Wotch Inc v VicForests (No 5) - [2020] VSC 528

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:	7 August 2020 and 11 August 2020
DATE OF RULING:	21 August 2020
CASE MAY BE CITED AS:	WOTCH Inc v VicForests (No 5)
MEDIUM NEUTRAL CITATION:	[2020] VSC 528 (First Revision 16 September 2020)

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PRACTICE AND PROCEDURE — Interlocutory 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) —— Code of Practice for Timber Production 2014.

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

HIS HONOUR:

The subject matter of this proceeding is timber harvesting by VicForests in native forest coupes inhabited by species listed as threatened under the Flora and Fauna Guarantee Act 1988 (Vic) (‘the FFG Act’). The bushfires which occurred during the 2019/20 fire season (‘the bushfires’) caused significant population and habitat losses for some of those species.

The plaintiff alleges State and Commonwealth bushfire biodiversity responses which are currently underway 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 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 ruling deals with the plaintiff’s application for an interlocutory injunction to restrain VicForests from harvesting certain forest coupes in the Central Highlands forest region pending trial, which is fixed for October this year. It follows, and should be read with, an interim ruling by me on the same application on 16 July 2020,[1] and three earlier rulings in this proceeding by McMillan J granting interim and interlocutory relief in relation to other forest coupes.[2] The plaintiff alleges each coupe the subject of this application contains relevant threatened species.
[1][2020] VSC 433.
[2]Wildlife of the Central Highlands Inc v VicForests [2020] VSC 10; WOTCH v VicForests (No 2) [2020] VSC 99; and WOTCH v VicForests (No 3) [2020] VSC 220.

I will adopt without restatement the relevant background set out in the previous rulings to which I have referred.

The following further evidence has been filed since the hearing of the interim application:

(a) plaintiff–

(i) expert report of Dr Andrew Smith dated 30 July 2020 and letter of instruction dated 22 July 2020;

(ii) second expert report of Dr Andrew Smith dated 2 August 2020 and…

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 5)

Details

AGLC: WOTCH Inc v VicForests (No 5) [2020] VSC 528
Case: [2020] VSC 528
Decision Date: 21 August 2020

CaseChat Overview and Summary

Wotch Inc brought an application against VicForests in the Federal Court of Australia, seeking an interlocutory injunction to prevent the defendant from continuing timber harvesting in certain State forests. The applicant argued that the harvesting would endanger threatened species in the aftermath of the 2019/20 Victorian bushfires, contrary to the Flora and Fauna Guarantee Act 1988 (Vic) and the Code of Practice for Timber Production 2014. The court was tasked with determining whether there was a serious question to be tried and whether the balance of convenience favoured the grant of an injunction.

The court considered the criteria for granting an interlocutory injunction, focusing on whether there was a serious question to be tried and whether the balance of convenience weighed in favour of the applicant. The serious question to be tried hinged on whether VicForests’ actions would significantly harm threatened species, and the balance of convenience involved weighing the harm to those species against the economic and social costs of halting the timber harvesting. The court noted the precautionary principle and the potential long-term environmental consequences of the timber harvesting activities.

After evaluating the evidence and submissions, the court concluded that there was a serious question to be tried regarding the potential harm to threatened species. However, the balance of convenience did not favour granting the injunction, as the economic and social costs of halting the timber harvesting were deemed too significant. Consequently, the application for an interlocutory injunction was dismissed. The court's decision recognised the importance of both environmental protection and the socio-economic impacts of the timber industry.

Orders