VicForests v Environment East Gippsland Inc

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.