Plaintiff v Defendant

Supreme Court of Victoria|2020-11-09|Before: GARDE J

PRACTICE AND PROCEDURE - Timber harvesting of State forests - Strike out of statement of claim - Failure to plead facts to show special interest - Claims for declarations of criminal conduct and commission of offences in civil proceedings - Adequacy of pleading and prayer for relief - Standing where plaintiff is an environment group - Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 23.02, 34.04, 36.04 - Sustainable Forests (Timber) Act 2004 (Vic) ss 1, 5, 9, 10, , , (2), , , - (Vic) , sch 1 - (Cth) , (1) - Code of Practice for Timber Production 2014 - Management Standards and Procedures for timber harvesting in Victorian State forests 2014, table 14.

1 The plaintiff ('Warburton Environment') is a not-for-profit association incorporated in 2008. The defendant ('VicForests') was established on 28 October 2003 under s 14 of the State Owned Enterprises Act 1992 (Vic).

2 The Court has before it five applications brought by summons. They are:

(a) VicForests' summons filed 10 August 2020 seeking that the amended statement of claim filed 4 August 2020 ('ASOC') be disallowed under r 36.04(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules');

(b) VicForests' summons filed 31 August 2020 seeking that:

(1) various paragraphs and parts of the prayer for relief in the ASOC be struck out under r 23.02(a) of the Rules;

(2) corresponding paragraphs of the statement of claim filed 17 June 2020 ('SOC') be struck out under the same provision; and

(3) summary judgment be given for VicForests in respect of certain paragraphs of the prayer for relief in the ASOC;

(c) Warburton Environment's summons filed 18 September 2020 seeking interlocutory relief to restrain VicForests from timber harvesting operations in Harley, Ben 10 and Fireman Sam coupes in the Central Highlands region of Victoria unless various conditions are met in relation to Tree Geebung;

(d) Warburton Environment's summons filed 24 September 2020 seeking leave to file a further amended statement of claim dated 24 September 2020 ('FASOC') under r 34.04(1)(b); and

(e) Warburton Environment's summons filed 5 October 2020 seeking to restrain VicForests from timber harvesting operations in any coupe in the Central Highlands region described in the summons unless various conditions are met in relation to Tree Geebung.

3 The parties have filed and served affidavits and exhibits on which they rely. VicForests sought to rely on the affidavit and exhibits of Dean Kriek, affirmed 14 October 2020. Warburton Environment objected to the late service of this affidavit on the morning of the hearing. Following the hearing, I made interim orders imposing various requirements to protect Tree Geebung during timber harvesting at Gaboon and Myrrh coupes, and on the following day in relation to Flagstaff, Maxibon and Frankincense coupes.

4 Warburton Environment has filed three versions of its statement of claim. The SOC was filed when the writ was issued. The ASOC was filed without leave before the close of pleadings. Leave is now sought to file the FASOC.

5 Since the writ was issued, Warburton Environment has sought to expand the scope of the claim. The SOC related only to the Pat's Corner coupe near Warburton. The FASOC seeks injunctions applying to coupes in the Central Highlands region of Victoria.

6 VicForests filed a defence to the SOC on 17 July 2020. It has not pleaded to the ASOC or FASOC. It has recently introduced a special management plan for Tree Geebung ('plan'). The plan articulates VicForests' position and policy in relation to the protection of Tree Geebung where they are found in coupes.

7 The plan describes the Tree Geebung as a small tree species that occurs in the wet eucalypt forests east of Melbourne. The species is endemic to Victoria inhabiting an area of about 700km² within the Central Highlands. The Tree Geebung is locally abundant throughout its range, while considered rare on a statewide basis. According to the plan, the Tree Geebung is one of the most common shrubs in the Central Highlands wet forests.

8 Tree Geebung are currently listed as vulnerable on the Department of Environment Land Water and Planning ('DELWP') Threatened Species Advisory List. Under the Flora and Fauna Guarantee Act 1988 (Vic), Tree Geebung has been assessed for a provisional listing of 'Endangered' which reflects the threats of climate change and increased fire frequency to the species.

9 The main issue in this proceeding is the construction and application of the Code of Practice for Timber Production 2014 ('Code') and the Management Standards and Procedures for timber harvesting operations in Victoria's State forests 2014 ('Standards') as they apply to Tree Geebung. The Standards are incorporated into the Code and provide mandatory instructions for timber harvesting operations in State forests. Timber harvesting operations in the Central Highlands are subject to the Code and the Standards.

10 Part 2.2 of the Code includes requirements that must be observed during timber harvesting. Under each requirement, the Code lists operational goals and mandatory actions which must be undertaken to achieve the relevant operational goals.

11 Part 2.2.2 contains the requirement to conserve biodiversity. In addressing biodiversity conservation risks, cl 2.2.2.2 applies the precautionary principle to the conservation of biodiversity values. The Code defines this principle to mean:

...when contemplating decisions that will affect the environment, careful evaluation of management options be undertaken to wherever practical avoid serious or irreversible damage to the environment; and to properly assess the risk-weighted consequences of various options. When dealing with threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.[1]

12 One of the mandatory actions in pt 2.2.2 is to perpetuate the biodiversity of harvested native forests. Relevantly to that end, cl 2.2.2.10 states that timber harvesting operations must:

Retain and protect...long-lived understorey species to provide for the continuity and replacement of...existing vegetation types within each coupe.

13 Under cl 4.3.1.1 of the Standards, VicForests is required to:

Apply management actions for rare and threatened flora identified within areas affected by timber harvesting operations as outlined in Appendix 3 Table 14 (Rare or threatened floral prescriptions).

14 For the Central Highlands region, the management action for Tree Geebung is found in Table 14:

Protect mature individuals from disturbance where possible.

15 While documents like the Standards should not be construed in an overcritical or technical fashion,[2] the management action for Tree Geebung is ambiguous and uncertain of meaning.

16 One construction of the management action is to the effect that if it is physically possible to protect a Tree Geebung then this should be done. Warburton Environment relies on the expert evidence of Stephen Mueck that the management action requires a pre-harvest coupe survey using transects spaced at a maximum of 30m by an experienced person to determine whether Tree Geebung are present in a coupe to be harvested, and a 50m radius buffer around each mature Tree Geebung so that each Tree Geebung is not less than 15m horizontally from the perimeter of the circle. Such a buffer area would protect Tree Geebung from the effects of windthrow as well as other hazards.

17 The plan takes a different view of the management action required for Tree Geebung, and is endorsed by the Chief Conservation Regulator. It gives priority to the preservation of clusters of mature individuals. According to the plan, individual mature and immature Tree Geebung are not a priority for protection from timber harvesting or regeneration activities.

18 The plan however states that practical options to protect individual Tree Geebung must be considered if the Tree Geebung are:

(b) isolated mature individuals to promote seed development and regeneration post-harvest; and

19 In general, the plan does not require buffer areas around mature individuals not found in clusters.

20 Under the plan, each identified mature Tree Geebung must be assessed to determine practicable protection. Any decision to disturb mature Tree Geebung is to be documented.

21 The issue whether the plan complies with the Code and the Standards principally involves the construction of the relevant parts of the three documents supported by expert evidence. The parties should give consideration as to whether this issue can be separately heard and determined.

22 Under cls 1.4 and 1.5 of the Standards, the Minister can grant a temporary variation or an exemption from the Standards upon application. No application or request of this nature has been made to date.

23 As a result, the Court is required to determine the meaning and application of the management action to '[p]rotect mature individuals from disturbance where possible'.[3]

24 The main purposes of the Sustainable Forests (Timber) Act 2004 (Vic) ('SF Act') include:

(a) to provide a framework for sustainable forest management and sustainable timber harvesting in State forests;

(ab) to provide for the granting of long-term access to timber resources in State forests;

(ac) to foster investment in, and returns from, timber resources in State forests;

(ad) to establish, and to provide for the enforcement of, timber harvesting safety zones so as to reduce risks to public safety and disruption of timber harvesting operations;

(ae) to deter activities that create risks to public safety in timber harvesting safety zones and that cause disruption of timber harvesting operations...[4]

25 The principles of ecologically sustainable development are set out in s 5 of the

(1) In undertaking sustainable forest management in accordance with this Act, regard is to be had to the principles of ecologically sustainable development set out in this section.

(2) Ecologically sustainable development is development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends.

(3) The objectives of ecologically sustainable development are -

(a) to enhance individual and community well-being and welfare by following a path of economic development that safeguards the welfare of future generations;

(b) to provide for equity within and between generations;

(c) to protect biological diversity and maintain essential ecological processes and life-support systems.

(4) The following are to be considered as guiding principles of ecologically sustainable development -

(a) that decision making processes should effectively integrate both long-term and short-term economic, environmental, social and equity considerations;

(b) if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

(c) the need to consider the global dimension of environmental impacts of actions and policies;

(d) the need to develop a strong, growing and diversified economy which can enhance the capacity for environment protection;

(e) the need to maintain and enhance international competitiveness in an environmentally sound manner;

(f) the need to adopt cost effective and flexible policy instruments such as improved valuation, pricing and incentive mechanisms;

(g) the need to facilitate community involvement in decisions and actions on issues that affect the community.

26 Under s 9 of the SF Act , the Secretary can require VicForests to provide information about the carrying out of its functions.

27 Section 12A provides that timber resources in State forests are the property of the Crown. Property in the timber vests in VicForests on the making of an allocation order.[5]

28 Under s 13, the Minister may allocate timber to VicForests for the purposes of harvesting and sale. The Minister may also permit VicForests to undertake associated management activities in relation to allocated timber including:

29 Section 14(2) provides that VicForests may only harvest and sell timber in accordance with an allocation order. VicForests must carry out its functions in accordance with the allocation order both as to timber resources and the area applicable to the order.[6]

30 Section 37 of the SF Act requires VicForests to prepare a plan for the harvesting and selling of allocated timber resources and to undertake management activities in relation to those resources consistently with the allocation order and the Code. Notice of harvesting plans is published in the Government Gazette.[7]

(1) A person must not undertake timber harvesting operations in any part of a State forest unless those operations are authorised operations.

...

Penalty: 240 penalty units, in the case of a body corporate.

(2) For the purposes of this section, authorised operations means -

(i) timber harvesting operations undertaken by, or on behalf of, VicForests in accordance with an allocation order and a timber release plan that relates to that allocation order; or

(ii) timber harvesting operations undertaken by, or on behalf of, a person who has entered into an agreement with VicForests for the harvesting and sale of timber resources, or the harvesting or sale of timber resources; or

...

32 Section 46 requires VicForests and its contractors to comply with the Code.

33 The Minister can appoint an appropriately qualified person to audit compliance with the Code by VicForests or any harvesting contractor.[8] If an audit results in adverse findings against VicForests, VicForests must prepare a written response to the findings including details of measures to improve compliance with the Code.[9]

34 Authorised officers can give directions as to the conduct of timber harvesting operations in a State forest. It is an offence not to comply with a direction.[10] Authorised officers can suspend harvesting operations in a State forest if there has been a failure to comply with a direction and there is imminent damage to the environment or a serious risk to safety.[11] It is an offence not to comply with a suspension notice.[12]

35 Enforceable undertakings may be made by the Secretary with persons who have contravened or allegedly contravened s 45 of the SF Act. While an undertaking is in force, a proceeding for an offence may not be brought for the contravention in respect of which the undertaking is given. If the person complies with the requirements of the undertaking, no further proceeding may be brought at all.[13]

36 Under s 96 and sch 1 of the Conservation, Forests and Lands Act 1987 (Vic) ('CFL Act'), only specified persons are authorised to prosecute offences under the SF Act. They include authorised officers, police officers and persons authorised by the Secretary.

37 Warburton Environment's standing is strongly contested. VicForests admits in its defence that Warburton Environment has standing in relation to the Pat's Corner coupe. However, it submits that Warburton Environment does not have standing to seek relief in relation to the Central Highlands region generally.

38 Warburton Environment submits that it has a special interest in the subject matter of the proceeding and can bring proceedings to uphold public rights. It says that its standing extends beyond the Warburton area to the Central Highlands region.

39 The principles applicable to standing were stated in Australian Conservation Foundation Inc v The Commonwealth where Gibbs J[14] said:

I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.[15]

40 Recently in Maguire v Parks Victoria, the Court of Appeal considered whether a person seeking to restrain Parks Victoria from implementing a decision to cull brumbies in the Alpine National Park had standing.[16]

41 The Court summarised the relevant authorities in these terms:

In Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), the High Court observed that the special interest test was flexible and that its content in a given case will be dictated by the nature and subject matter of the litigation. That observation was further explained by Gaudron, Gummow and Kirby JJ in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd who said:

This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject-matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law.

The special interest in the subject matter of the proceeding is not limited to a legal, proprietary or financial interest that the private law protects.

...

After referring to the holding in Bateman's Bay that a plaintiff had standing where its interest was 'as a matter of practical reality...immediate, significant and peculiar to [it]', their Honours continued:

The established requirements as to standing ensure that the work of the courts remains focused upon the determination of rights, duties, liabilities and obligations as the most concrete and specific expression of the law in its practical operation, rather than the writing of essays of essentially academic interest. To recognise that a person has a sufficient interest to seek the exercise of judicial power where that exercise is apt to affect 'the legal situation of persons subject to the jurisdiction of the court' serves to maintain the ordinary characteristics of judicial power.

It may be accepted that there is a general public interest that governments act in accordance with the law enforced by the courts; but to conclude that the plaintiff's sense of grievance at the injustice of these laws is not an interest which suffices to give him standing to challenge their validity is not to undermine this aspect of the rule of law.[17]

42 The Court described how the special interest test is to be applied:

... the special interest test plainly requires an intersection between the interest identified by the plaintiff and the decision that is sought to be impugned in the proceeding. It will require an assessment of how the interests of the plaintiff are liable to be affected by the exercise of power... [W]here the interest sought to be protected by the plaintiff is the public interest, there is less utility in asking whether the interest of the plaintiff is affected... It is relevant to assess how the decision might intersect with that interest, having regard to the legal and practical effect of the decision. That is because the test revolves around the nature of the relationship between the plaintiff and the subject matter. It may be necessary to assess whether the identified relationship is too remote or tenuous. However, it is to be remembered that standing is a threshold requirement and should not depend on whether the grounds might be made out or relief withheld on a discretionary basis.

In considering whether a plaintiff has standing to challenge the exercise of a statutory power, it is important to examine the statutory context to assess whether and to what extent the interests of the plaintiff are accommodated in a way that might support standing.

...the nature of the statutory power or its exercise will intersect with the interests of a particular section of the community and make it easier to discern the special interest of the plaintiff...

Although the statutory context is important, it does not control standing. A plaintiff may have standing to challenge the exercise of power because of its practical or legal effect even though the interests of the plaintiff do not coincide with the purpose of the statutory scheme...

It is thus necessary to identify the nature of the claim and the relief sought.[18]

43 After individually and collectively analysing the matters on which the plaintiff relied, the Court concluded that he did not have standing.

44 Contests as to standing have often arisen in proceedings where an environmental organisation or group seeks declarations or injunctions in relation to timber harvesting activities.[19]

45 Where a plaintiff seeks to show that it has standing to uphold a public right, as is the case here, it must plead the nature of the claim by which standing is alleged in the statement of claim. It must also clearly identify the relief which it seeks.

For the plaintiff it was argued in the first place that the proper course was to adjourn the application to strike out the statement of claim so that the matter might go to trial, reserving the question of the standing of the plaintiff to maintain the proceedings so that it might be decided in the light of all the detailed facts. It does not appear to me that that is a convenient course. The function of the statement of claim is to set out the ultimate facts which it is sought to establish by appropriate evidence or admissions. If the ultimate facts relied upon do not disclose any cause of action it is not in the interest of the parties or of the court that proceedings, possibly both lengthy and expensive, should proceed when the basis disclosed in the statement of claim is incapable of supporting the relief claimed. It is, of course, proper to proceed in such an application upon the basis that all that is required is a reasonably arguable case. In such circumstances it is proper that it should be permitted to proceed, but where a statement of claim and the ultimate facts asserted therein do not disclose even an arguable cause, whether through lack of locus standi or some other defect, the interests of justice require that the proceedings should be dealt with at the earliest stage to determine whether that is so or not.[20]

47 Warburton Environment has pleaded in para 1 of the SOC, ASOC or FASOC that it is an incorporated association and a registered charity. In para 2, it then asserts that it has a special interest in the protection of State forests in the Central Highlands, and consequently a special interest in the observance by VicForests of the limitations imposed by the legislature upon timber harvesting in the Central Highlands.

48 Warburton Environment has pleaded no facts that might support the conclusion that it has a special interest, and therefore standing. The statement of claim does not refer to the mission statement or activities of Warburton Environment.

49 In an exhibit, Warburton Environment states its mission as to:

(a) Facilitate links and networking, exchange and interaction within the community to support protection and restoration of ecosystems in the Central Highlands.

(b) Provide a space and opportunity for refining and promoting the vision of, and transition to sustainable development - through all forms of learning and public awareness.

(c) Develop strategies at every level in the community to strengthen capacity and action towards protection and restoration of eco-systems in the Central Highlands.

50 According to its written submissions, Warburton Environment's activities may be described as:

(a) active involvement in the Central Highlands Alliance, an environmental peak body for the region;

(b) practical activities directed at protecting the Central Highlands generally, including convening public forums and meetings...;

(c) convening public meetings in support of environmental issues affecting local issues in Mount St Leonards and Toolangi;

(d) lobbying for a cessation of logging in Melbourne's water catchments...;

(e) promoting the creation of a Great Forests National Park covering a substantial part of the Central Highlands including hosting public meetings, producing 'Great Forest National Park' calendars, and representing the Warburton region in the planning process for the proposed park;

(f) promotion of the Warburton to Walhalla track, which crosses the Central Highlands, and involvement, by invitation of Yarra Ranges Council, in preparation of a feasibility study for re-creation of the track; and

(g) submissions to the Bushfire Royal Commission and the Victorian Parliamentary Inquiry into Ecosystem Decline.

(a) Warburton Environment must show more than a mere intellectual or emotional concern;[21]

(b) the asserted interest must go beyond that of members of the public upholding the law and must involve more than genuinely held convictions;[22]

(c) Warburton Environment must gain some advantage other than the satisfaction of righting a wrong or upholding a principle if the action succeeds, or to suffer some disadvantage, other than a sense of grievance if the action fails;[23]

(d) an intention to engage in activities in the future does not determine the character of Warburton Environment's interests for the purposes of standing;[24]

(e) the mere allegation of non-compliance with a regulatory scheme will not be sufficient to confer standing on Warburton Environment;[25] and

(f) an opportunity to comment or be consulted on a proposed regulatory process is insufficient to confer standing.[26]

52 In relation to environmental bodies, VicForests submits:

(a) Warburton Environment cannot establish a special interest in the environment, and therefore standing, by formulating objects that demonstrate an interest in and commitment to the preservation of the physical environment;[27]

(b) enjoyment or amenity of public land is not sufficient;[28] and

(c) Warburton Environment is purporting to play the role of a de facto regulator of timber harvesting in the Central Highlands by enforcing the SF Act and associated instruments.

53 In relation to Warburton Environment's activities, VicForests submits:

(a) Warburton Environment has not been consulted by the government or had any influence in designing the regulatory scheme;

(b) to the extent that Warburton Environment has made submissions to public inquiries, there is no evidence that Warburton Environment's submissions were acted on by the government;

(c) Warburton Environment's approaches to members of Parliament were intended to oppose logging in the Central Highlands and not to provide input into the operation of the regulatory scheme;

(d) there is no evidence that meetings involving Warburton Environment occurred at the government's invitation, or that Warburton Environment's recommendations at those meetings were acted on;

(e) Warburton Environment does not receive a level of government funding indicative of a body entrusted with a regulatory role or that regarded by the government as representative of environmental interests;

(f) Warburton Environment is not a peak environmental organisation;

(h) Warburton Environment's history of activities in Warburton and the Central Highlands can be characterised as community education and awareness building; and

(i) Warburton Environment's advocacy for the creation of a new national park and walking track manifests only a diffuse interest in forests in the Central Highlands.

54 Warburton Environment's statement of claim does not set out the ultimate facts that it intends to prove at trial to establish standing.

55 It is necessary for the Court to have a sufficient degree of certainty as to the facts alleged to establish Warburton Environment's standing, the nature of the claim to be advanced, and the relief sought. This is not the case at present. It is not acceptable for the Court to have to sift through numerous affidavits and exhibits to identify possible facts that may relate to standing.

56 When Warburton Environment has filed an amended statement of claim that sets out the facts which are said to confer standing, it will be possible to determine this issue on an interlocutory basis.

57 VicForests submits that Warburton Environment cannot seek declaratory relief in relation to offences which it alleges were committed by VicForests.

58 The SOC and the ASOC sought declarations that VicForests had contravened s 45(1) of the SF Act. The FASOC seeks declarations that timber was harvested 'in contravention of laws in force in the place where the timber was harvested'.

59 The general rule is well established in relation to applications for declaration of criminal conduct in civil proceedings. While there is jurisdiction in a proper case to make a declaration that a defendant has committed a crime, such a declaration will not ordinarily be made because a criminal court is the proper forum for the question.[29] It is necessary to demonstrate exceptional circumstances before a civil court will grant declaratory relief in relation to allegations that may be the subject of criminal proceedings.[30]

60 The general rule is grounded in the need for fairness and justice. If a prosecution were initiated, VicForests would have the rights afforded to an accused including:

(a) the standard of proof in criminal proceedings;[31]

(b) the requirements contained in the Criminal Procedure Act 2009 (Vic);

(d) the time limit for a proceeding for an offence under s 92A of the SF Act;

(e) the power of the Director of Public Prosecutions to take over and discontinue a private prosecution to prevent abuse of process;[32] and

(f) the ability of a successful defendant to bring an action for damages for malicious prosecution.

61 The facts pleaded in the SOC and ASOC do not seek to establish that the circumstances are exceptional or provide any reason to depart from the general rule.

62 Furthermore, allegations of criminal offences must be proven beyond reasonable doubt, and not on the balance of probabilities as the standard for civil proceedings.

63 A fundamental problem for any prosecution dependent on the management action prescribed for Tree Geebung in the Standards is the ambiguity of the direction to '[p]rotect mature individuals from disturbance where possible'.

64 Another difficulty in any allegation of an offence under s 45(1) of the SF Act is the informant restriction on persons who can conduct prosecutions. Under s 96(1) of the CFL Act, only an authorised officer, police officer, or a person authorised by the Secretary[33] can prosecute for an offence under the SF Act. Warburton Environment is not authorised to be an informant under the legislation, and does not satisfy the informant restriction.

65 In AB Oxford Cold Storage Co Pty Ltd v Arnott, the Court of Appeal held that proof of authorisation is essential to the validity of a prosecution.[34] While not an element of an offence, it is necessary for the prosecutor to prove authorisation if objection is taken. The standard of proof of authorisation is on the balance of probabilities.[35]

66 There is a very important difference in substance between an offence where prosecutions can be brought by specified persons, and where anyone at all can bring a prosecution. In the first case, the prosecution can be dismissed if not brought by a specified person. In the second, the defendant is exposed to prosecution by any member of the public.[36]

67 Warburton Environment submitted that there was nothing unusual about a declaration in civil proceedings that a defendant's past conduct involved a breach of an Act. However the authorities relied on by Warburton Environment[37] are decisions of specialist courts acting under statutory enabling powers which do not assist me in this proceeding.

68 The allegations made by Warburton Environment that VicForests engaged in criminal conduct contrary to s 45(1) of the SF Act must be struck out.

69 In the FASOC, Warburton Environment abandons allegations that VicForests engaged in criminal conduct under s 45(1) of the SF Act. Instead, Warburton Environment's submissions of 24 September 2020 allege that VicForests has engaged in criminal conduct under s 15 of the Illegal Logging Prohibition Act 2012 (Cth) ('ILP Act'). The prayer for relief in the FASOC is consistent with this allegation although s 15 is not mentioned.

70 In s 7 of the ILP Act, 'illegally logged' in relation to timber is defined :

harvested in contravention of laws in force in the place (whether or not in Australia) where the timber was harvested.

71 The expression 'illegally logged' is defined by reference to the harvesting of timber and the laws in force in the place where the timber was harvested.

(1) A person commits an offence if:

(a) the person processes a raw log into something other than a raw log; and

(b) the person is a constitutional corporation...;and

(c) the raw log is illegally logged;

...

Penalty: 5 years imprisonment or 500 penalty units, or both.

73 The general rule that a declaration of criminal conduct by a defendant will not ordinarily be made in a civil proceeding applies regardless of whether the offence is under State or Commonwealth law. Under the Commonwealth Criminal Code,[38] similar considerations of fairness and justice apply to accused persons under Commonwealth laws as under State laws.

74 The facts pleaded in the FASOC are not sufficient to demonstrate exceptional circumstances, nor do they provide any reason to depart from the general rule. The standard of proof required of a contravention of s 15(1) is beyond reasonable doubt. It would be unfair to VicForests to make a determination of guilt or innocence of an offence under s 15(1) on the balance of probabilities in a civil proceeding.

75 In any prosecution under s 15(1), it must first be shown that timber has been unlawfully harvested. As I have said, a fundamental problem is the ambiguity of the direction to '[p]rotect mature individuals from disturbance where possible'.[39]

76 Section 15(1) is concerned with the processing of illegally logged timber. It requires that the accused person be a processor of a raw log into something else. The ILP Act fundamentally distinguishes between harvesting and processing. There is no definition in the ILP Act of 'processing', making it difficult to determine whether particular conduct of an entity falls or is likely to fall within the scope of the ILP Act.[40]

77 The FASOC does not plead the facts necessary to show that VicForests is a processor of timber. VicForests operates under the constraints and limitations imposed by pt 3 of the SF Act. Apart from harvesting and selling timber, VicForests is confined to the permitted associated management activities specified in s 13 of the SF Act. None of the permissible management activities specified in s 13(b)(i)-(iv) constitutes the processing of raw logs.

78 In the FASOC's prayer for relief, Warburton Environment seeks declarations that the timber harvested by VicForests was harvested 'in contravention of laws in force in the place where the timber was harvested'. The FASOC does not refer to the law or laws said to have been contravened. I am not minded to entertain such a form of declaration as it is too general and ambiguous.

79 Allegations of criminal conduct against VicForests in the FASOC are likely to fail without further clarification. Unless Warburton Environment can plead a claim that has a real prospect of success, there is no benefit in letting these claims proceed to trial.

80 Objection was taken to the late service of Mr Kriek's affidavit. I have not relied on this affidavit in preparing these reasons. Warburton Environment has now been served with this affidavit. There is no reason why VicForests cannot rely on this affidavit in any future application.

81 The SOC, ASOC and FASOC are all defective and must be revisited.

82 Warburton Environment must bring forward an amended statement of claim that addresses the concerns that I have mentioned. I will then determine on an interlocutory basis whether Warburton Environment has sufficient standing to proceed with the claims that are then made.

VicForests' summonses dated 10 and 31 August 2020

83 The SOC and ASOC must be re-pleaded. They are not satisfactory for the reasons I have set out.

84 On VicForests' summons dated 10 August 2020, I will order that the amended statement of claim filed 4 August 2020 be disallowed. I will grant Warburton Environment leave to bring forward a proposed amended statement of claim. The summons will otherwise be dismissed.

85 There is no need for the orders in VicForests' summons filed 31 August 2020 and for summary judgment in respect of the claims for declarations in paras BB, B and C of the prayer for relief as those claims are not pursued by Warburton Environment in the FASOC. VicForests' summons filed 31 August 2020 will be dismissed.

Warburton Environment's summons filed 18 September 2020

86 This summons relates to the Harley, Ben 10 and Fireman Sam coupes, and was the subject of orders made on 23 September 2020. It has been subsumed by the relief sought in Warburton Environment's summons filed 5 October 2020.

87 Save for the orders made on 23 September 2020, the summons will be dismissed.

Warburton Environment's summons filed 24 September 2020

88 This summons seeks leave to file the FASOC. It is not satisfactory for the reasons that I have given. The summons will be dismissed.

Warburton Environment's summons filed 5 October 2020

89 Warburton Environment seeks restraining orders applicable to all coupes in the Central Highlands region or located within 5km of an identified Tree Geebung.

90 It is appropriate to give the parties the opportunity to consider these reasons, and for Warburton Environment to bring forward its proposed amended statement of claim. The Court will then provide an opportunity for the parties to be further heard. Warburton Environment's summons filed 5 October 2020 will be adjourned to a future date.

[2] Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929, 933-4 (Lord Reid). See also Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528, 531 (Murphy J); Meade v Nillumbik Australia Pty Ltd & Anor (Ruling) [2019] VSC 786, [43] (Cavanough J); Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd [2020] VSC 345, [33] (Garde J).

[15] (1980) 146 CLR 493, 530-1 ('ACF').

[16] [2020] VSCA 172 ('Maguire').

[17] Ibid [64]-[67] (citations omitted).

[18] Ibid [76]-[81] (citations omitted).

[19] See North Coast Environment Council Inc v Minister for Resources (No 2) [1994] FCA 1556; (1994) 55 FCR 492 ('North Coast'); Environment East Gippsland Inc v VicForests [2010] VSC 335; (2010) 30 VR 1 ('Environment East Gippsland'); Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425; Friends of Leadbeater's Possum Inc v VicForests (No 6) [2020] FCA 1199; Environment East Gippsland Inc v VicForests [2009] VSC 386; Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government and MidCoast Council (No 2) [2019] NSWLEC 202; WOTCH Inc v VicForests (No 6) [2020] VSC 674.

[21] Citing ACF (n 15) 530; Maguire (n 19) [63].

[25] Citing North Coast (n 19) 512; Environment East Gippsland (n 19) [78].

[26] Citing ACF (n 15) 505 (Aickin J), 531 (Gibbs J), 541-6 (Stephen J); North Coast (n 19) 512; Environment East Gippsland (n 19) [78].

[29] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1; Imperial Tobacco Ltd v Attorney General [1981] AC 718; Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) 15 NSWLR 596; Inglis v Moore (1979) 46 FLR 3.

[30] Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487, 494 [24] (Finkelstein J); The Pharmacy Guild of Australia v Ramsay Health Care Ltd [2019] NSWSC 1045, [167] (Ward CJ).

[36] Director, Transport Safety v Metro Trains Melbourne Pty Ltd (2019) 58 VR 355, 368-9 [49].

[37] Donnelly v Solomon Islands Mining NL [2002] NSWLEC 112; (2002) 121 LGERA 264, 291; Woolworths Ltd v The Warehouse Group (Australia) Pty Ltd (No 2) [2003] NSWLEC 72, [7]-[8]; Bankstown City Council v Le [2003] NSWLEC 362; (2003) 133 LGERA 155, 167; Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383, 390-1 [18].

[38] Criminal Code Act 1995 (Cth) Schedule.

[39] Standards, Table 14, 94. See [14], [23].

[40] Department of Agricultural and Water Resources, Statutory review of the Illegal Logging Prohibition Act 2012 (Review report, November 2018) 29.

Court (General Civil Procedure) Rules 2015

Forests (Timber) Act 2004

Forests and Lands Act 1987

Logging Prohibition Act 2012

Owned Enterprises Act 1992

Fauna Guarantee Act 1988

Prosecutions Act 1994

(2002) 121 LGERA 264

(2003) 133 LGERA 155

(2004) 138 LGERA 383

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