VicForests v Kinglake Friends of the Forests Inc

[2022] HCATrans 56

[2022] HCATrans 056

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M50 of 2021

B e t w e e n -

VICFORESTS

Applicant

and

KINGLAKE FRIENDS OF THE FORESTS INC. (ABN 35 186 838 481)

Respondent

Application for special leave to appeal

GAGELER J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 8 APRIL 2022, AT 11.30 AM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR N.C. HUTLEY, SC appears with MR E.M. NEKVAPIL and MS M.G. NARAYAN for the applicant.  (instructed by Johnson Winter & Slattery)

MR J.G. KORMAN appears for the respondent.  (instructed by Oakwood Legal)

GAGELER J:   Mr Hutley, the provision in issue has been repealed and the proceeding has been discontinued.  What are we doing here?

MR HUTLEY:   Your Honour, your Honours have then said, the decision of her Honour Justice Richards in Kinglake v VicForests (No 5) ‑ your Honours will see that the issue – as your Honours appreciated, interlocutory injunctions were granted in 2020 to restrain my client proceeding with logging.  Those interlocutory injunctions, your Honours, were discharged from 17 November 2021 and you will see that from paragraph 7.

This judgment was concerned with the application for leave to discontinue.  An issue arose as to what the effect of that discontinuance would have upon my client’s ability to enforce the undertaking for damages.  Her Honour addressed that at paragraphs 15 to 17, 18 and 21.  The long and short of it is that her Honour made an order in terms of that which appears at paragraph 27(b).

The short point is, is if those interlocutory injunctions were improperly granted because the respondent lacked standing, my client wishes to enforce the undertaking as to damages.  Therefore, unless this appeal is granted, that opportunity will wholly be foreclosed.  So, the suit has direct utility.  The point is a…..point – I will not come to the details of the point ‑ therefore, the case has direct utility for my client and that is why, as it were, we are here.

GAGELER J:   Has this opportunity been sought to be invoked?  Is there an application on foot?

MR HUTLEY:   No, and there is authority that an application should not be on foot, particularly when there are outstanding appeals, such as this.  Until they are dealt with, an application should not be on foot, and we have referred to those authorities in our written submissions in reply. 

STEWARD J:   Mr Hutley, you said, whilst there is an appeal pending, but is there at the moment, absent an application for reinstatement, any matter that is between the parties that needs to be quelled?

MR HUTLEY:   Well, there is a matter because if we are right, one of the things which would occur, is the proceedings would – the injunction would be dismissed and we would have received an order as to costs.  So, there is certainly…..between us in that regard.

STEWARD J:   But do you not need to – burdensome though it may be for you – do you not need to make your application to reinstate the proceeding, seek your damages, and if the judge considers themselves bound by the ruling of the Court of Appeal, go to the Court of Appeal, challenge again, and then, and only then, seek special leave?

MR HUTLEY:   In my respectful submission, we need leave for the undertaking of a damages hearing to take place.  In the face of, one, the Court of Appeal’s decision that there was standing, two, the Court’s determination that it was inappropriate not to allow discontinuance, and it was inappropriate that there be, as it were, a hearing of the substantive matter, unless this issue of standing is determined by this Court, our prospects of getting a hearing on an undertaking as to damages is precisely nil, with respect.  We need a determination that the injunction was improperly granted and that is the precondition, in our respectful submission, to getting an undertaking as – to get a hearing on the undertaking as to damages. 

That will only occur in this Court because the Court of Appeal has determined that the applicant, the respondent here, had standing.  And that is why we say this is the appropriate – that the appeal – there is a true controversy between us in the suit, and there is a controversy which has utility because it will inform – it will be the basis upon which we can approach the Court that there is a justification for it to order an inquiry as to damages. 

STEWARD J:   Can I ask you this question, in your written submissions you also say you need leave in order to resolve VicForests’ entitlement to costs.  Is that still pressed?

MR HUTLEY:   Your Honour, I accept wholly that your Honours would not grant leave on a basis of costs alone, but that is not to say that there is not a controversy between us.  There still is a controversy between us.  The appeal is, in our – and no one is submitting – I do not think it has been put that the appeal could not be entertained.  The real question, as we understand it, is its utility.  If the Court were to grant leave and allow the appeal, it would follow that the injunction was improperly granted.  It could have been granted.  That is the precondition, as the Court knows, to an application to enforce the undertaking as to damages.

GAGELER J:   Mr Hutley, if we would not grant special leave to appeal on the basis of the effect on costs, why would we be granting special leave to appeal on the basis of the effect on a possible application of this nature?

MR HUTLEY:   Well, your Honour, if the position is that the Court considers there has to be an application, the Court should, in those circumstances, stand the application over.  And I can assure your Honours, we will file an application for determination of the undertaking as to damages within a day.  If it is merely, in effect, a timing issue for the application to reinstate the matter for the application, as her Honour allowed to occur, and the absence of that is the defect then, in our respectful submission, your Honours should stand over this application for leave to appeal to allow us to do so, for we will do so.    That is, as it were, a certainty.

It is not unlike – anyway, your Honour, we submit the utility is that it will be the underpinning of what is an inevitable application for – and the granting of leave in the order for an inquiry as to damages.  But if your Honours take the view that inquiry should be commenced first, your Honours should not dismiss this application, but should stand it over and allow us to pursue that, and then we can return to your Honours, either after we have done that or at a later time.

GAGELER J:   We understand that submission, Mr Hutley.

MR HUTLEY:   Yes.  Now, should I go on to the substance of the matter?

GAGELER J:   You can take it from me, Mr Hutley, that I do consider the substance of the matter to be of some importance.

MR HUTLEY:   Well, I cannot say that ‑ ‑ ‑ 

GAGELER J:   The problem – your essential problem, as I see it, is the appropriateness of this case as a vehicle.

MR HUTLEY:   But as your Honours will also have seen, there are other cases between the claimant and the respondent here which, in essence, will be governed by the Court of Appeal’s reasoning, as the Court of Appeal has held that the relationship of the claimant to the legal regime governing the area is sufficient to give standing.  If the application has to await the determination of that in another suit, so be it, your Honour, but in our respectful submission – anyway, I would be repeating myself, your Honours.

GAGELER J:   Yes, thank you, Mr Hutley.  We will adjourn momentarily to consider the course we will take.

AT 11.41 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.46 AM:

GAGELER J:   Mr Korman, we do not need to hear from you.

We are of the view that the amendment of the Code of Practice for Timber Production, and the discontinuance of the proceeding in the Supreme Court of Victoria, render this an inappropriate vehicle for considering the question of standing sought to be raised by the applicant.

The application is refused, with costs.

The Court will now adjourn.

AT 11.46 AM THE MATTER WAS CONCLUDED