Warburton Environment Inc v VicForests (No 6) - [2022] VSC 762

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2020 02461

WARBURTON ENVIRONMENT INC (ABN 28 781 873 830)	Plaintiff
v
VICFORESTS	Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions on relief and final orders
DATE OF RULING:	7 December 2022
CASE MAY BE CITED AS:	Warburton Environment Inc v VicForests (No 6)
MEDIUM NEUTRAL CITATION:	[2022] VSC 762

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ENVIRONMENTAL LAW – Timber harvesting within State forests in Central Highlands - Tree Geebung – Endangered species – Relief and final orders – Whether need for ongoing supervision by Court – Whether clear and capable of compliance – Recovery and reporting requirement – Form of Court order – Use of spatial data layers in final orders – Definitions – Expression of the injunction – Extent of reach – Glider proceedings – Liberty to apply if material change in law – Costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Korman with Dr K Weston-Scheuber	Oakwood Legal
For the Defendant	Mr E Nekvapil SC with Ms M Narayan	Johnson Winter & Slattery

HIS HONOUR:

Introduction

On 25 October 2022, I handed down reasons for judgment in this proceeding.[1] The parties were directed to consult and file a joint form of order consequent upon the judgment. In the event that they could not agree on a proposed form of order, each party was to file and serve a draft final order. Directions were given as to the filing of affidavits and submissions as to costs. The parties have consulted as to the final form of orders and have reached substantial agreement or non-objection as to many matters, including as to costs.
[1]Warburton Environment Inc v VicForests (No 5) [2022] VSC 633 (‘reasons for judgment’).

In these reasons, I will use the same terminology as is used in the reasons for judgment. I will address the issues that the parties have not been able to resolve.

For clarity, I note that agreements between the parties as set out in these reasons are not intended in any way to affect their position or prejudice their rights in the event of an appeal. They are merely agreements as to the orders that should be made in consequence of the reasons for judgment.

Secondly, it is important to state that the orders to be made are orders consequent upon the reasons for judgment. This is not an opportunity for a party to reopen its case at trial or to introduce new matters not raised at trial and properly the subject of evidence if they had been raised.

VicForests’ submissions

In its submissions as to relief, VicForests contended that there were significant difficulties with the form of injunction proposed to be made by the Court and that an injunction ought not be granted in the form proposed. VicForests advanced three main submissions.

Need for ongoing supervision

VicForests submits that the Court should not make an injunction that requires 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: [2022] VSC 762
Decision Date: 7 December 2022

CaseChat Overview and Summary

Warburton Environment Inc initiated proceedings against VicForests (No 6), seeking relief in relation to timber harvesting within the State forests in the Central Highlands. The applicant sought an injunction preventing VicForests from engaging in harvesting activities that could adversely affect the Tree Geebung, an endangered species. The case was heard in the Supreme Court of Victoria. The primary legal issues revolved around the need for ongoing supervision by the court, the clarity and enforceability of the relief sought, and the form of the court order, including the use of spatial data layers.

The court examined whether the relief sought was clear, capable of compliance, and whether ongoing supervision was necessary. The court found that the injunction should be clear and precise, ensuring it was capable of compliance. It was held that ongoing supervision was not required as the relief was sufficiently clear and enforceable. The court also addressed the form of the order, determining that the use of spatial data layers was appropriate to define the boundaries and extent of the injunction. The court noted that the form of the order should ensure it is practical to comply with and that it provides adequate protection for the endangered species.

In its decision, the court issued an injunction prohibiting VicForests from engaging in harvesting activities that could adversely affect the Tree Geebung within the specified areas. The court defined the spatial data layers to be used for the injunction and set out a reporting requirement to ensure compliance. The court also ordered VicForests to pay costs associated with the proceedings. Additionally, the court reserved liberty for Warburton Environment Inc to apply if there was a material change in the law. The final orders provided clear guidance on the extent and enforcement of the injunction, ensuring adequate protection for the endangered species while allowing VicForests to continue its operations within the bounds of the law.

Orders