JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2022
DATE OF RULING:	26 August 2022
CASE MAY BE CITED AS:	WOTCH Inc v VicForests (No 9)
MEDIUM NEUTRAL CITATION:	[2022] VSC 503

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PRACTICE AND PROCEDURE — Pleadings — Late Amendment — Plaintiff articulated form of final relief sought in closing submissions — Defendant argued relief represented a brand new case, and that it would suffer irremediable prejudice if leave to amend was granted — Whether relief open on current pleadings — Whether relief sought is consistent with the parties’ conduct of the trial — Leave for plaintiff to amend pleading.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Knowles QC, K Foley SC, C Mintz and S Rajanayagam	Environmental Justice Australia
For the Defendant	J Pizer QC, H Redd and F Hudgson	Baker McKenzie

HIS HONOUR:

Bushfires that occurred during the 2019/2020 fire season caused severe damage to native forests in East Gippsland and North-East Victoria, resulting in the death of native fauna and destruction and damage to habitat, including of species listed as threatened under Part 3 of the Flora and Fauna Guarantee Act 1998 (Vic) (‘FFG Act’).

VicForests is a State body with the responsibility for timber harvesting in State forests in Victoria.

When planning for or undertaking timber harvesting operations, VicForests must comply with the Code of Practice for Timber Production (‘Code’) published under Part 5 of the Conservation, Forest and Lands Act 1987 (Vic).

WOTCH claims that, in the context of damage caused by the bushfires to threatened species and the habitat of those species, VicForests has failed and will fail to comply with the precautionary principle, which is a mandatory action in the Code.

The case pleaded by WOTCH alleged, in summary, that VicForests has breached and will continue to breach the precautionary principle by planning and conducting timber harvesting operations in coupes known to contain or to be likely to contain fire-affected threatened species or the habitat of those species:

(a)Prior to completion of Commonwealth and State biodiversity responses to the bushfires, and implementation of management actions contained in those responses;
(b)Having failed to develop and implement timber harvesting prescriptions to avoid serious or irreversible damage to relevant fire-affected threatened species, wherever practical; and
(c)Prior to the identification and finalisation of protection areas for relevant threatened species.

In final submissions WOTCH did not press the allegation of breach summarised in sub-paragraph (c).

In the prayer for relief in the Second Further Amended Statement of Claim (‘2FASOC’), WOTCH sought declarations and injunctions that mirror the allegations of breach.

In final written submissions, WOTCH set out the declaratory and injunctive relief it now seeks. That relief is substantially directed to the allegation of breach in sub-paragraph (b) above, and precisely states the prescriptions that WOTCH argues would discharge VicForests’ obligations 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 WOTCH Inc v VicForests (No 9)

Details

AGLC: Wotch Inc v VicForests (No 9) [2022] VSC 503
Case: [2022] VSC 503
Decision Date: 26 August 2022

CaseChat Overview and Summary

WOTCH Inc commenced proceedings against VicForests in the Federal Court of Australia, seeking to prevent the defendant from continuing with a project to log native forests. The dispute centred on the authorisation of the logging project under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The trial concluded and closing submissions were made, during which WOTCH Inc specified a particular form of relief it sought. VicForests argued that this relief represented a new case and that it would suffer irremediable prejudice if the court allowed an amendment to the pleadings. The court had to decide whether the relief sought by WOTCH Inc was available on the current pleadings and whether the relief was consistent with how the parties had conducted the trial.

The court considered whether the relief sought by WOTCH Inc was within the scope of the case as initially pleaded. The judge found that the relief was not fundamentally different from what was originally sought and that it was consistent with the conduct of the trial. The court also assessed whether granting leave to amend would cause irremediable prejudice to VicForests. In this regard, the judge determined that VicForests had not demonstrated that it would suffer such prejudice, as it had been able to address the issues raised during the trial.

The Federal Court of Australia granted WOTCH Inc leave to amend its pleadings to reflect the specific form of relief it sought. The court found that the relief was consistent with the case as it had been conducted and that VicForests would not suffer irremediable prejudice as a result of the amendment. The decision allowed the case to proceed with the amended relief, ensuring that the plaintiff could seek the specific outcome it had articulated during closing submissions.

Orders