| 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.
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…
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- AGLC
- WOTCH Inc v VicForests (No 5) [2020] VSC 528
- Case
- [2020] VSC 528
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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