WOTCH Inc v VicForests (No 4) - [2020] VSC 433

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2020 00373

WOTCH Inc	Plaintiff
v
VicForests	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 July 2020
DATE OF RULING:	16 July 2020
CASE MAY BE CITED AS:	WOTCH Inc v VicForests (No 4)
MEDIUM NEUTRAL CITATION:	[2020] VSC 433

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PRACTICE AND PROCEDURE — Interim injunction — Whether serious question to be tried — Whether balance of convenience favours granting injunction — Timber harvesting of State forests — Application of the precautionary principle — Protection of threatened species following 2019/20 Victorian bushfires — Flora and Fauna Guarantee Act 1988 (Vic) — Sustainable Forests (Timber) Act 2004 (Vic) — Code of Practice for Timber Production 2014.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	K Foley and C Mintz	Environmental Justice Australia
For the Defendant	D Collins QC and F Hudgson	Russell Kennedy Lawyers

HIS HONOUR:

The plaintiff is an incorporated association which (among other things) conducts surveys in Victoria’s forests to document and report on the presence of biodiversity values that attract protection from timber harvesting under the State regulatory scheme. The defendant, VicForests, is a State body which conducts timber harvesting in State forests in Victoria.

Bushfires which occurred during the 2019/20 fire season (‘the bushfires’) caused significant loss of flora and fauna in Victoria, including losses to species listed as threatened under the Flora and Fauna Guarantee Act 1988 (Vic). State and Commonwealth bushfire biodiversity responses are currently underway, but are not complete.

This proceeding, commenced by writ filed on 28 January 2020, concerns VicForests’ harvesting of timber following the bushfires in coupes which the plaintiff alleges contain, or are likely to contain, threatened species. The proceeding is fixed for trial on 7 October 2020.

The plaintiff alleges the State and Commonwealth bushfire responses will contain information and make findings which VicForests must take into account in planning and conducting its timber harvesting operations, and that it is unlawful for VicForests to harvest timber in coupes known by it or the Department of Land, Environment, Water and Planning (‘DELWP’) to contain or to be likely to contain threatened species or the habitat of threatened species affected by the bushfires until the impact of the bushfires on those species is fully understood.

This is the fourth application by the plaintiff for interim or interlocutory injunctive relief to restrain VicForests from harvesting timber in identified native forest coupes. McMillan J made orders granting an interim injunction in relation to three coupes on 29 January 2020,[1] an interlocutory injunction covering those three coupes and a further 10 coupes on 5 March,[2] and on 29 April an interlocutory injunction in relation to a further 13 coupes.[3]
[1]Wildlife of Central Highlands Inc v VicForests [2020] VSC 10.
[2]WOTCH v VicForests (No 2) [2020] VSC 99 (‘WOTCH (No 2)’).
[3]WOTCH v VicForests (No 3) [2020] VSC 220 (‘WOTCH (No 3)’).

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 WOTCH Inc v VicForests (No 4)

Details

AGLC: Wotch Inc v VicForests (No 4) [2020] VSC 433
Case: [2020] VSC 433
Decision Date: 16 July 2020

CaseChat Overview and Summary

WOTCH Inc, an environmental non-profit organisation, sought to restrain VicForests, a government-owned entity, from undertaking timber harvesting operations in the State forests of Victoria. The primary concern was the potential impact of these activities on threatened flora and fauna species, especially in the wake of the 2019/20 bushfires that had severely affected the region. The case was heard in the Supreme Court of Victoria, where the court had to determine whether to grant an interim injunction pending the final determination of the case.

The legal issues before the court included whether there was a serious question to be tried concerning the potential harm to threatened species, and whether the balance of convenience favoured the granting of an injunction. The court also needed to consider the application of the precautionary principle in the context of the Flora and Fauna Guarantee Act 1988, the Sustainable Forests (Timber) Act 2004, and the Code of Practice for Timber Production 2014. The court had to balance the need for economic activity against the environmental protection imperatives established by these statutes.

The court concluded that there was indeed a serious question to be tried regarding the potential impact of timber harvesting on threatened species in the aftermath of the bushfires. It found that the balance of convenience favoured granting the injunction, considering the significant environmental risks. The court was particularly swayed by the precautionary principle, which mandates that protective measures be taken in the face of environmental harm, even when the evidence is not yet conclusive. The court recognised the importance of maintaining biodiversity and the potential irreversible damage to threatened species, which outweighed the economic benefits of the timber harvesting operations. As a result, the court granted the interim injunction, halting the timber harvesting activities pending further proceedings.

The final orders of the court were that VicForests be restrained from undertaking timber harvesting operations in the specified areas until the case was resolved, unless and until further orders were made by the court. The injunction was to remain in place until the next court sitting or until further notice, thereby providing immediate protection to the threatened species in the affected forests.

Orders