the trial focused on the issue whether the Code, properly construed, required those specific measures that were set out in the respondents’ prayer for relief. Counsel noted that in the course of the trial, counsel then acting for VicForests had specifically requested that the respondents provide minutes of the orders that they sought in the proceeding. During the trial, counsel for VicForests had made it clear that VicForests’ evidence and submissions were directed to meeting the case put by the respondents in support of their prayer for relief, and no other case.
It was further submitted that, ultimately, the evidence adduced at the trial did not support the relief that was sought by the respondents in their prayers for relief and in the forms of orders on which they relied in final address. Accordingly, the judge rejected the respondents’ claim for the injunctive relief sought by them, but her Honour nevertheless proceeded, impermissibly, to grant the respondents relief on a different basis. Counsel submitted that the judge proceeded in that manner, notwithstanding that counsel at the trial had contended that it would be unfair to do so. In that way, it was submitted, the judge erred by using the expert evidence in a manner which was wholly different to the way in which VicForests had understood that the evidence would be used against it. Consequently, VicForests did not have a proper opportunity to meet the case which was determined by the judge.
Counsel for VicForests further submitted that if VicForests had been aware that the judge intended to use the expert evidence in that way, VicForests could have conducted a different defence. In particular, the recommendations made by the experts would have been challenged, and evidence could have been adduced about the viability and proportionality of those recommendations. In addition, submissions could have been made as to whether the recommendations of the experts constituted measures required under the relevant provisions of the Code.
Respondents’ submissions
In response, counsel for the respondents submitted that VicForests was not denied procedural fairness in the formulation by the judge of the specific orders by which her Honour granted injunctive relief to the respondent. In particular, counsel noted that the relief that was granted by the first order had been sought by the respondents in their pleaded case, namely, that surveys be conducted that were no less effective than the protocol set out in the respondents’ pleadings. Further, it was submitted that the injunctive relief granted by the second and third orders was based on, and implemented, the approach that was recommended by Dr Wagner, the expert witness called on behalf of VicForests. In that respect, VicForests adduced a significant amount of evidence from Dr Wagner. In final address, counsel for VicForests had submitted that the judge should adopt the evidence given by Dr Wagner, in preference to the evidence given by the respondents’ expert, Associate Professor Wardell-Johnson, as to the appropriate steps which were required to be taken by VicForests under the provisions of the Code, to protect the greater glider and the yellow-bellied glider in conducting timber harvesting of native forests in East Gippsland and in the Central Highlands.
Counsel for the respondents further submitted that the primary case, made on behalf of the respondents (as plaintiffs) at the trial, was that VicForests should not conduct timber harvesting operations in those two areas in a manner that would be a breach of ss 2.2.2.2 and 2.2.2.4 of the Code. The evidence that was adduced in relation to those issues included the evidence of the two experts, Associate Professor Wardell-Johnson and Dr Wagner. That evidence was directed to the claim made by VicForests in its pleadings. It was submitted that the prayers for relief in the respective statements of claim do not strictly form part of the pleadings, and the Court is always entitled to mould the requisite equitable relief in a form other than that sought by a plaintiff. In that respect, it was submitted that at the trial, the respondents, in their final address, had specifically referred to the principle that, in a proceeding for injunctive relief, the Court should fashion the equitable relief in a manner which properly balances the interests of the parties, notwithstanding that the specific form of relief decided by the Court may not be that contended for by either party.
Counsel further submitted that, at the trial, VicForests made a specific strategic decision not to address the possibility that the judge might make an order in a form which is different to that sought by the respondents. In that respect, VicForests adopted an ‘all or nothing’ position, and accordingly, it was not denied procedural fairness. Instead, the judge, having determined the correct construction of ss 2.2.2.2 and 2.2.2.4 of the Code, applied the expert evidence adduced by the parties to the allegations that were pleaded in the respondents’ statements of claim, and concluded that VicForests’ existing detection methods failed, and would fail, to determine where the gliders were located, and its timber harvesting practices failed, and would fail, to take effective measures to address the risks that affected the gliders. On that basis, it was appropriate for the judge to order injunctive relief based on the evidence of Dr Wagner which had been adduced by and on behalf of VicForests.

The issues

The submissions by VicForests, under ground 1, in essence, contained three propositions, namely:
(1)By their pleadings, and in the forms of orders relied on in final address, the respondents sought specific forms of injunctive relief for the protection of the greater glider and the yellow-bellied glider.
(2)In the course of the proceeding, and in particular in final address, counsel for VicForests took the position that VicForests’ case was directed solely to the relief sought by the respondents, and not to any other form for such relief.
(3)The form of each of the three injunctions granted by the judge was significantly different to that sought by the respondents in their pleading and in the draft orders relied on, so that, by making such orders, the judge failed to accord VicForests procedural fairness in each of the two proceedings.
In order to analyse and determine the issues raised by those propositions, it is first necessary to set out, in a little detail, the relief sought by the respondents at the trial, the position adopted by VicForests at trial concerning the relief sought by the respondents, and the judge’s conclusions as to the form of the injunctive relief to be granted to the respondents.

The relief sought by the respondents in pleadings and at trial

In each proceeding, the statement of claim relied on by the respective respondent underwent a number of successive amendments. For the present purpose, it is not necessary to set out in detail the content of the pleading. In essence, the respondents pleaded that on the true construction of ss 2.2.2.2 and 2.2.2.4 of the Code, the management actions which were required to address glider risks were:
(a)For each sighting of a greater glider, an exclusion area with a circular radius of 240 metres centred on the location of the sighting (that is, 18 hectares), such area to be protected by appropriate buffers.
(b)For each sighting of at least three yellow-bellied gliders, an exclusion area of 38 hectares of suitable habitat for those gliders centred on them, such area to be protected by appropriate buffers.
In each proceeding, it was pleaded that VicForests had failed to take, or threatened not to take, management actions to address glider risks, by failing to apply those exclusion areas in respect of sightings of greater glider and yellow-bellied gliders respectively.
By way of relief in the East Gippsland proceeding, EEG sought (inter alia):
(a)An injunction restraining VicForests from carrying out timber harvesting operations in the affected coupes until VicForests had applied a protection area of 100 hectares of suitable habitat in respect of the arboreal mammals whose records or population in the coupe satisfied the 2021 detection criteria.[45]
(b)A permanent injunction restraining VicForests from carrying out timber harvesting operations in any coupe in East Gippsland without a pre-harvest survey being conducted in accordance with that specified in the pleading.
(c)A permanent injunction restraining VicForests from carrying out timber harvesting operations within a circular area of radius 240 metres from any greater glider sighting in East Gippsland.
(d)A permanent injunction restraining VicForests from carrying out timber harvesting operations in any coupe located in East Gippsland within a circular area of radius 350 metres from the approximate centre of any sighting of at least three yellow-bellied gliders within a 20 hectare area in East Gippsland.
[45]‘2021’ is a reference to the current Standards. The detection criteria for the greater glider and the yellow-bellied glider is specified in Table 13 of the Standards. For the greater glider, the assumed rate of spotlighting per kilometre is 100 minutes per 1 kilometre and visible range either side of the transect is 25 metres, equating to an assumed minimum survey area of 5 hectares. For the yellow-bellied glider, the assumed rate of spotlighting per kilometre is 10 minutes per 100 metres and visible range either side of the transect is 150 metres, equating to an assumed minimum survey area of 30 hectares.
By its prayer for relief in the pleading in the Kinglake proceeding, KFF sought the following injunctive relief:
(a)A permanent injunction restraining VicForests from carrying out timber harvesting operations in any coupe located in the Central Highlands without a pre-harvest survey being conducted in accordance with that specified in the pleading.
(b)A permanent injunction restraining VicForests from carrying out timber harvesting operations within a circular area of radius 240 metres from any greater glider sighting in the Central Highlands.
(c)A permanent injunction restraining VicForests from carrying out timber harvesting operations in any coupe in the Central Highlands within a circular area of radius 350 metres from the approximate centre of any sightings of at least three yellow-bellied gliders within a 20 hectare area.
In a document entitled ‘Proposed orders’ relied on by the respondents as part of their written closing submissions, they sought injunctions in similar terms to those specified in the prayer for relief in each proceeding. Specifically, the respondents sought orders as follows:
(1)VicForests must not conduct timber harvesting operations in any coupe unless surveys have been conducted to identify greater gliders and yellow-bellied gliders in the coupe (or in the coupe and the area 75 metres beyond the boundary of the coupe) in accordance with a ‘survey protocol’ that was annexure A to the draft orders.
(2)VicForests must not conduct timber harvesting operations within a circular area of radius 240 metres from any greater glider.
(3)VicForests must not conduct timber harvesting operations within a circular area of radius 360 metres from the approximate centre of any sighting of at least three yellow-bellied gliders within a 20 hectare area.

VicForests’ position on the pleadings at trial

As we have noted, VicForests has submitted that, in the course of the trial, its counsel ‘repeatedly’ requested to be provided with a minute of the order for the relief which the respondents sought in order that it be able to properly meet the case made by the respondents.
On 4 May 2022, at a pre-trial hearing before the judge, senior counsel for VicForests stated that VicForests would be assisted by the respondents providing a draft of the final orders sought by them in order to assist VicForests to understand more fully the case that it was required to meet. On 9 May, the first day of the trial, counsel for VicForests requested that the respondents, in the course of the trial, provide a proposed final minute of the orders sought by them in the event that the case which they were conducting was, in any relevant respect, different from the prayer for relief sought by them. On the following day, 10 May, senior counsel made the same point, stating that it would be valuable if, during the trial, the respondents were to provide a draft minute of the orders which they sought. Counsel noted that he had opened the case by submitting that it would not be possible for the judge to craft a final order for injunctive relief in respect of the pre-harvest surveys which should be conducted. Counsel further submitted that VicForests would be prejudiced if the final orders for relief sought by the respondents materially differed from the prayer for relief contained in the respective statements of claim.

The evidence in the proceeding closed on 16 May, and the trial was then adjourned to enable the parties and the judge to attend a view and the parties to exchange written closing submissions. Those submissions, which were detailed and lengthy, were exchanged between the parties in June, and the trial resumed for final addresses on 23 June.
On that date, counsel for the respondents commenced by presenting his final address, followed by senior counsel for VicForests.
At an early stage in his oral submissions, senior counsel for VicForests noted the manner in which the respondents’ case, in respect of surveys, had developed during the trial, and that the relief sought by the respondents in their pleading was that VicForests should be restrained (from undertaking timber harvesting) unless it first undertook surveys in accordance with a ‘survey protocol’ that was an appendix to the respondents’ pleading. Counsel for VicForests then noted that, in final address, counsel for the respondents had submitted that the judge should first make findings about the requisite surveys, and then invite the parties to be heard on relief. Senior counsel for VicForests stated:
It’s not the case they’ve run. It’s not the pleaded case they’ve run. It’s not the prayer for relief they’ve run. It’s not the way in which they asked questions of their experts and which we responsibly asked questions of ours …
In response, the judge noted that the respondents had specified a ‘highly prescriptive protocol’ in their draft orders, and that VicForests had expressed concern about the safety and practicability issues in complying with such a protocol. Her Honour then stated:
Now, it’s possible that I might agree with your client’s case on that second aspect but still hold a concern about the adequacy of the survey effort, that guides this decision-making about the protection areas that are applied in coupes that it is to harvest. Then, the question is, why would I not mould relief to meet the concern or the findings that I, in fact, make.
In response, senior counsel for VicForests submitted that the judge should only make findings that ‘speak to’ the relief sought by the respondents, and the judge should not have concerns if there are issues that are ‘unconnected’ with the relief sought by the respondents. Counsel further submitted that, ‘We’re not conducting an auction on the adequacies of surveys, we are coming to answer a case’.
The judge then responded that she considered that there are two aspects of the case, namely, what is to be achieved, and how it is to be achieved. Senior counsel for VicForests disagreed with that proposition and submitted that it would be unfair for the judge to do other than address the question whether to make the orders which were the subject of the prayer for relief sought by the respondents.
After further discussion to the same effect, the judge noted that the purpose of the proceedings was to protect the greater glider and the yellow-bellied glider in the areas which VicForests proposed to harvest. Her Honour asked, rhetorically, that if she considered that the orders proposed by the respondents were too prescriptive, why should she not make orders that were ‘more outcome focused and focused on the way in which the outcome is to be achieved’. In response, counsel for VicForests again submitted that such an approach by the judge would be unfair.

The judge’s conclusions as to the terms of the injunctions

In her reasons for judgment, the judge, having concluded that VicForests was not applying ss 2.2.2.2 and 2.2.2.4 of the Code in the Central Highlands and in East Gippsland, turned to the question of the relief that should be ordered. Her Honour said:
377.I propose to grant injunctions to the following effect, to reflect the conclusions I have reached in relation to Issues 5, 8, 9, 10 and 11:[46]
[46]The issues to which her Honour referred are extracted above at [44] and a summary of her Honour’s conclusions appear between [54]–[59].
(a)VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA/Central Highlands FMAs that may contain habitat for gliders, unless the coupe has been surveyed using a reasonably practicable survey method that is likely to:
(i)detect any greater gliders that may be present in the coupe and locate their home ranges; and
(ii)detect any yellow-bellied gliders that may be present in the coupe and identify their feed trees and hollow‑bearing trees in the coupe.
(b)VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA/Central Highlands FMAs in which greater gliders have been detected unless:
(i)it excludes the greater gliders’ home ranges from timber harvesting operations; and
(ii)it retains at least 60% of the basal area of eucalypts in the harvested area of the coupe.
(c)VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA/Central Highlands FMAs in which yellow-bellied gliders have been detected unless it retains at least 60% of the basal area of eucalypts in the harvested area of the coupe, including all identified feed trees and hollow-bearing trees within the coupe.[47]
[47]Liability Reasons, [377].
In reaching that conclusion, the judge noted that VicForests had taken an ‘all or nothing’ position in relation to the injunction sought by the respondents, maintaining that no injunction should be ordered unless the respondents had made out their case for injunctions in the form sought by them in the pleadings.[48] Her Honour rejected that position as a matter of law, noting that equitable remedies such as injunctions are ‘inherently flexible and can be fashioned to do practical justice between the parties’.[49] The judge also rejected the proposition that it would be unfair to VicForests to grant injunctions in a different form from those sought by the respondents. In that respect, she stated:
The plaintiffs’ pleaded case has never been primarily about the method by which VicForests should conduct spotlight surveys or the exact location and dimensions of areas it should exclude from harvesting for the protection of gliders. Their central claim is that VicForests should not log State forests in East Gippsland and the Central Highlands without complying with ss 2.2.2.2 and 2.2.2.4 of the Code in relation to greater gliders and yellow-bellied gliders. Their case throughout has been about the measures that VicForests is obliged by those provisions to take for the conservation of those two species in planning and conducting timber harvesting operations.
VicForests has had a full opportunity to meet that case. It presented detailed evidence about its surveying and timber harvesting practices, from witnesses including its Chief Executive Officer, Ms Dawson, its Manager Forest Practices, Mr Gunn, its Director Environmental Performance, Mr Paul, its Manager, Forest Conservation and Research, Mr Fitzpatrick, and its Regional Manager East Gippsland, Mr Lewis. It also presented expert evidence from Dr Wagner, a qualified and experienced ecologist of its own choosing. It made comprehensive written and oral submissions based on that evidence. The conclusions I have reached have taken all of that into account, and the injunctions I propose to grant are in large part based on Dr Wagner’s opinions.
I have given anxious consideration to the need for injunctive relief to be formulated in terms that give rise to ascertainable obligations. Both sides referred to a great deal of authority on this question, some of which emphasises the desirability of clarity and certainty in an injunction, and some of which reinforces the need for the remedy to be applied practically and with good sense, leaving room for some evaluative judgment. Ultimately, an injunction is a discretionary remedy that is to be shaped to the particular facts and circumstances of the case, and the extent to which the judgment has resolved the issues to which the injunction relates.[50]
[48]Liability Reasons, [380].
[49]Liability Reasons, [381].
[50]Liability Reasons, [383]–[385].
Having delivered the Liability Reasons, the judge then adjourned the matter to enable the parties to confer and attempt to agree on draft orders in each proceeding, and, in the absence of any such agreement, to file short submissions on the appropriate form of the orders to be made.

The forms of orders proposed by the parties

In accordance with that direction, the respondents in each proceeding formulated proposed orders that included proposed injunctions (inter alia) in the following form:
(a)VicForests not conduct timber harvesting operations in the East Gippsland and Central Highlands forestry management areas unless the coupe, together with an area extending 114 metres beyond the coupe boundaries, and any other coupe located wholly or partially within the area that extends 114 metres beyond the coupe boundaries, be surveyed using a reasonably practicable survey method that would be likely to detect any greater gliders, and any yellow-bellied gliders, and that would identify all yellow-bellied glider feed trees and all hollow-bearing trees, and an appropriate number of recruitment trees.
(b)VicForests not conduct timber harvesting operations in those forestry management areas if any greater gliders had been detected in the survey area unless for each greater glider detection, it excludes a circular area with a radius of 228 metres from the location of the detection, and it retains at least 60 per cent of the basal area of eucalypts in the harvested area of the coupe, evenly disbursed across the harvested area and including all identified hollow-bearing and appropriate number of recruitment trees.
(c)VicForests excludes from timber harvesting operations corridors of at least 100 metres wide connecting all protected areas within the coupe, at least one corridor at least 100 metres wide connecting a protected area to suitable glider habitats outside the harvested area of the coupe, and riparian strips at least 100 metres wide located along all waterways in the coupe.
(d)VicForests not conduct timber harvesting operations in any coupe in the forestry management areas if any yellow-bellied gliders have been detected in the coupe survey area unless it retains:
(i)at least 60 per cent of the basal area of eucalypts in the harvested area evenly disbursed across that area, including all identified yellow-bellied glider feed trees within the coupe, all identified hollow-bearing trees within the coupe, and an appropriate number of recruitment trees around the feed trees and hollow-bearing trees;
(ii)riparian strips of at least 100 metres wide located along all waterways in the coupe.
In response, VicForests, in its written submissions, commenced by formally opposing the grant of any relief in favour of the respondents. Under cover of that objection, it filed a proposed form of final orders which were relevantly similar (but not identical) to those ultimately ordered by the judge, and which also contained an additional order containing ‘carve-outs’, that provided that the orders do not restrain VicForests from a number of different specified activities within the affected coupes.
Following receipt of the written submissions, the judge pronounced the Final Orders,[51] and provided reasons explaining her reasons for those orders. Her Honour’s reasons, and the content of some of those orders, are the subject of the cross-application made on behalf of the respondents.

Analysis and conclusions

[51]See above [61]–[64].

The question which is raised by ground 1 is whether, by making final orders that were in a different form to those sought by the respondents, the judge failed to accord VicForests procedural fairness.
It is well accepted that, in order to afford a party its rights in respect of procedural fairness, that party must have had a reasonable opportunity to address the issues on which the court ultimately determines a case. Thus, where a court or tribunal is minded to make a decision against a party on a basis entirely different to that relied on by that party, it must give that party notice that it is considering whether to make such a determination, and a reasonable opportunity to address the issues raised by it.
In Seltsam Pty Ltd v Ghaleb,[52] Ipp JA (with whom Mason P agreed), having referred to a number of relevant authorities, stated the principle as follows:
These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis, he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.
A failure so to inform the parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might have produced a different result.[53]
[52][2005] NSWCA 208, [78].
[53]Ibid [78]–[79]. See also The Queen v Lewis (1988) 165 CLR 12, 17; [1988] HCA 24; Patorno v The Queen (1989) 166 CLR 466, 474 (Mason CJ, Brennan J); [1989] HCA 18; BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2006] WASCA 49, [33]–[38] (Le Miere J, Wheeler and Pullin JJ agreeing).
In addressing ground 1, it is important to keep in mind the central issues that were agitated in the trial, and the relationship between those issues and the injunctive orders made by the judge. For the reasons that follow, it is quite clear, both from an analysis of the principal issues in the case, and the manner in which they were addressed by the parties, that the key matters that were the subject of evidence and argument at the trial had a necessary and inextricable interconnection with the form of the injunctive relief granted by the judge. In short, the injunctive orders made by the judge were the consequence of her Honour’s examination of, and conclusions concerning, the evidence called by the parties, and the submissions made them, in respect of those issues.
In order to explain that conclusion, it is necessary to examine in some detail aspects of the evidence called in the trial, and the addresses that were made by the respective parties relating to them.
In essence, the fundamental issue in the trial was whether VicForests, in conducting its forestry harvesting operations in East Gippsland and the Central Highlands, would comply with the applicable statutory provisions, and in particular with ss 2.2.2.2 and 2.2.2.4 of the Code, concerning the preservation of the greater glider and the yellow‑bellied glider in each of those two areas. That question, in turn, involved an examination and analysis, first, of the steps and procedures taken by VicForests for the protection of the greater gliders and the yellow-bellied gliders in those areas, and, secondly, whether those steps were, and would be, sufficient to comply with the two provisions of the Code referred to.
In addressing the second question, the focus of the evidence, and submissions, at trial was on the steps which it would be necessary for VicForests to take in order to sufficiently comply with ss 2.2.2.2 and 2.2.2.4 of the Code. That issue was the subject of the evidence adduced by the respective parties from Associate Professor Wardell‑Johnson and Dr Wagner. A number of the questions that were addressed to those two expert witnesses, and the terms in which they were framed, were specifically directed to the question of what particular steps or processes were required to be undertaken to satisfy the precautionary principle, prescribed by s 2.2.2.2 of the Code, in relation to the conservation of the two species of gliders. The questions were similarly also directed to the steps that are necessary to address risks to the relevant biodiversity value listed in the Standards, as required by s 2.2.2.4 of the Code.
Associate Professor Wardell-Johnson and Dr Wagner were respectively briefed to address a number of questions formulated by the legal practitioners for each side. A number of those questions concerned matters, which were fundamental to the issues that the judge was required to address in determining the central issue in the case, namely, the appropriate steps which were required to be taken by VicForests in order to comply with ss 2.2.2.2 and 2.2.2.4 of the Code.[54]
[54]Our identification of ‘the central issue’ insofar as it concerns compliance with s 2.2.2.2 of the Code is a consequence of our conclusion, discussed in respect of ground 3 below, concerning the correct construction of that provision.
In particular, Associate Professor Wardell-Johnson was briefed to express an opinion about, and in turn, Dr Wagner was briefed to respond to the opinions so expressed by Associate Professor Wardell-Johnson, on the following questions:
•The appropriate survey methods to be applied in order to identify greater gliders and/or yellow-bellied gliders in coupes in the Central Highlands and East Gippsland.
•The actions that are required to be taken to address risks to yellow-bellied gliders identified in coupes in the Central Highlands or East Gippsland prior to commencement of timber harvesting operations in those coupes.
•The actions which are required to be taken to address risks to greater gliders identified in coupes in the Central Highlands or East Gippsland prior to commencement of timber harvesting operations in those coupes.
•Whether the conduct of timber harvesting in the Central Highlands and East Gippsland without surveys of the kind recommended (by the respective expert) for greater gliders, and/or without exclusion of timber harvesting operations from a circular area of radius 240 metres centred on any greater glider sighting, constituted a real threat of serious or irreversible damage to the environment.
•Whether VicForests’ proposed timber harvesting plan provides an effective method of preventing serious or irreversible damage to the environment as a result of its timber harvesting operations in the Rookery coupe[55] and addressing risks to greater gliders in the coupe.
•Whether the answer to that question would apply to all coupes in East Gippsland and the Central Highlands where Variable Retention No 1 (‘VR1’) methods and/or Variable Retention No 2 (‘VR2’) methods[56] and/or retention of 40 per cent of the basal area of the coupe were applied.
[55]A ‘coupe’ is a small area of forest that is harvested within a single operation. The experts were asked at trial about the likely effect of VicForests’ proposed harvesting plan on the glider population within a particular coupe known as the ‘Rookery’ coupe.
[56]Variable retention harvesting is the silvicultural method of retaining a certain percentage of trees which are categorised based on their particular attributes, including location and types of hollows. VR1 harvesting is usually used where the density of Type 1 habitat trees is between three and six per hectare. VR1 harvesting sees the retention of existing habitat trees and recruitment trees, with 10 or more trees per hectare retained across the harvest area. VR2 harvesting is typically used where the density of Type 1 habitat trees is between seven and nine per hectare. It involves higher levels of aggregated and dispersed retention across the coupe, indicatively retaining 20 or more trees per hectare across the harvest area. See Liability Reasons, [65]–[66].

Next, the judge found, on the evidence, that the applicant did not take either of the measures recommended by the expert ecologists, and thus concluded that the applicant was failing to apply the precautionary principle to the protection of greater gliders.[143]
[143]Liability Reasons, [223]–[228].
The judge then turned to the question of the application of the precautionary principle to yellow-bellied gliders. Her Honour again outlined the alternative measures advocated by the two expert ecologists, which could be taken to conserve that species.[144] Again, her Honour considered that the approach recommended by Dr Wagner was more proportionate, and therefore constituted the minimum measures required to be undertaken in order to ensure the appropriate application of the precautionary principle to yellow bellied gliders.[145] Finally, in that respect, the judge concluded that VicForests’ steps fell short of those advocated by Dr Wagner, and accordingly, it was not applying the precautionary principle to the conservation of yellow‑bellied Gliders in East Gippsland or the Central Highlands.[146]
[144]Liability Reasons, [247]–[252].
[145]Liability Reasons, [253].
[146]Liability Reasons, [254]–[257].
The judge then turned to the question of the surveys, which are required to be undertaken in order to detect gliders. Her Honour reviewed, in some detail, the opinions of the two expert witnesses as to the appropriate survey methods, which were required to be applied in order to sufficiently identify greater gliders and yellow-bellied gliders, in coupes in the Central Highlands and East Gippsland.[147] Having undertaken that review, her Honour concluded that the VicForests’ current approach to detecting greater gliders and yellow-bellied gliders was ‘considerably less’ than the precautionary principle required. Specifically, its practice of limiting the survey effort to a one kilometre transect in a coupe was inadequate, as it left most parts of a coupe unsurveyed. In those circumstances, it was not possible for VicForests to retain the habitat that was essential for the conservation of the gliders.[148]
[147]Liability Reasons, [263]–[268].
[148]Liability Reasons, [270].
The judge then considered the evidence concerning issues that were raised regarding the safety and feasibility of the survey methods proposed by the expert witnesses.[149] Having examined that evidence in some detail, the judge concluded that in order to apply the precautionary principle to the two species of gliders the applicant must survey the whole of any coupe proposed for harvest which may contain glider habitats, and that it must do so using a survey method that is likely to detect gliders present in the coupe.[150] The judge thus concluded that as VicForests did not survey all of the coupe before harvesting it did not comply with the requirements of the precautionary principle.[151]
[149]Liability Reasons, [272]–[294].
[150]Liability Reasons, [295].
[151]Liability Reasons, [295]–[296].
The judge then turned to the question as to whether VicForests was applying s 2.2.2.4 in East Gippsland and in the Central Highlands.[152] As we have discussed when considering ground 4, the judge construed s 2.2.2.4 to constitute a mandatory action that required more of VicForests than compliance with the prescriptions in clause 4.2.1 and Table 13 of the Standards. Her Honour held that the section required VicForests during planning, to identify whether, and where, the biodiversity values listed in the first column of Table 13 are present in a coupe, and where they are so present, to address risks to them by taking management actions consistent with the Standards.[153]
[152]Liability Reasons, [302].
[153]Liability Reasons, [152].
Based on her examination of the evidence to which she had referred when considering the application of the precautionary principle, the judge concluded that VicForests did not meet its obligations under s 2.2.2.4 in respect of the gliders in each of the two areas in question.[154]
[154]Liability Reasons, [304]–[308] (East Gippsland), [309]–[312] (Central Highlands).
It was based on those conclusions, and the evidence examined in doing so, that her Honour then addressed the question of the appropriate injunctive relief to be granted to the plaintiff in each proceeding. As discussed when considering ground 1, the judge concluded that the survey protocol and harvesting practices of VicForests, did not comply with its obligations under ss 2.2.2.2 and 2.2.2.4 of the Code. It was based predominantly on the evidence of Dr Wagner that the judge then proceeded to formulate the injunctive relief granted to the respondents.
From the foregoing review of the judge’s reasons, it is quite apparent that her Honour disclosed and explained the path by which she reached the conclusion that the measures undertaken by the applicant did not comply with the applicable provisions in the Code, and, further, by which she determined the minimum steps which VicForests is required to undertake in order to lawfully comply with those provisions. In particular, in conformity with the principles outlined by Meagher JA in Beale, and by Nettle JA in Hunter, the judge referred to the relevant evidence, made material findings and conclusions of fact in relation to it, and provided reasons for those findings. Specifically, in the context of ground 7, the judge, by reference to the evidence, and her conclusions concerning the evidence, explained how she concluded that the orders contained in the three injunctions were directed to ensuring that VicForests took the minimum steps requisite in order to comply with ss 2.2.2.2 and 2.2.2.4 of the Code.
It is in that context that we now turn to consider the four specific points relied on by VicForests in support of ground 7.
In respect of the first point raised by VicForests, it was not for the judge to surmise as to any other possible measures which might be undertaken by VicForests in compliance with the Code. The judge’s role was to determine the issues, based on the evidence that was adduced by the parties during the trial. As we have discussed, the judge carefully assessed the evidence, and in particular the expert evidence, that was adduced in relation to those aspects of the case, and by doing so, determined the minimum steps which were required to be undertaken by VicForests in order to comply with ss 2.2.2.2 and 2.2.2.4 of the Code.
Further, it is quite evident that in view of the judge’s construction of ss 2.2.2.2 and 2.2.2.4 respectively, it is unsurprising that in a particular case it may be possible to identify the minimum steps required to be undertaken by VicForests in order to comply with both of those two provisions. As we have noted, ss 2.2.2.2 and 2.2.2.4 are each part of a number of sub-provisions contained in Part 2.2.2 of the Code, which are addressed to the same Operational Goal — the specification of mandatory actions to address biodiversity conservation risks taking into account relevant scientific knowledge. Sections 2.2.2.2 and 2.2.2.4 are each expressly addressed to the conservation of biodiversity values by the identification of those values and of threats of serious or irreversible environmental damage to them, and as to the steps to be taken, consistent with the avoidance, where practicable, of serious or irreversible damage to them. Section 2.2.2.4 does not inflexibly require management actions prescribed in the Standards. Rather, the actions which must be taken are to be ‘consistent with’ those standards and procedures. As the foregoing summary of the judge’s reasons demonstrates, her Honour, in some detail, adequately exposed her reasons for concluding that the injunctions which she formulated were necessary to ensure compliance with each of those two interrelated provisions and with the purpose to which they were directed.
Finally, it is apparent that the judge was cognisant of the submission advanced by VicForests that there may need to be some flexibility in prescribing the appropriate protocol for surveying each coupe.[155] The general terms, in which the first injunction was formulated, clearly caters for that proposition. In particular, the judge concluded that, although the survey protocol propounded by the plaintiffs was an effective way to detect and locate gliders within a coupe, it may not be the only effective way to do so. Her Honour noted:
The selection and spacing of the transects to be walked during spotlight surveys will depend on the shape, topography and other characteristics of each coupe. As Associate Professor Wardle-Johnson observed, the precise survey method does not matter so long as the entire coupe is surveyed.[156]
[155]See, eg, Liability Reasons, [300].
[156]Liability Reasons, [271].
For those reasons, the applicant has failed to demonstrate that the reasons provided by the judge were inadequate. On the contrary, her Honour’s reasons were commendably thorough and detailed, and clearly demonstrated the path by which she concluded that the respondents were entitled to the injunctive relief that was the subject of the orders.
Accordingly, ground 7 must fail.

Cross-appeal: Did the primary judge fail to consider risks affecting gliders proximate to but outside the coupe?

In each of the two proceedings, the respondents,[157] by way of cross-application, rely on one proposed ground of appeal, namely:
The trial judge failed to take account of the risk affecting greater gliders and yellow-bellied gliders located proximate to but outside a coupe at the time the coupe was surveyed.
[157]For convenience, these reasons continue to adopt the terms ‘respondents’ instead of ‘cross-applicants’ for EEG and KFF.
Under that ground, the respondents seek orders which would materially enlarge the scope of the relief ordered by the judge. In effect, the respondents seek in each proceeding orders that extend the areas which VicForests is required to survey, and to which the injunctions apply, in two alternative ways.
First, the respondents seek orders expanding the area that VicForests is required to survey to an ‘additional survey area’ encompassing an area that extends 250 metres from the coupe boundaries, together with any other coupe that is located wholly or partially within that additional area. The respondents further seek orders extending the area in which VicForests is restricted in conducting its timber harvesting operations, to include that ‘additional survey area’.
Alternatively, the respondents seek orders extending the survey that VicForests is required to undertake to include one which is likely to detect any gliders whose home range may extend into the coupe. Further, the respondents seek to extend the injunctions to extend the area in which restrictions apply to timber harvesting to include coupes in which gliders’ home ranges or a part thereof may be located.
Thus, in the East Gippsland proceeding, EEG, by way of its first alternative, seeks the following orders in lieu of those made by her Honour:
(1)VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe or in any ‘additional survey area’ (defined as an area that extends 250 metres from the coupe boundaries and any other coupe that is located wholly or partially within the area that extends 250 metres from the coupe boundaries) unless the coupe and that additional survey area have been surveyed using a reasonably practicable survey method that is likely to:
(b)detect any gliders that may be present in the coupe or in the additional survey area and, so far as reasonably practicable, locate their home ranges; and
(c)detect any yellow-bellied gliders that may be present in the coupe and the additional survey area and identify their feed trees and hollow-bearing trees in the coupe.
(2)VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA in which greater gliders have been detected or if any greater gliders have been detected in the coupe’s additional survey area unless:
(a)it excludes the greater glider’s located home ranges from timber harvesting operations; and
(b)it excludes from timber harvesting riparian strips at least 100 metres wide located along all waterways in the coupe, with an exclusion area of at least 50 metres wide on each side of those waterways; and
(c)it retains at least 60 per cent of the basal area of eucalypts in the harvested area of the coupe.
(3)VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA in which yellow-bellied gliders have been detected, or if any yellow-bellied gliders have been detected in the coupe’s additional survey area, unless:
(d)it excludes from timber harvesting riparian strips at least 100 metres wide located along all waterway in the coupe, with an exclusion area of at least 50 metres wide on each side of those waterways; and
(e)it retains at least 60 per cent of the basal area of eucalypts in the harvest area of the coupe, including all identified feed trees and hollow-bearing trees within the coupe.
Alternatively, in the East Gippsland proceeding, EEG, seeks, in lieu of the orders made by the judge, the following orders:
(1)VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA unless surveys have been conducted using a reasonably practicable survey method that is likely to:
(b)detect any greater gliders that may be present in the coupe and any greater gliders whose home range may extend into the coupe and, so far as it is reasonably practicable, locate their home ranges; and
(c)detect any yellow-bellied gliders that may be present in the coupe and any yellow-bellied gliders whose home range may extend into the coupe and identify their feed trees and hollow-bearing trees in the coupe.
(2)VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA in which greater gliders have been detected or in which greater gliders’ home ranges or a part thereof may be located unless:
(a)it excludes the greater glider’s located home ranges from timber harvesting operations; and
(b)it excludes from timber harvesting riparian strips at least 100 metres wide located along all waterways in the coupe, with an exclusion area of at least 50 metres wide on each side of those waterways; and
(c)it retains at least 60 per cent of the basal area of eucalypts in the harvested area of the coupe.
(3)VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA in which yellow-bellied gliders have been detected or in which yellow-bellied gliders’ home ranges or a part thereof may be located unless:
(a)it excludes from timber harvesting riparian strips at least 100 metres wide located along all waterway in the coupe, with an exclusion area of at least 50 metres wide on each side of those waterways; and
(b)it retains at least 60 per cent of the basal area of eucalypts in the harvest area of the coupe, including all identified feed trees and hollow-bearing trees within the coupe.
In the Kinglake proceeding, KFF seeks orders to the same effect.

Respondents’ submissions

In their joint written case, the respondents submitted that the evidence at the trial demonstrated that VicForests’ timber harvesting operations create risks for gliders which are detected beyond the boundary of the coupes in which the foresting operations are to take place. Counsel noted that the proven home ranges of the greater glider and of the yellow-bellied glider are such that either species may be affected by logging within the coupe if that glider, at the time the survey is conducted, is located outside the coupe. The respondents further noted that, in final address in the trial, it was submitted that the relief ordered by the judge should include an order that an area surrounding each coupe be surveyed, and orders addressing the risks to gliders which have been detected outside the particular coupe. Counsel noted that the judge, in her reasons for the formulation of final orders, recognised that parts of the forest adjacent to a coupe should be surveyed.[158] However, the Final Orders did not require surveys to be conducted outside the coupe. Further, it was submitted the protective measures contained in the orders restricting forestry operations within the particular coupe, failed to take account of the need to protect gliders located proximate to, but outside, a coupe at the time the survey was conducted.
[158]Reasons for Final Orders, [14].
In oral submissions, counsel for the respondents identified the specific basis upon which it was submitted that the judge had erred in the formulation of the Final Orders. In effect, it was submitted that the judge made a ‘House v The King’[159] error in failing to take into account the issue relating to the detection and protection of gliders who are outside a coupe, but whose home range might extend into the coupe. Alternatively, it was submitted, insofar that the judge did take that factor into account, her Honour failed to give sufficient weight to it, and by doing so, erred in the exercise of the discretion in the formulation of the injunctive relief afforded to the respondents. In that respect, counsel relied on the expanded form of the House v The King principle as discussed by Kitto J in Australian Coal and Shale Employees Federation & Anor v The Commonwealth & Ors[160] and by the Full Court of the Federal Court in its recent decision in Shepherd v Watt.[161]

VicForests’ submissions

[159](1936) 55 CLR 499.

[160](1953) 94 CLR 621, 627.

[161][2022] FCAFC 78, [58]–[70] (Greenwood, Burley and Halley JJ) (‘Shepherd’).

Senior counsel for VicForests, in effect, made two principal points in response to the submissions made on behalf of the respondents.
First, counsel submitted that the arguments advanced on behalf of the respondents were based on an unstated premise, namely, that the judge had erred in failing to find that ss 2.2.2.2 and/or 2.2.2.4 of the Code required VicForests to undertake surveys beyond the coupe area in order to detect gliders who were outside the coupe areas but whose home ranges might extend into the coupe. Counsel submitted that that underlying premise to the arguments advanced on behalf of the respondents in support of the cross-application is not the subject of a specific ground of appeal in their notice of cross-application for leave to appeal.
Secondly, counsel for VicForests noted that the relief now sought by the respondents in the cross-appeal extends well beyond the relief which they sought in their pleadings and at trial. In particular, in the statement of claim in each proceeding, the respondents had each pleaded that, on the correct construction of ss 2.2.2.2 and/or 2.2.2.4 of the Code, VicForests was required to conduct surveys to identify greater gliders and yellow-bellied gliders inhabiting each coupe and the area 75 metres beyond the boundary of the coupe in order to address risks to those gliders in, and in the vicinity of, the coupe. That pleading, and that point, were the subject of the findings made by the judge in her primary reasons. Following delivery of the Liability Reasons, the respondents, in their submissions as to the final form of orders pronounced, departed from their pleading, and contended that the two provisions of the Code required surveys to be conducted 114 metres beyond the boundary of each coupe, as well as the entirety of any other coupe that was located wholly or partially within that area of 114 metres beyond the coupe boundaries.

Counsel for VicForests further noted that in the cross-application, the respondents have now contended that ss 2.2.2.2 and/or 2.2.2.4 of the Code require surveys to be conducted 250 metres beyond the boundary of each coupe. Further, as a new alternative, the respondents contend that the survey should be directed to detect any glider outside the coupe but whose home range might extend inside the coupe. VicForests submitted that the respondents should be held to their pleaded cases and the cases that were the subject of their final addresses before the judge, in respect of which the judge made the fundamental findings which were the bases, ultimately, for the forms of relief which her Honour ordered.

Analysis and conclusion

For the reasons that follow, both points made by VicForests in response to the cross‑appeal are correct, and the application by the respondents to cross-appeal the orders made by the judge must fail.
In essence, the orders made by the judge, which are the subject of the cross‑application, were based on conclusions that her Honour reached in respect of specific issues that were the subject of the pleadings in the trial. The judge’s conclusions concerning those issues are not the subject of any ground of appeal in the cross-application for leave to appeal, and, in essence, the respondents have not sought to impugn them.
In order to analyse the point relied on by the respondents on the cross‑application, it is necessary to return to the issues that were defined and framed by the pleadings, and which were the subject of the substantive conclusions formed by the judge in her reasons. In each proceeding, the respondents’ respective statements of claim underwent a number of amendments. The final edition of the pleading, in each proceeding, was that on the true construction of ss 2.2.2.2 and 2.2.2.4 of the Code, the following were required:
(a)Surveys to identify gliders in each coupe and in the area of 75 metres beyond the boundary of the coupe in order to address risks to gliders in, and in the vicinity of, the coupe.
(b)For each sighting of a greater glider, there be an exclusion area or other management action applied to exclude timber harvesting operations from a circular area of radius 240 metres centred on the location of the greater glider sighting (18 hectares).
(c)For each sighting of at least three yellow-bellied gliders within a 20 hectare area, there be an exclusion area or other management area applied to exclude timber harvesting operations from 38 hectares of suitable habitat for the yellow-bellied gliders centred on them, such area to be protected by appropriate buffers.
In each proceeding, the prayers for relief in the respective statements of claim sought declarations and injunctions which reflected those three requirements.
In final address, and in the written submissions before the judge, the respondents’ counsel specifically addressed the form of relief sought in the pleading. The respondents’ submissions on the issue of surveys focused principally on the kind of surveys which were required to comply with ss 2.2.2.2 and 2.2.2.4 of the Code, and the practicability of the surveys that were recommended by the respondents’ expert, Associate Professor Wardell-Johnson. Similarly, the submissions by the respondents, concerning the dimensions and locations of the required protection areas, were substantially based on the expert evidence given by Associate Professor Wardell‑Johnson and Dr Wagner. Only passing reference was made, in the submissions, to the question whether the survey area, and any exclusion area, should extend beyond the coupe that was to be the subject of the foresting operations.
It was in that context that the judge, in the Reasons, determined the issues that had been addressed by the parties. Her Honour concluded that, in order to apply the precautionary principle to the conservation of greater gliders and yellow-bellied gliders, VicForests must survey the ‘whole of any coupe’ that is proposed for harvesting which may contain glider habitat, and that it must do so using a survey method that is likely to detect any gliders that may be present ‘in the coupe’ in order to locate the gliders’ home ranges wherever practicable.[162] The judge considered that the survey protocol proposed by the respondents was an effective survey method, but it was not the only effective way to detect and locate gliders ‘within a coupe’.[163] In considering the form of injunction which should be ordered, the judge concluded that it should not be in the terms sought by the respondents, because, in particular, her Honour did not consider that the respondents’ survey protocol was appropriate for inclusion in such an order.[164]
[162]Liability Reasons, [295].
[163]Liability Reasons, [297]–[298].
[164]Liability Reasons, [376].
In a similar way, in conformity with the issues framed by the pleadings, the judge addressed the differing views, respectively expressed by Associate Professor Wardell‑Johnson and Dr Wagner, for preserving sufficient habitat of the greater gliders and yellow-bellied gliders in order to ensure their continued survival. The judge noted the evidence of Dr Wagner, which differed from the evidence of Associate Professor Wardell-Johnson, as to the steps that were necessary to protect those two species of gliders. In the case of each of the two species of gliders, the judge preferred the steps advocated by Dr Wagner as being more proportionate in achieving protection of those two species consistently with the precautionary principle in s 2.2.2.2 of the Code.[165] The judge concluded that the respondents were entitled to injunctions in the terms that we have quoted earlier in these reasons.[166]
[165]Liability Reasons, [26], [221]–[222], [252]–[253].
[166]Liability Reasons, [377].
Specifically, as we have earlier noted, the judge’s formulation of those orders was based substantially on the evidence given by Dr Wagner, and in particular, Dr Wagner’s opinion that, in order to provide sufficient protection for the two species of gliders, it was necessary to retain at least 60 per cent of the basal area within the harvested area of the coupe. Relevantly, in the context of the ground of cross‑appeal, Dr Wagner’s opinion, as identified by the judge in the Reasons, did not extend to identifying or protecting gliders outside the harvested area of the coupe.
The findings that were so made by the judge in her Reasons were the necessary basis for the relief contained in the orders that she subsequently pronounced. In providing the parties with the opportunity to make submissions concerning the orders which should be pronounced, the judge properly and correctly sought submissions in respect of orders which would ‘give effect to [her] conclusions’, taking the proposed orders, expressed by the judge in the Reasons, as the ‘starting point’.[167]
[167]Liability Reasons, [378].
That approach by the judge was, of course, entirely orthodox and appropriate. As we have discussed, in the Reasons the judge made particular findings and reached particular conclusions concerning the steps and processes that were necessary in order that VicForests comply with ss 2.2.2.2 and 2.2.2.4 of the Code. It was those findings and conclusions that were the proper basis for any relief which the judge ultimately awarded. The process that followed, and in particular the opportunity for the parties to address and make submissions concerning the precise formulation of the relief to be the subject of the judge’s final orders, was not an opportunity for the parties to range beyond the ambit of the issues that they had defined and framed in their pleadings and which had been determined by the judge.
In the present cross-application, the respondents have not sought to rely on any ground of appeal that the judge erred in determining that VicForests was required to apply the steps described by Dr Wagner in order to comply with the precautionary principle in s 2.2.2.2 of the Code. It was not put by counsel for the respondents that the judge erred in failing to conclude that, in order to comply with ss 2.2.2.2 and 2.2.2.4 of the Code, VicForests was required to conduct surveys outside the coupe, whether in the ‘additional survey area’ (be it 75 metres, 114 metres or 250 metres) contended for by the respondents, or to conduct surveys to detect gliders who might be outside the coupe, but whose ranges might extend into the coupe that was to be the subject of timber harvesting operations. Nor was it put by way of cross-appeal that the judge erred in failing to conclude that those provisions of the Code required that VicForests be restricted in harvesting areas that extended into the ‘additional survey area’, or alternatively that those provisions required that VicForests be restricted from engaging in timber harvesting operations in coupes into which the home ranges of gliders (detected outside the particular coupe) might extend.
As we have noted earlier in these reasons, following the delivery of the Liability Reasons, the respondents in each proceeding made submissions by which they proposed orders which in effect would require VicForests to survey the coupe, together with an area extending 114 metres beyond the coupe boundaries, and (in addition) any other coupe located wholly or partially within that area of 114 metres beyond the coupe boundary. The orders proposed by the respondents sought an injunction restraining VicForests from conducting timber harvesting operations unless it excluded a circular area with a radius of 228 metres from the location of the detection of any greater glider in any of those areas, and unless it also retained at least 60 per cent of the basal area of eucalypts in the harvested area.
A number of points may be immediately noted concerning the proposed orders so sought by the respondents.
First, the boundary area of 114 metres exceeded the area sought in the respondents’ statements of claim (75 meters).
Secondly, as discussed, the judge did not make any express conclusion or finding to the effect that such additional area should be surveyed, or should be the subject of any timber harvesting restriction of the kind that the judge determined should be applied to the actual coupe areas.
Thirdly, in the Reasons, the judge specifically made a finding that it was not necessary to exclude timber harvesting within a radius of 228 metres from the location of any greater glider.
Fourthly, the proposed orders introduced an entirely novel aspect into the respondents’ claim, namely, that the survey area (and thus the area which would be the subject of restricted harvesting) be extended to any other coupe the boundaries of which at any point intersected with the extended boundary of 114 metres proposed by the respondents. In their statements of claim, the respondents had not pleaded that the relevant provisions of the Code required VicForests to survey any such additional coupe area, or to implement any restricted forms of harvesting in them. For that reason, the judge did not make any finding to that effect, which could form the basis of that additional component of relief sought by the respondents.
In her reasons relating to the relief to be ordered, the judge noted that the form of injunctions, proposed by the respondents, sought to reintroduce a prescriptive approach in the two ways mentioned.[168] The judge noted that in support of that approach, the respondents had submitted that a survey only provides a snapshot of where a glider happens to be on the night of the survey, but that it is not possible to tell where the glider is within its home range at the time of the survey. Accordingly, the respondents preferred to quantify, in a prescriptive manner, the area to be protected.
[168]Reasons for Final Orders, [12].
The judge, having thus outlined the respondents’ position, concluded:
I did not share that preference. The ecologists agreed that knowledge of where in a coupe greater gliders occur is required to adequately plan for habitat retention and silvicultural regimes at the coupe level. They were clear that survey efforts could and should be directed to finding out where gliders live within a coupe. It is this objective that should guide VicForests in deciding what parts of the forest in and adjacent to a coupe should be surveyed when planning to harvest the coupe. Once those surveys have been done, observations of greater gliders made during the surveys can be combined with the scientific understanding of the average size of their home range to make an assessment of the likely location of a greater glider’s home range within the coupe. That assessment is best made based on the actual survey observations, and the particular characteristics of the coupe and its surrounds.[169]
[169]Reasons for Final Orders, [14] (emphasis added).
As we have discussed, it was not necessary for the judge to give reasons for rejecting the respondents’ proposed form of injunctive relief, other than to note that that form was not based on, and was indeed contrary to, the judge’s conclusions in the Reasons. Further, and in any event, the reasons given by the judge for rejecting the form of injunction proposed by the respondents were unimpeachable. Consistently with her Honour’s findings in the Reasons, the judge rejected the prescriptive approach contended for on behalf of the respondents, and provided for appropriate surveys to be conducted within the coupe area in question. The respondents have not been able to identify or substantiate any error contained in that reasoning by her Honour.
Finally, it must be observed — and indeed was conceded by the respondents in their written case — that the relief now sought by them, on the cross-appeal, is different and more substantial than the relief that was the subject of the respondents’ respective statements of claim, and that which was sought by the respondents after the delivery of her Honour’s Reasons for judgment. First, the respondents now seek an additional survey area with a radius of 250 metres around the affected coupe. Secondly, by way of alternative, the respondents seek surveys to be conducted outside the coupe area, but which are likely to detect any glider, who at the time of survey was physically located outside the coupe, but whose home range could extend into the coupe. That alternative form of survey was not the subject of any pleading, any submission to the judge in final address, or any submission to the judge on the question of the orders to be made by way of final relief after delivery of the reasons for judgment. It is entirely novel. Further, it was not based on any finding of fact or conclusion by the judge in the Reasons.
As we have discussed, in their submissions to this Court, the respondents contended that the judge, by not making orders in the form now sought, failed to give any, or any adequate, weight to the need to protect the habitat of gliders, who, at the time of survey, may be outside the coupe boundaries, or gliders who, while resident outside the coupe area, may have a home range that extend inside the coupe area. In that way, the respondents have sought to contend that the judge, by failing to give that consideration any or any adequate weight, made an error of the kind identified by the High Court in House v The King, and as described in the recent decision of the Full Court of the Federal Court in Shepherd.
The submissions made by the respondents are flawed for two fundamental reasons. First, while the formulation and grant of equitable relief, in the form of a declaration or an injunction, is in part discretionary, it must be based on a finding of fact or conclusion from the facts made by the judge in the proceeding. For the reasons we have already discussed, the additional relief now sought by way of cross-appeal, was not based on any such identified finding of fact or conclusion by the judge. Secondly, as discussed, the matters that are now sought to be included in the relief contended for in the cross-application are substantially different to, and distinct from, the issues properly defined by the respondent in their pleadings and that were thus the subject of determination by the judge.
For those reasons, the ground of appeal, relied on by the respondents, must fail. The application by the respondents for leave to cross-appeal must therefore be refused. The application to amend the notice of cross-appeal is also refused, as the amended notice suffers from the same vices as the original notice.

Disposition

We have concluded that:
(a)VicForests’ application for leave to appeal is granted but the appeal is dismissed;
(b)the respondents’ application for leave to cross-appeal is refused; and
(c)the respondents’ application for leave to amend the notice of the cross-appeal is refused.
We will make orders accordingly.
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SCHEDULE OF PARTIES

S EAPCI 2022 0111
VICFORESTS	Applicant
v
ENVIRONMENT EAST GIPPSLAND INC (ABN 30 865 568 417)	Respondent
S EAPCI 2022 0112
VICFORESTS	Applicant
v
KINGLAKE FRIENDS OF THE FOREST INC (ABN 35 186 838 481)	Respondent
S EAPCI 2023 0007
KINGLAKE FRIENDS OF THE FOREST INC (ABN 35 186 838 481)	Cross-Applicant
v
VICFORESTS	Cross-Respondent
S EAPCI 2023 0008
ENVIRONMENT EAST GIPPSLAND INC (ABN 30 865 568 417)	Cross-Applicant
v
VICFORESTS	Cross-Respondent

Code Principles	Operational Goals	Section
Biological diversity and ecological characteristics of native flora and fauna within forests is maintained.	Timber harvesting operations in State forests specifically address biodiversity conservation risks and consider relevant scientific knowledge at all stages of planning and implementation. …	2.2.2 and 3.2.2 Conservation of Biodiversity …
	Harvested native forest is managed to ensure that the forest is regenerated and the biodiversity of the native forest is perpetuated. …	2.2.2 and 3.2.2 Conservation of Biodiversity …

[2023] VSCA 159

27 June 2023