Plaintiff v Defendant

2 During the course of the hearing in the present proceeding on 25 November 2021, the scale of the relief sought by the plaintiffs in the EEG proceeding and the Kinglake proceeding was substantially reduced. The plaintiff in the EEG proceeding withdrew its application for interim injunctive relief. It seeks an order adjourning its summons to 13 December 2021 to be heard by Richards J together with the summonses adjourned by Incerti J. The plaintiff in the Kinglake proceeding withdrew its application for interim injunctive relief in respect of 15 of the 16 coupes identified in the summons filed on 24 November 2021. It seeks an order that the application for interlocutory injunctive relief in respect of these 15 coupes be adjourned to 13 December 2021 to be heard by Richards J.

3 In its modified form, the relief sought by the plaintiff in the Kinglake proceeding is an interim injunction restraining VicForests from conducting timber harvesting operations in the 'Rookery' coupe, until such time as VicForests conducts a survey in accordance with prescribed criteria.

4 The plaintiff in the Kinglake proceedings submits that there is a serious issue to be tried in that the harvesting of timber in the Rookery coupe, which is scheduled to commence on 2 December 2021, will breach a public duty imposed upon VicForests by s 46(a) of the Sustainable Forests (Timber) Act 2004 read in conjunction with the Code of Practice for Timber Production 2014 ('the Code'). The plaintiff submits that the Code imposes an obligation upon VicForests not to engage in timber harvesting without first undertaking surveys to identify the population density and habitat of the Greater Glider.

5 The Greater Glider is the largest Australian gliding mammal with a head and body length of 35-46 centimetres and a long, furry, non-prehensile tail measuring 45-60 centimetres.[1] The Greater Glider was listed as threatened under the Flora and Fauna Guarantee Act 1988 in June 2017.[2] In 2019 the Department of Environment, Land, Water and Planning ('the Department') published an action statement in respect of Greater Gliders. The statement refers to evidence of an annual decline in the number of Greater Gliders in the Central Highlands region over a 12-year period up to 2011 averaging 8.8%.[3] The action statement also notes that the Victorian Government has commenced a program of pre-harvest surveys 'designed to ensure that the threatened species and communities are correctly identified and protected in accordance with the Code of Practice for Timber Production 2014'.[4]

6 Timber harvesting operations are scheduled to commence in the Rookery coupe on 2 December 2021. On 18 November 2021 the Department published a report of a survey conducted in the Rookery coupe between 9 and 15 November 2021 ('FPSP survey'). The FPSP survey identified 12 Greater Gliders. The survey was confined to Greater Gliders observed along a survey line, a transect, approximately 2 kilometres in length. The plaintiff points to the FPSP survey as evidence of the presence of Greater Gliders in the Rookery coupe. However, it submits that because the FPSP survey was confined to a very small proportion of the Rookery coupe (which exceeds 36 hectares in size), it does not give any meaningful indication of the true extent of Greater Glider population and habitat in the Rookery coupe.

7 The plaintiff submits that in conducting timber harvesting operations in the Rookery coupe, VicForests is subject to a mandatory obligation to comply with the 'Precautionary Principle' prescribed by s 2.2.2.2 of the Code. This section is as follows:

The precautionary principle must be applied to the conservation of biodiversity values. The application of the precautionary principle will be consistent with relevant monitoring and research that has improved the understanding of the effects of forest management on forest ecology and conservation values.

Note:

It is intended by the definition of the precautionary principle and section 2.2.2.2 that the precautionary principle and its application in section 2.2.2.2 be understood as it was by Osborn J in Environment East Gippsland Inc v VicForests [2010] VSC 335 (in relation to the precautionary principle as it appeared in the Code of Practice for Timber Production 2007).

8 The Precautionary Principle is defined in the Code's glossary as follows:

'[P]recautionary principle' means that 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.

In the application of the precautionary principle, decisions by managing authorities, harvesting entities and operators must be guided by:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

(ii) an assessment of the risk-weighted consequences of various options.

The definition includes the same note contained in s 2.2.2.2 to the effect that the definition is to be understood as it was by Osborn J (as his Honour then was) in Environment East Gippsland Inc v VicForests.[5]

9 The plaintiff submits that the harvesting of timber in the Rookery coupe will contravene the Precautionary Principle. It submits that, absent a comprehensive survey, timber harvesting will result in destruction of Greater Glider habitat and the death of Greater Gliders. VicForests accepts that it is obliged to comply with the Precautionary Principle. However, it submits that the proposed timber harvesting in the Rookery coupe will not contravene the Precautionary Principle. VicForests places particular weight on the Department's Greater Glider action statement. The statement includes a section titled 'Conservation objectives, measures and intended management actions'. One of the prescribed objectives of intended management actions is to 'secure populations or habitat from potentially incompatible land use or catastrophic loss'.[6] Under this objective, the following statement appears:

Retain at least 40% of the basal area of eucalypts across each timber harvesting coupe, prioritising live, hollow bearing trees, wherever a density of Greater Gliders equal to or greater than five individuals per spotlight kilometre (or equivalent measure) is identified. Note that this prescription replaces the existing requirement to establish a Special Protection Zone in cases where greater than 10 individuals per spotlight kilometre (or equivalent measure) are detected in the East Gippsland Forest Management Area.[7]

VicForests is identified as having responsibility to implement the requirements set out above.

10 During the hearing on 25 November 2021, VicForests proffered an undertaking that when harvesting the Rookery coupe it will retain a minimum of 40% of the basal area of eucalypts across the coupe. VicForests submits that its harvesting of the Rookery coupe will not contravene the Precautionary Principle because it will comply with the management action prescribed in the action statement which has the objective of securing population and habitat of Greater Gliders from potentially incompatible land use. In this regard, VicForests relies upon the judgment of Osborn JA in MyEnvironment Inc v VicForests[8] where his Honour stated:

(a) if it is accepted that prescriptions relate to coupes which have been produced by 'a balanced planning exercise which takes account of considerations of ecologically sustainable development',[9] and

(b) if it is further accepted that logging will comply with the prescriptions designed to protect habitat within these coupes,

The plaintiff will '[face] a difficult task in establishing that logging will breach the precautionary principle'.[10]

11 VicForests submits that by harvesting the Rookery coupe in accordance with the undertaking it has proffered it will be complying with prescriptions designed to protect habitat and population of Greater Gliders within the Rookery coupe.

12 It is contestable whether the retention of at least 40% of the basal eucalypts across the Rookery coupe will comply with cl 5 of the action statement. Clause 5 requires retention of at least 40% of the basal area of eucalypts across the Rookery coupe 'prioritising live, hollow bearing trees, wherever a density of Greater Gliders equal to or greater than five individuals per spotlight kilometre (or equivalent measure) is identified'.[11]

13 The obligation imposed by cl 5 is not simply the retention of at least 40% of the basal area of eucalypts. Clause 5 requires VicForests to prioritise the retention of live hollow bearing trees wherever a density of Greater Gliders equal to, or greater than five individuals per spotlight kilometre (or equivalent measure) is identified. Absent VicForests undertaking a survey of all of the Rookery coupe, it is not readily apparent how the objective of prioritising the retention of Greater Glider habitat, wherever there are five Greater Gliders per spotlight kilometre, could be achieved. The reference to 'five individuals per spotlight kilometre' is plainly a reference to Greater Gliders identified as a result of a survey using spotlights.

14 It is arguable that timber harvesting in the Rookery coupe in accordance with the undertaking proffered by VicForests would not comply with cl 5 of the action statement. As such, I do not accept that the reasoning of Osborn JA in MyEnvironment Inc v VicForests, upon which VicForests relied, is applicable in circumstances where VicForests harvests up to 60% of the Rookery coupe without first identifying the population density and habitat of Greater Gliders throughout the entirety of the coupe.

15 In light of this conclusion, it is not necessary to express any concluded view in respect of the plaintiff's contention that, as cl 5 of the action statement does not have legislative force, the retention of 40% of basal eucalypts in a coupe does not satisfy the Precautionary Principle. It is common ground that, unlike the Code, the action statement is not a legislative instrument. It is arguable that the prescription of 40% of basal eucalypts in the action statement is not determinative of the level of habitat retention necessary to comply with the Precautionary Principle. It is unnecessary to further address the issue of what level of basal eucalypt retention is necessary to comply with the Precautionary Principle. For the purposes of the present application, it is sufficient to record my conclusion that it is arguable that cl 5 of the action statement supports the plaintiff's proposition that, in order to comply with the Precautionary Principle, VicForests must undertake spotlight surveys throughout all the Rookery coupe in order to first identify the Greater Glider population density and thereafter prioritise habitat retention.

16 The principles governing the grant of interlocutory injunctions are well established. The principles are set out in the joint judgment of Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill.[12] An applicant for an interlocutory injunction must establish a prima facie case. This does not require an applicant to show that it is more probable than not that at trial the plaintiff will succeed. Rather, it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo.[13] The requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.[14]

17 I am satisfied that the plaintiff has established sufficient prospects of success to justify the preservation of the status quo. The Greater Glider is a threatened species. The plaintiff has established a serious issue to be tried in that, if VicForests undertakes timber harvesting in the Rookery coupe without first surveying all of the coupe, there is a risk of serious environmental damage. That risk is comprised of the potential for destruction of Greater Glider habitat.

18 Timber harvesting is scheduled to commence in the Rookery coupe on 2 December 2021. I was informed by Mr Redd, who appeared with Ms Douglas for VicForests, that harvesting of the coupe, with retention of at least 40% of basal eucalypts, will take approximately 6 weeks. The order will restrain VicForests from undertaking any timber harvesting in the Rookery coupe until the hearing and determination of the plaintiff's application for interlocutory (as opposed to interim) relief which is listed for hearing on 13 December 2021. The order is likely to operate for a period of less than 2 weeks. VicForests will have the opportunity on 13 December 2021 to advance submissions as to why the order should not be extended beyond that date.

19 The practical consequences of the order will be to maintain the status quo of there being no harvesting in the Rookery coupe until the determination of the plaintiff's summons listed for hearing on 13 December 2021. If VicForests can persuade Richards J that the order should not be extended beyond that date, the practical effect of the order will be to delay, for a short period, timber harvesting operations in the Rookery coupe. I accept Mr Redd's submission that any delay will have an impact upon VicForests' capacity to meet its contractual supply obligations to third parties. However, that prejudice is ameliorated by the absence of any restraining orders in relation to the 34 coupes in respect of which the plaintiffs in the Kinglake and EEG proceedings do not press applications for injunctions at the present time.

20 I do not propose to make orders in the terms made by Incerti J on 17 November 2021 which permit timber harvesting subject to VicForests undertaking surveys in accordance with prescribed criteria. The CEO of VicForests deposed that VicForests has no capacity to undertake surveys of the kind set out in the orders made by Incerti J prior to 13 December 2021.[15] On the basis of this evidence, there is no utility in permitting harvesting in the Rookery coupe subject to prescribed criteria. Whether harvesting should be permitted in the Rookery coupe subject to any, and if so, what, criteria is a matter which can be addressed by the parties on 13 December 2021 before Richards J. It goes without saying that in the intervening period prior to the hearing on 13 December 2021 VicForests is free to undertake any survey of the Rookery coupe it deems appropriate.

21 In the Kinglake proceeding, I shall order as follows:

Upon the plaintiff by its counsel giving an undertaking to abide by any order the Court may make as to damage, in case the Court should hereafter be of the opinion that the defendant shall have suffered any loss by reason of this order:

1. Until the determination of the plaintiff's summons dated 23 November 2021, which is listed for hearing on 13 December 2021, or further order, the defendant must not, whether by itself, its servants, agents, contractors or howsoever otherwise, conduct timber harvesting operations within the meaning of s 3 of the Sustainable Forests (Timber) Act 2004 (Vic) in coupe 379-505-0001 ('Rookery').

(a) felling or cutting trees or parts of trees in order to address a serious risk to human safety; and/or

3. Orders 6 to 9 of the order of the Honourable Justice Incerti made 17 November 2021 are vacated.

4. The further hearing of the plaintiff's summons filed 24 November 2021 is adjourned to 10.30am on 13 December 2021.

5. By 4.00pm on 3 December 2021, the defendant file and serve any affidavit material in relation to the plaintiff's summonses filed 17 November 2021 and 24 November 2021 ('summonses').

6. By 4.00pm on 7 December 2021, the plaintiff file and serve any affidavit material in reply.

7. By 4.00pm on 9 December 2021, the plaintiff file and serve submissions in relation to the summonses.

8. By 4.00pm on 10 December 2021, the defendant file and serve submissions in relation to the plaintiff's summons filed 24 November 2021.

22 In relation to the EEG proceeding, I propose to order as follows:

1. The further hearing of the plaintiff's summons filed 24 November 2021 be adjourned to 10.30am on 13 December 2021.

2. By 4.00pm on 3 December 2021, the defendant file and serve any affidavit material in relation to the plaintiff's summonses filed 17 November 2021 and 24 November 2021 ('summonses').

3. By 4.00pm on 7 December 2021, the plaintiff file and serve any affidavit material in reply.

4. By 4.00pm on 9 December 2021, the plaintiff file and serve submissions in relation to the summonses.

5. By 4.00pm on 10 December 2021, the defendant file and serve submissions in relation to the plaintiff's summons filed 24 November 2021.

7. Any submission by the defendant as to the costs of the summons filed 24 November 2021, not exceeding five pages, is to be filed by 4.00pm on 6 December 2021.

8. Any submission in reply by the plaintiff, not exceeding five pages, is to be filed by 4.00pm on 10 December 2021.

[1] Department of Environment, Land, Water and Planning, Greater Glider (Action Statement No 267, 2019) 3 ('Greater Glider Action Statement').

[5] [2010] VSC 335.

[6] Greater Glider Action Statement (n 1) 9.

[8] [2012] VSC 91.

[11] Greater Glider Action Statement (n 1) 9.

[12] [2006] HCA 46; (2006) 227 CLR 57, 81-4 [65]-[72] (Gleeson CJ and Crennan J agreeing at 68 [19]).

[15] Defendant, 'Affidavit of Monique Dawson', 24 November 2021, [49].