Wotch Inc v VicForests (No 7) - [2020] VSC 817

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:	30 November 2020
DATE OF RULING:	4 December 2020
CASE MAY BE CITED AS:	WOTCH Inc v VicForests (No 7)
MEDIUM NEUTRAL CITATION:	[2020] VSC 817

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PRACTICE AND PROCEDURE – Whether relief sought in amended statement of claim is impermissible because it would amount to a declaration that VicForests has committed a crime – Case management – Sustainable (Forests) Timber Act 2004 (Vic) ss 45, 46 – Warburton Environment Inc v VicForests (No 2) [2020] VSC 738 – Kinglake Friends of the Forest Inc v VicForests (No 3) [2020] VSC 777 – Pharmacy Guild of Australia v Ramsay Health Care Limited [2019] NSWSC 1045.

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

HIS HONOUR:

This proceeding concerns the legality of timber harvesting by VicForests in native forest coupes inhabited by species listed as threatened under the Flora and Fauna Guarantee Act 1988 (Vic) which may affect those species.

The trial of the proceeding, originally listed for October of this year, was adjourned when it became apparent the parties would be unable to complete necessary preparation for trial. The proceeding has not yet been refixed.

On 20 October 2020 I delivered a ruling dealing with the plaintiff’s standing in respect of part of the relief sought in the statement of claim. VicForests conceded that the plaintiff had standing in respect of the subject matter of the proceeding within the Central Highlands forest region. I determined that the plaintiff also had standing in respect of the subject matter of the proceeding outside the Central Highlands to the extent it concerned the Greater Glider, which is one of the threatened species.

The plaintiff has applied to file an amended statement of claim (‘ASOC’), in part to respond to the standing ruling, and seeks timetabling orders to a trial date in mid-2021.

This ruling deals with the following issues:

(a) Whether part of the relief sought in the proposed ASOC:

(i) is impermissible because it would amount to a declaration that VicForests has committed a crime; and

(ii) would unworkably expand the issues for determination at trial such that, from a case management perspective, it is not appropriate for the plaintiff to be permitted to seek relief in that form.

(b) Particularisation of coupes which are the subject of the proceeding including:

(i) Compliance by the parties with Orders 3 and 4 made 13 May 2020 directed to the identification and particularisation of forest coupes which are the subject of the proceeding;

(ii) Whether, in the light of a number of coupes which the plaintiff will particularise, the trial should proceed by reference to representative samples for identified categories of coupes; and

(iii) Whether the plaintiff should be…

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: [2020] VSC 817
Decision Date: 4 December 2020

CaseChat Overview and Summary

Wotch Inc brought proceedings against VicForests, seeking relief including a declaration that VicForests had contravened the Sustainable (Forests) Timber Act 2004 (Vic). The Supreme Court of Victoria had to determine whether the relief sought in the amended statement of claim was impermissible because it would amount to a declaration that VicForests had committed a crime. The court also had to consider whether the case should be dismissed due to the case management provisions of the Act and relevant case law.

The court found that the relief sought did not amount to a declaration that VicForests had committed a crime, and was therefore permissible. The court also held that the case should not be dismissed on case management grounds, as the amended statement of claim did not contravene the relevant provisions of the Act or the case law. The court found that the case was not an abuse of process, and that the amendment did not cause significant prejudice to VicForests.

The court ordered that the amended statement of claim be allowed, and that VicForests' application to strike out the amended statement of claim be dismissed. The court also ordered that VicForests pay Wotch Inc's costs of the application to strike out the amended statement of claim.

Orders