| 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…
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- Case
- [2023] VSCA 159
- Decision Date
CaseChat Overview and Summary
The central legal issues addressed by the Court of Appeal were whether VicForests was denied procedural fairness, whether the primary judge erred in construing the relevant provisions of the Code of Practice for Timber Production 2014, whether the necessary equity to attract injunctive relief was established, whether the injunctions were limited to what was necessary to avoid unlawfulness, whether the declarations and injunctions were impermissibly imprecise and uncertain, and whether the primary judge failed to give adequate reasons. VicForests also sought leave to appeal on the basis that the primary judge erred in his application of the precautionary principle. Environment East Gippsland Inc sought leave to cross-appeal on the basis that the primary judge failed to consider risks affecting gliders proximate to but outside the coupe at the time of the survey.
The Court of Appeal granted VicForests leave to appeal, finding that the appeal had prospects of success. The Court of Appeal found that the primary judge had erred in his application of the precautionary principle and in his interpretation of the relevant provisions of the Code of Practice for Timber Production 2014. The Court of Appeal found that the primary judge had failed to give adequate reasons for his conclusion that VicForests’ operations did not comply with regulatory requirements. The Court of Appeal found that the declarations and injunctions were impermissibly imprecise and uncertain. The Court of Appeal found that the primary judge had failed to consider risks affecting gliders proximate to but outside the coupe at the time of the survey. However, the Court of Appeal dismissed VicForests’ appeal, finding that the errors did not materially affect the outcome of the proceeding. The Court of Appeal refused Environment East Gippsland Inc leave to cross-appeal.
The Court of Appeal made no orders as to costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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