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Wombat Forestcare Inc v VicForests

Wombat Forestcare Inc v VicForests

Case [2023] VSC 582 2 October 2023

Precautionary Principle

Interlocutory Injunctions

Balancing of Convenience

Environmental Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2023 04203

WOMBAT FORESTCARE INC (ABN 94 771 427 351)	Plaintiff
v
VICFORESTS	First Defendant
and
TILEY INDUSTRIES PTY LTD	Second Defendant
and
GARY and COLLEEN KIRBY	Third and Fourth Defendants

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2023
DATE OF JUDGMENT:	2 October 2023
CASE MAY BE CITED AS:	Wombat Forestcare Inc v VicForests
MEDIUM NEUTRAL CITATION:	[2023] VSC 582

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ENVIRONMENTAL LAW — Timber harvesting in State forests — Applications for interlocutory injunctions — Where forest produce licences issued by VicForests for timber harvesting activities — Precautionary principle — Whether serious question to be tried that timber harvesting operations unlawful — Whether necessary surveys carried out by VicForests for threatened species of flora and fauna — Balance of convenience — Interlocutory injunctions granted — Forests Act 1958 (Vic), s 52 — Sustainable Forests (Timber) Act 2004 (Vic), s 46 — Code of Practice for Timber Production 2014 (as amended 2022), ss 2.2.2.2, 2.2.2.4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Korman	J King Legal
For the First Defendant	Ms F Hudgson	Johnson Winter Slattery
For the Second Defendant	Mr H Redd	Harwood Andrews
For the Third and Fourth Defendants	No appearance

TABLE OF CONTENTS

Background.................................................................................................................................... 1
The defendants..................................................................................................................... 1
Coupe 193-538-0008 ‘Silver Queen’................................................................................... 3

Interlocutory injunctions — principles...................................................................................... 8
Code of Practice for Timber Production 2014 (as amended 2022)......................................... 8
Standing........................................................................................................................................ 15
Serious question to be tried....................................................................................................... 15
Spot-tailed quolls............................................................................................................... 17
Forest owls.......................................................................................................................... 20
Reptiles................................................................................................................................ 22
Flora..................................................................................................................................... 26

Balance of convenience............................................................................................................... 27
Consideration..................................................................................................................... 29

HER HONOUR:

Background

Wombat Forestcare Inc (WFC) is an incorporated association of about 200 members, with the purpose of protecting and enhancing the ecological health of the Wombat State Forest, located near Woodend and Daylesford in central Victoria. According to its convenor, Gayle Osborne, WFC has for many years organised and participated in events and activities promoting conservation of native flora and fauna in the Wombat State Forest. WFC claims to have a special interest in the protection of the environment in the Wombat State Forest, and standing to seek injunctions to restrain what it says are unlawful timber harvesting operations in coupe 193-538-0008, also known as ‘Silver Queen’.

WFC became aware that timber harvesting was taking place in Silver Queen in early September 2023, and commenced this proceeding on 11 September 2023. I heard an application for interlocutory injunctions on 18 and 21 September 2023. On 26 September 2023 I made orders granting interim injunctions to prevent timber harvesting operations from continuing in Silver Queen until 5:00pm on 31 October 2023. I also made procedural directions for the filing and service of pleadings, further evidence, and further submissions, and adjourned the further hearing of WFC’s application to 31 October 2023.

These are my reasons for those orders.

The defendants

VicForests is a Victorian Government owned business, established by an Order in Council made under…

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.

Continue reading Wombat Forestcare Inc v VicForests

Details

AGLC: Wombat Forestcare Inc v VicForests [2023] VSC 582
Case: [2023] VSC 582
Decision Date: 2 October 2023

CaseChat Overview and Summary

The case of Wombat Forestcare Inc v VicForests involved an application for interlocutory injunctions by the environmental group Wombat Forestcare Inc against VicForests, the body responsible for managing timber harvesting activities in Victoria's State forests. The dispute centred around whether VicForests had complied with its obligations under environmental legislation to conduct necessary surveys for threatened species of flora and fauna before issuing forest produce licences for timber harvesting. Wombat Forestcare argued that VicForests' failure to conduct these surveys meant that the timber harvesting operations were unlawful and posed a risk to the environment, invoking the precautionary principle. The matter was heard in the Supreme Court of Victoria.

The court had to decide whether there was a serious question to be tried regarding the lawfulness of the timber harvesting operations and whether VicForests had adequately fulfilled its obligations under the Forests Act 1958 (Vic), the Sustainable Forests (Timber) Act 2004 (Vic), and the Code of Practice for Timber Production 2014 (as amended 2022). In particular, the court examined whether VicForests had conducted the necessary surveys for threatened species of flora and fauna before issuing the forest produce licences. Additionally, the court considered the balance of convenience and whether it was appropriate to grant the interlocutory injunctions sought by Wombat Forestcare.

In granting the interlocutory injunctions, the court found that there was a serious question to be tried regarding the lawfulness of the timber harvesting operations, and it appeared that VicForests had not carried out the necessary surveys for threatened species of flora and fauna. The court held that the precautionary principle applied, and the balance of convenience favoured granting the injunctions to prevent potential irreparable harm to the environment. The court concluded that VicForests' failure to conduct the required surveys was a breach of its obligations under the relevant legislation, and thus, interlocutory injunctions were warranted to protect the environment pending the final determination of the case. The court ordered VicForests to refrain from proceeding with the timber harvesting operations until further order.

Orders