VicForests v Environment East Gippsland Inc - [2023] VSCA 159

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSCA 159
Decision Date: 27 June 2023

CaseChat Overview and Summary

The decision of the Court of Appeal concerns an application for leave to appeal against an interlocutory judgment in a proceeding brought by Environment East Gippsland Inc against VicForests. VicForests harvested timber in Victoria’s State forests in the East Gippsland and Central Highlands regions. Environment East Gippsland Inc contended that VicForests’ timber harvesting operations did not comply with regulatory requirements and threatened the survival of native fauna. The primary judge found in favour of Environment East Gippsland Inc and made prohibitory injunctions and declaratory relief in its favour. VicForests sought leave to appeal from the interlocutory judgment, while Environment East Gippsland Inc sought leave to cross-appeal.

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