(a) For the greater glider, Dr Wagner's opinion was that a 2.6 hectare exclusion area would be adequate, based on its average home-range size in mature forests; Associate Professor Wardell-Johnson concluded that 'less than 3 hectares would be inadequate', but approximately three could be appropriate. > > (b) For the yellow-bellied glider, which is a more mobile creature, there is far less certainty about its home range. The experts agreed that, rather than retaining a particular sized area for its habitat, it would be more appropriate to retain habitat features within a harvesting area.

The effect of the foregoing is that the experts opined that, to protect local populations of gliders from the effects of timber harvesting, a significant percentage of the basal area of the harvested part of a coupe should be retained (where the percentage is determined by the characteristics present in that coupe), along with an exclusion area of approximately 3 hectares around the known location of a greater glider.

1. As to the need to identify gliders in order to protect them from the effects of timber harvesting, the submissions recorded that the experts agreed that to adequately plan for habitat retention and appropriate silvicultural methods, it was necessary to know where in a coupe gliders occurred and that single survey transepts might be insufficient to reveal the location of gliders throughout an entire coupe.
2. These submissions should be considered against the findings of the judge in relation to the manifest inadequacy of the measures applied by VicForests. In relation to the greater glider, her Honour noted the following matters:

(a) VicForests only applies the 40 per cent retention prescription where three or more greater gliders are detected per spotlight kilometre. The evidence revealed no scientific basis for this detection threshold. > > (b) Similarly, in the East Gippsland FMA, VicForests only sets aside 100 hectares of suitable habitat where surveys have detected more than ten greater gliders per spotlight kilometre. Again, I could discern no scientific basis for this detection threshold in the evidence... > > (c) Where a greater glider has been detected, VicForests does not necessarily set aside any area of habitat centred on the location of the detection, in order to preserve the glider's home range. ... > > (d) The 40% retention prescription in the Greater Glider Action Statement is wholly inadequate for the protection of greater gliders within a coupe. The 2000 study by Dr Kavanagh, on which the prescription is apparently based, recommended at least 40% basal retention in addition to the retention of riparian buffers. The 40% retention prescription involves retention of 40% of the basal area of eucalypts across the entire coupe, including riparian buffers. In addition, the 40% retention prescription can be applied without reference to the location of a glider's home range, and so may not preserve this critical habitat. > > (e) VicForests' variable retention harvesting methods were not shown to be effective to conserve greater glider populations in harvested coupes. VicForests led no evidence that its variable retention systems were developed by reference to 'relevant monitoring and research' or the 'advice of relevant experts and relevant research in conservation biology and flora and fauna management'. The high point was a reference to a literature review of similar systems internationally and in Tasmania, conducted by a forest consulting firm. To date there has been only rudimentary evaluation of the impact of variable retention harvesting on greater gliders, in the form of VicForests' post-harvest survey program. As discussed, no reliance can be placed on a conclusion drawn from that program that greater gliders persist in coupes logged using variable harvesting. > > (f) Far from demonstrating that variable retention harvesting is effective to conserve greater gliders, the available evidence is that it is of no short or medium term benefit to them. > > (g) The [respondents] sought to demonstrate that the retained basal area of eucalypts in the harvested area of four coupes harvested using the VR1 harvesting method was between 8 and 11%. Both ecologists considered a basal area retention of 10% to be in effect clearfall harvesting. Accepting that there is some margin for error in the [respondents'] calculations, the retained basal area that is planned in all four coupes is much lower than Dr Wagner considered necessary to conserve greater gliders - generally 60% or more.[103]

3. In relation to yellow-bellied gliders, her Honour noted the following:

(a) The detection of yellow-bellied gliders in a coupe scheduled for harvest in the Central Highlands FMAs does not result in VicForests retaining any area of habitat for those gliders. > > (b) In the East Gippsland FMA, VicForests only sets aside 100 hectares of suitable habitat where surveys have detected a 'relative abundance' of yellow-bellied gliders - that is, more than five per spotlight kilometre. ... The basis for the detection threshold of five per spotlight kilometre was not explained by the ecologists, or by other evidence. It was Associate Professor Wardell-Johnson's opinion that an area of habitat should be retained where a family group of three or more yellow-bellied gliders is detected. > > (c) Where the detection threshold is triggered in East Gippsland, the 100 hectares of suitable habitat that VicForests sets aside is not necessarily centred on where the yellow-bellied gliders have been detected ... > > (d) While VicForests' Habitat Tree Survey Guidelines direct attention to hollow-bearing trees, its pre-harvest habitat tree surveys do not presently attempt to identify and plot the locations of sap-feed trees used by yellow-bellied gliders ... > > (e) VicForests' variable retention harvesting methods were not shown to be effective to conserve yellow-bellied glider populations in harvested coupes. VicForests did not seek to demonstrate that its variable retention systems were developed by reference to 'relevant monitoring and research' or the 'advice of relevant experts and relevant research in conservation biology and flora and fauna management'. Nor was there any suggestion that VicForests had attempted to evaluate the impact of variable retention harvesting on yellow-bellied gliders. > > (f) To the contrary, the available evidence is that variable retention harvesting is of no short or medium term benefit to gliders. > > (g) As discussed in relation to greater gliders, variable retention harvesting as it is practised by VicForests may involve the retention of as little as 10% of the basal area in the harvested area of a coupe, the equivalent of clearfelling. Both VR1 and VR2 harvesting methods are much more intensive than the 60% basal area retention recommended by Dr Wagner for the conservation of yellow-bellied gliders. Associate Professor Wardell-Johnson considered that the use of VR1 and VR2 harvesting methods proposed in Wolpertinger coupe in East Gippsland would not effectively address risks from logging operations, and that gliders inhabiting the harvestable area of the coupe would almost certainly die as a direct result of the logging operation - from predation, starvation, or exposure.[104]

4. The judge's findings concerning VicForests' failure to take effective measures to preserve gliders at a coupe level (and at a landscape level) were not challenged. Much of the evidence supporting those findings came from VicForests' own expert. In these circumstances, it was well open to the judge, having found that the precautionary principle required the identification and preservation of gliders in coupes that were to be harvested, to grant injunctive relief requiring minimum standards to be met before any harvesting could take place.
5. Optimally, standards would be set on a coupe-by-coupe basis. But that was not how the case was presented to the judge. The respondents, who have a special interest in the preservation of the forests that are subject to harvesting, submitted that VicForests' harvesting methods overall were manifestly inadequate to protect and conserve the gliders. The expert evidence strongly supported that proposition. As her Honour said:

The [respondents] seek injunctions to preserve the native forests of East Gippsland and the Central Highlands, in which they have a special interest. They specifically seek injunctions in order to secure VicForests' compliance with provisions of the Code that require it to apply the precautionary principle to the conservation of biodiversity values, to identify biodiversity values during planning, and to take management actions to address risks to those values. The [respondents] have made out their case that VicForests' current practices do not comply with these provisions in relation to greater gliders and yellow-bellied gliders, and that it intends to continue those practices in its future timber harvesting operations in East Gippsland and the Central Highlands. That is a sufficient basis to grant injunctive relief.[105]

1. We agree with her Honour's conclusion. Both experts gave their evidence as to what was required to protect the species in the context of timber production. They gave their evidence in relation to 'the logging regime currently in place' and agreed that in order to protect the gliders in the context of timber production, it was necessary to know where they were. Once gliders were identified, there then needed to be measures to ensure their survival in the context of the harvesting of the coupe. We consider that it was well open to the judge to find on their evidence that surveys had to be conducted using a method (unprescribed) likely to identify the presence of any gliders. We also consider the evidence to support her Honour's finding that 60 per cent basal retention and the exclusion of greater gliders' home ranges and riparian strips was necessary in order to comply with ss 2.2.2.2 and 2.2.2.4 of the Code, having regard to the threats to the species and the lack of scientific certainty identified.
2. For completeness, in its written case to this Court, when submitting that the injunctions exceeded the experts' recommendations, VicForests added that, in relation to the retention of riparian strips, 'they never considered the definition of "waterways" in the Code, which includes "drainage lines"'. No further explanation was given of that submission, nor was it raised in VicForests' oral submissions. In their oral submissions, the respondents drew attention to the fact that VicForests appeared to have withdrawn its submission in relation to drainage lines. VicForests made no attempt to revive it in reply. Accordingly, we will not discuss it further.

Ground 2: Was the necessary equity to attract injunctive relief established?

1. Ground 2 was substantially argued as a corollary of grounds 1 and 5.
2. The principal submission, in support of ground 2, was that relied on in support of ground 1. VicForests submitted that in order to be entitled to injunctive relief, the respondents were required to make out their claim. It was submitted that the respondents' claim was not, as the judge had characterised it, that VicForests' current surveying and harvesting practices did not comply with its obligations under ss 2.2.2.2 and 2.2.2.4 of the Code. Rather, the claim by the respondents was that VicForests was acting unlawfully, by not taking the measures specified in the respondents' pleadings and in the specific relief sought in those pleadings. For the reasons we have stated in considering ground 1, that submission is not made out.
3. As an additional submission, VicForests' counsel contended that, in a case involving an asserted breach of public law, the principles relating to the grant of injunctive relief, as expressed by the High Court in Bridgewater v Leahy,[106] do not apply with the same degree of flexibility as in a case in which a plaintiff claims equitable relief in respect of a private wrong. In particular, it was submitted, those principles do not establish that equity will intervene to mould relief for a plaintiff who has failed to make out a case for the relief that is specifically claimed by it. Rather, it was submitted, a public law injunction will only issue to prevent the particular threatened wrong that is asserted by the plaintiff.
4. Counsel for VicForests did not refer to any authority in support of that contention, namely, that, in a case in which relief is sought for a contravention of 'public law', a court of equity is constrained to granting relief that is confined to the precise form of relief that is sought by the applicant. Nor did counsel rely on any recognised principle in support of such a proposition.[107]
5. Both at the trial and on this application for leave to appeal, it was accepted that the respondents had the requisite standing to seek equitable relief in respect of the threatened contravention by the applicant of the relevant provisions of the Code. Accordingly, it was accepted that the respondents each had a 'special interest' in the subject matter of the litigation, that is, an interest that was over and above that enjoyed by the public generally.[108] It follows that the respondents had an interest, recognised at law, that entitled them to obtain relief which was directed to securing compliance by VicForests with the provisions of the Code, and the statutory framework that governed logging in the East Gippsland and Central Highlands regions.[109]
6. For the reasons which we have discussed in considering ground 1,[110] the judge, based on the evidence, concluded that the measures proposed to be taken by VicForests did not comply with its statutory obligations, and, in particular, with ss 2.2.2.2 and 2.2.2.4 of the Code. Further, as we have concluded in respect of ground 5,[111] based on the judge's conclusions as to the evidence, the injunctions ultimately granted by her Honour were not in any way in excess of the minimum relief necessary to ensure compliance by the applicant with the statutory provisions in question.
7. It follows that, contrary to the submissions advanced on behalf of VicForests, the judge was correct to hold that the respondents had established the necessary equity to attract the injunctive relief that was granted by her Honour.
8. Accordingly, VicForests has failed to establish ground 2.

Ground 6: Were the declarations and injunctions impermissibly imprecise and uncertain?

1. This ground alleges both impermissible imprecision and uncertainty in both the declarations that were made and the injunctions that were granted.

1. In relation to the declarations, VicForests relied on the following statement of principle in Warramunda Village Inc v Pryde:

The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. The remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment.[112]

1. In VicForests' submission, the declarations do not comply with that principle. It pointed in particular to the first declaration, which is as follows:

For the purposes of both the management action for the greater glider and the management action for the yellow-bellied glider in the East Gippsland [FMA] in Table 13 of the Standards, a protection area of 100 hectares of suitable habitat should be designed having regard to the Suitable Habitat principles.

1. As noted earlier, the Suitable Habitat principles are defined to mean the ten principles set out in Annexure A to the Final Orders. They are principles drafted by Associate Professor Wardell-Johnson.
2. VicForests contended that the first declaration, by its terms, is in the nature of guidance, which is not the proper role for declaratory relief. It pointed out that the declaration was intended to give effect to the judge's conclusion that the Suitable Habitat principles provide a sound scientific basis informed by relevant research to 'guide' decisions about what constitutes a suitable protection area.[113]
3. Counsel for the respondents submitted that in making the declarations, the primary judge sought to balance the need for certainty and clarity and the need for flexibility. That was an appropriate exercise of her discretion. All that is required is that 'the terms of a declaration are sufficiently certain as to resolve the question in issue ... [a]nd the grant of the declaration must serve some purpose'.[114] Here, it was submitted, the impugned declaration provided VicForests with the criteria needed to ensure that the management actions required by Table 13 of the Standards could be taken. This was necessary because the description of the management actions in Table 13 employed terms, such as 'suitable habitat', which it failed to define.
4. As for the injunctions in both proceedings, VicForests submitted that in moulding the appropriate form of relief, a court must ensure that the terms of the injunction are 'very precise' and capable of being clearly understood so that those who must comply (on pain of contempt) know what is required of them. In the present case, however, the injunctions contain standards that are 'vague and evaluative' despite the fact that the injunctions are prescriptive and expressed in mandatory terms.
5. VicForests referred to the injunction requiring surveying for gliders. It will be recalled that it is in the following form:

VicForests must not ... conduct timber harvesting operations in any coupe in the [relevant FMA] unless the coupe has been surveyed using a reasonably practicable survey method that is likely to:

(a) detect any greater gliders that may be present in the coupe, and so far as is reasonably practicable, located their home ranges; and

(b) detect any yellow-bellied gliders that may be present in the coupe and identify their feed trees and hollow-bearing trees in the coupe.

1. VicForests submitted that it is not clear how it is to determine whether a survey is 'a reasonably practicable survey method' that is 'likely to detect' any gliders.
2. Although the respondents accepted that the terms of an injunction ought to be certain, they argued that the discretion to formulate the terms of a final injunction is wide.[115] It was open to the primary judge to 'leave room for evaluative judgment' on the part of VicForests. In this respect, it is the duty of the party bound by the injunction to 'loyally comply' with it and if that party seeks to 'skirt around the edge of it', it must bear the consequences.
3. Finally, VicForests submitted that the judge erred in failing to accept its submission that the injunction in question impermissibly seeks to restrain the commission of a criminal offence and in concluding that, in any event, there were 'exceptional circumstances' justifying the grant of such injunctive relief.
4. The additional proposition on which VicForests relied to resist the injunctive relief sought is that, other than in exceptional circumstances, the Court should refuse to grant relief restraining the breach by a public authority of a statutory prescription or proscription, where the breach attracts criminal liability. It relied on the authority of Commonwealth v John Fairfax & Sons Ltd.[116] In that case, the plaintiff sought to restrain the publication of certain matters on the basis of, among other things, a threatened breach of an offence in the Crimes Act 1914 (Cth) concerning the disclosure of confidential government information. Mason J stated that '[t]he issue of an injunction to restrain an actual or threatened breach of criminal law is exceptional'.[117] His Honour approved statements in Gouriet v Union of Post Office Workers to the effect that such exceptional circumstances were 'confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty ... or to cases of emergency'.[118] Mason J went on to observe that, in some cases, a statute which prohibits and penalises some conduct may be enforceable by injunction, and that this is more likely to be the case where the statute, in addition to creating a criminal offence, is designed to provide a civil remedy to protect the interest relevantly sought to be protected by way of injunctive relief - in that case, the government's right to confidential information.[119]
5. In regard to the actual or threatened breach of the criminal law, VicForests pointed to s 45 of the Timber Act, which prohibits any person from undertaking timber harvesting operations other than in accordance with (amongst other things) an allocation order. VicForests pointed out that it is a condition of the allocation order pursuant to which it harvests timber that it comply with the Code. It submitted that, as a consequence, any person who, in undertaking timber harvesting operations, fails to comply with the Code thereby fails to act in accordance with the allocation order and will commit an offence against s 45(1). It follows that, in substance, the injunctions seek to restrain conduct which is in any event the subject of a statutory proscription attended by criminal sanctions.
6. According to VicForests, the judge failed to give any adequate consideration to the argument and simply said that s 45 of the Timber Act did not 'feature' in the respondents' case.[120] Furthermore, the judge's findings in relation to whether there were exceptional circumstances were unfair.
7. The respondents contended that there is no general requirement that the exceptional circumstances relied upon to grant an injunction restraining the commission of a criminal offence must be relevant to the issue of criminality. Moreover, the Supreme Court of Western Australia in Cohen v City of Perth stated that the requirement of exceptional circumstances was confined to statute that is primarily concerned with creating criminal offences but does not extend to legislation that is 'essentially regulatory'.[121] In any event, the present case is extraordinary in the sense that, at trial, VicForests led evidence regarding what measures were required to comply with the Code but also asserted that it would not take those measures and preferred its own approach, the adequacy of which was the very subject of the proceedings.

1. It is convenient to begin with the declaration impugned by VicForests as providing only 'guidance' and being imprecise. The declaration in question seeks to deal with VicForests' non-compliance with the Standards as they pertain to the establishment of protection areas in East Gippsland where substantial populations of gliders are located in isolated habitat.
2. It will be recalled that cl 4.2.1.3 and Table 13 of the Standards requires protection areas to be established where there are 'substantial populations' of gliders in 'isolated habitat'. The judge found that when selecting and defining these protection areas, VicForests ought to have regard to the 'Suitable Habitat principles' developed by Associate Professor Wardell-Johnson.[122]
3. The Suitable Habitat principles are as follows:

In these principles, gliders means greater gliders (Petauroides volans) and/or yellow-bellied gliders (Petaurus australis).

Principle 1 (Precaution, prevention and future proofing). Choice of location, composition, boundaries and management of the protection area should always be guided by the location of populations of the glider to provide greatest opportunity for persistence.

Principle 2 (Presence of gliders). A protection area should include all recent verifiable records of gliders in the immediate vicinity.

Principle 3 (Habitat components). A protection area should include structurally diverse forest, evidenced by (for example) large, mature trees and records of other mature forest dependent species, with few or no signs of previous intensive logging activity.

Principle 4 (Vegetation type). A protection area should include suitable mature forest of appropriate overstorey tree species composition for gliders.

Principle 5 (Size and shape considerations). A protection area should have minimum edge effect (i.e., be round or square, rather than linear) wherever edges are hostile, and maximum distance from edges to glider records.

Principle 6 (protection areas in fragmented landscapes). In extensively and intensively modified zones (i.e., > 50% modified or proposed to be modified to hostile habitat within 1 km of a coupe centre), any remnant of mature forest within 1 km of this point connected to habitat including a threshold number of gliders, regardless of fire history, is to be designated as a protection area.

Principle 7 (Logging history). A protection area should be mature forest and include no hostile habitat and a minimum area ( Principle 8 (Fire history). A protection area can include up to 15% of mature forest impacted by recent intense wildfire where other conditions are met. Once gliders have again established, the entire protection area can be habitat of a single age-since-fire.

Principle 9 (Boundary context). The boundaries of a protection area should be suitable habitat. Therefore, secure reserved mature forest should be prioritised as protection area boundaries.

Principle 10 (Boundary conditions). The boundaries of a protection area should not act as a passageway or be likely to act as conduits for weed invasion, erosion, pest animals or pathogens, and be of mild slope and distant from streams.

1. These are, we consider, relatively clear guidelines. They contain language and concepts of a kind that would be familiar to persons working in the forestry industry and are plainly directed to ensuring that the protection areas achieve the objective of providing sustainable habitat for gliders.
2. The judge found, on the basis of the evidence given by VicForests' Regional Manager for East Gippsland, Rodney Lewis, as follows:

(a) VicForests currently has no criteria for determining whether a population of gliders detected in East Gippsland is a 'substantial population' in 'isolated habitat' for the purposes of Table 13. > > (b) VicForests is not guided by the ten principles for determining suitable habitat when designing a protection area of suitable habitat for a threshold population of gliders. In particular, VicForests is not guided by Principle 1 - Precaution, prevention and future-proofing, and it does not seek to include all recent verifiable records of gliders in the immediate vicinity within the protection area, as required by Principle 2. The shapes of all of the proposed SPZs (now called protection areas) that Mr Lewis provided by way of example were unsuitable, being linear rather than round or square, and not designed to minimise edge effects. > > (c) VicForests does not at present intend to apply the ten principles for determining suitable habitat, in its application of the Table 13 prescriptions.[123]

3. In making these findings, the judge heard evidence about the way in which protection areas were established in East Gippsland. Her Honour recorded the following evidence and her concerns about it:

According to Mr Lewis, in preparing a draft SPZ or protection area plan, an internal VicForests consultation process takes place across the Operations and Biodiversity teams to ensure the plan is suitably designed. The factors that may be considered and incorporated in the plan include: suitable habitat for the target species; eucalypt species; other flora and fauna present and other protection measures that need to be considered for those species; past disturbance and harvest history; bushfire history; and relevant research or scientific papers. Mr Lewis did not explain how these factors had been taken into account in designing the proposed [protection areas] for Tiger, Lior and Power coupes. Nor is the way in which the factors identified by Mr Lewis influenced the design of the proposed [protection areas] apparent from the documentation that was submitted by VicForests to DELWP.[124]

The overall impression is that the design was guided by the recovery of merchantable timber, and not by Principle 1 - Precaution, prevention and future-proofing. Two features of the proposed [protection areas] stand out.[125]

1. The two features in question were the 'odd shape' of the proposed protection area and the number of yellow-bellied glider detections outside the protection area and within the area that VicForests proposed to harvest.[126]
2. In relation to proposed protection areas in three coupes, her Honour found as follows:

I find that VicForests' proposed [protection area] for the yellow-bellied gliders detected in and around Tiger, Lior and Power coupes is not 'suitable habitat' for those gliders, as required by cl 4.2.1.3 and Table 13 of the Standards.[127]

... the proposed [protection areas] are linear, rather than round or square, and their shape does not minimise edge effects. In the cases of Shake Up and Haggis coupes and Van Halen coupe, the glider detections plotted on the map of the proposed reserve are not the maximum distance from the edge - in fact, some are in the area that VicForests proposes to harvest. In all three cases, the proposed [protection area] does not appear to be suitable habitat for the detected population of yellow-bellied gliders.[128]

1. This is the context in which the judge made the impugned declaration. In the face of ongoing and systematic non-compliance with the requirement in the Standards to avoid or minimise impacts on biodiversity by establishing protection areas when certain criteria are met, the declaration does no more than to require VicForests to design the protection areas 'having regard to' the Suitable Habitat principles.
2. The declaration itself is not 'guidance'. Rather, it contains a clear requirement: that the protection areas be designed 'having regard to' these guidelines in order to secure compliance with cl 4.2.1.3 and Table 13 of the Standards. The declaration was made, and was necessary, in order to prevent the ongoing creation of 'protection areas' that were ineffective to conserve the gliders.
3. As to the use of the terms 'suitable habitat' and 'hostile habitat', we disagree that these terms, used in relation to glider habitat, are 'vague and evaluative' terms in the specialist framework in which the proceeding sits and to a forestry management company owned by the Victorian government. What is suitable habitat for gliders is no great mystery.
4. VicForests also attacks the injunction requiring surveying using a method that is 'reasonably practicable' and 'likely to detect' any gliders in a coupe, their home ranges (in the case of greater gliders) or their feed trees (in the case of yellow-bellied gliders). We do not consider this language to make the injunction insufficiently certain. What the injunction does is give VicForests appropriate latitude in the surveying method it uses, so long as the method gives rise to a likelihood that any gliders in the coupe will be found.
5. Once again, this requirement is to be understood in the context of the judge's findings about the survey method used by VicForests:

In order to apply the precautionary principle to the conservation of greater gliders and yellow-bellied gliders, VicForests must survey the whole of any coupe proposed for harvest which may contain glider habitat. It must do so using a survey method that is likely to detect any gliders that may be present in the coupe, so as to locate the gliders' home ranges wherever practicable. This is necessary in order that their home ranges can be excluded from timber harvesting operations, as the precautionary principle requires.

At present VicForests does not survey all of a coupe before harvesting, and so it plans and undertakes timber harvesting operations without knowing where gliders live within the coupe and which parts of the coupe should be retained for their habitat. In order to comply with s 2.2.2.2 of the Code, VicForests needs to undertake much more thorough pre-harvest surveys for greater gliders and yellow-bellied gliders.[129]

1. In considering whether or not to grant the injunctions, the judge compared VicForests' approach to pre-harvest surveys and harvesting methods with those in issue in Friends of Leadbeater's Possum Inc v VicForests (No 4).[130] There, Mortimer J found that VicForests was not applying the precautionary principle to the conservation of greater gliders and was not likely to do so in the future.[131] The judge stated that she too had found that VicForests' current survey practices and its 'almost universal' use of variable retention harvesting fell 'well short' of what was required for the conservation of greater gliders. Her Honour continued:

In particular, VicForests still does not thoroughly survey coupes for greater gliders when planning timber harvesting operations. It still plans to harvest areas of forest that greater gliders are known to inhabit, in the face of scientific opinion that this is likely to cause the destruction of those gliders.[132]

In these proceedings, VicForests has continued to resist the idea that its responsibility to apply the precautionary principle to the conservation of biodiversity values means - in the case of greater gliders and yellow-bellied gliders - that it should take care that its timber harvesting operations do not kill them by making their habitat unliveable. It does so despite the expert ecological evidence - including that of its own expert, Dr Wagner - that the conservation of these species requires more intensive pre-harvest surveys and less intensive methods of harvesting timber.[133]

1. The judge determined not to impose the survey protocol advanced by the respondents and to make an order that was more flexible, taking into account, among other things, the evidence about the practicalities of surveying in dense forest and difficult terrain, and at night. However, her Honour received no assistance from VicForests about the terms of the injunctions:

VicForests took an 'all or nothing' position in relation to injunctions sought by the [respondents]. It has maintained throughout the litigation that it would not engage in an 'auction' about the adequacy of its survey methods, and that no injunction should be ordered unless the [respondents] made out their case for injunctions in the form sought in their pleadings.[134]

1. In the circumstances, it was well open to the judge to make the injunction that she did.
2. Finally, we reject the argument that the judge acted on a wrong principle in not accepting VicForests' submission that the injunctions seek to restrain the commission of a criminal offence.
3. It is the case that the measures required by the injunctions are directed to ensuring that VicForests complies with the Code. But that is not to enjoin criminal conduct. Yes, it is an offence to take timber from State forests other than in than in accordance with an allocation order. And, yes, the allocation order requires compliance with the Code. But that does not mean that a particular failure to comply with the Code is an offence.
4. The Code includes principles and operational goals, as well as 'mandatory actions'. Some of it is expressed in the language of policy, and some of the mandatory actions are expressed so as to permit flexibility in the method of compliance. The dispute before the primary judge about what the precautionary principle requires is a case in point. Whether or not non-compliance with the precautionary principle is an offence under the Timber Act, it is plainly something capable of being challenged by persons with a special interest in its application. It is contrary to fundamental principle to suggest that non-compliance with the precautionary principle can only be addressed by the prosecution of an offence and remedied by the imposition of criminal sanctions.
5. Nor are we persuaded that the fact that the Secretary of DELWP is expressly empowered under s 89 of the CFL Act to seek an injunction restraining a contravention of the Timber Act precludes persons with a special interest, such as the respondents, from seeking orders from the Court restraining the contravention of the Code.

Ground 7: Did the primary judge fail to give adequate reasons?

1. In support of ground 7, VicForests submitted that the primary judge's reasons are inadequate because they do not explain how the judge concluded that the measures that are the subject of the injunctions are required by law.
2. In particular, it was submitted that the judge failed to sufficiently articulate each of the following matters:

(a) why the measures specified in the injunctions, and 'no other measures', are actually required by the provisions of the Code; > > (b) why the judge concluded that ss 2.2.2.2 and 2.2.2.4 require precisely the same measures to be implemented by VicForests; > > (c) why the judge concluded that the measures specified by the injunctions are 'management actions' consistent with the Standards, within the meaning of s 2.2.2.4; and > > (d) on what basis the judge concluded that the measures are required as a matter of uniformity in every coupe, notwithstanding VicForests' submissions that the evidence established the contrary proposition.

3. In oral submissions, senior counsel for VicForests focused on the second proposition. Specifically, it was submitted that the requirements of ss 2.2.2.2 and 2.2.2.4 are, respectively, different. Accordingly, it was submitted, the judge failed to explain how she concluded that both the precautionary principle in s 2.2.2.2 and the management actions that arise under s 2.2.2.4 gave rise to a conclusion that the applicant be ordered 'to do the same thing'.
4. In response, the respondents submitted that the judge's reasons adequately explained why ss 2.2.2.2 and 2.2.2.4, on their correct construction, require identification of the location of greater gliders and yellow bellied gliders in each coupe before harvesting commences, and requires that the risks, affecting each species of glider, be properly addressed. Further, it was submitted, the judge sufficiently explained why the evidence established that the applicant had not complied with those obligations. Her Honour then explained how, on her consideration of the expert evidence, she determined the minimum measures the applicant was required to undertake in order to comply with the provisions of the Code.
5. In particular, it was submitted that the judge was not required to consider the 'entire universe' of measures that might satisfy ss 2.2.2.2 and 2.2.2.4. Rather, her Honour was limited to the evidence adduced by the parties and, specifically, to the measures that each of the two experts recommended. In examining that evidence, the judge explained why she preferred the measures propounded by VicForests' expert, Dr Wagner.
6. Further, it was submitted, the judge adequately explained how she concluded that the two provisions of the Code required surveys to be undertaken in order to ascertain where gliders live within a particular coupe. The judge reviewed the evidence in that respect and explained why she concluded that the measures advocated by Dr Wagner were preferable. Further, it was submitted, at trial VicForests did not contend that its own expert's recommendation for 60 per cent retention and protection of the greater glider home range was inconsistent with the Standards. Counsel contended that it is self-evident that those measures are consistent with the examples in s 2.2.2.4 of modified silvicultural techniques, exclusion areas and protection areas.

1. The principles relating to the requirement that a judge give adequate reasons for a decision are well-established.
2. There are two basic purposes to be served by the provision of reasons for judgment. First, the provision of adequate reasons enables an appellate court to ascertain the basis upon which the decision, the subject of the appeal, was made.[135] Secondly, a failure by a judge to provide adequate reasons can engender a real sense of grievance on the part of an unsuccessful party who is left in ignorance as to why the decision, adverse to its interest, has been made. Allied to that purpose is the public interest in maintaining public acceptance of judicial decisions and the integrity of the curial process.[136]
3. In order to vindicate both purposes, the reasons must disclose the 'path' or 'route' by which the trial judge reached the ultimate conclusion in the judgment.[137] In Beale, Meagher JA outlined the content of that requirement in the following terms:

... the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.

Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached ... But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance.

Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and the reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.[138]

1. In Hunter v Transport Accident Commission,[139] Nettle JA, in an application under s 93(4)(d) of the Transport Accident Act 1986, explained the fundamental requirements necessary for the provision of adequate reasons in similar terms:

Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those findings are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and to assign reasons for the rejection of the argument or the resolution of the issue.

1. An examination of the judge's reasons demonstrates that, consistently with those principles, her Honour, in a detailed and methodical manner, disclosed the path or route by which she determined the relief that is contained in the injunctions that are the subject of ground 7.
2. Before considering each of the four specific points made by VicForests, it is appropriate, first, to revisit the manner in which the judge decided the critical issues that were agitated in the trial.
3. As we have noted, the judge effectively addressed 15 specific issues, which she formulated at the commencement of her reasons. Those issues included: the correct construction of ss 2.2.2.2 and 2.2.2.4 of the Code; the question as to whether the precautionary principle was engaged in respect of greater gliders and yellow-bellied gliders; the question as to whether the applicant was applying that principle to the protection of each of those two species of glider; and the question as to whether the applicant was applying s 2.2.2.4 of the Code to the gliders in both East Gippsland and the Central Highlands. It was based on the judge's examination and conclusions in respect of those questions that her Honour formulated the minimum measures that were required to be undertaken by VicForests in order to ensure that, consistently with the provisions in question, sufficient steps be taken in order to protect each species.
4. At the risk of repetition, it is important to briefly outline her Honour's reasons in respect of those issues.
5. The judge first found that the precautionary principle was engaged in relation to the greater glider, so that the applicant bore the burden of demonstrating that its timber harvesting operations in East Gippsland and the Central Highlands would not cause serious and irreversible damage to that species.[140] In addressing the question as to whether VicForests was applying the precautionary principle to the protection of greater gliders, her Honour noted that the two expert ecologists, Associate Professor Wardle-Johnson and Dr Wagner, had recommended two alternative measures.[141] The judge considered that the measures proposed by Dr Wagner were more proportionate and were, therefore, the minimum measures required to be undertaken.[142]
6. Next, the judge found, on the evidence, that the applicant did not take either of the measures recommended by the expert ecologists, and thus concluded that the applicant was failing to apply the precautionary principle to the protection of greater gliders.[143]
7. The judge then turned to the question of the application of the precautionary principle to yellow-bellied gliders. Her Honour again outlined the alternative measures advocated by the two expert ecologists, which could be taken to conserve that species.[144] Again, her Honour considered that the approach recommended by Dr Wagner was more proportionate, and therefore constituted the minimum measures required to be undertaken in order to ensure the appropriate application of the precautionary principle to yellow bellied gliders.[145] Finally, in that respect, the judge concluded that VicForests' steps fell short of those advocated by Dr Wagner, and accordingly, it was not applying the precautionary principle to the conservation of yellow‑bellied Gliders in East Gippsland or the Central Highlands.[146]
8. The judge then turned to the question of the surveys, which are required to be undertaken in order to detect gliders. Her Honour reviewed, in some detail, the opinions of the two expert witnesses as to the appropriate survey methods, which were required to be applied in order to sufficiently identify greater gliders and yellow-bellied gliders, in coupes in the Central Highlands and East Gippsland.[147] Having undertaken that review, her Honour concluded that the VicForests' current approach to detecting greater gliders and yellow-bellied gliders was 'considerably less' than the precautionary principle required. Specifically, its practice of limiting the survey effort to a one kilometre transect in a coupe was inadequate, as it left most parts of a coupe unsurveyed. In those circumstances, it was not possible for VicForests to retain the habitat that was essential for the conservation of the gliders.[148]
9. The judge then considered the evidence concerning issues that were raised regarding the safety and feasibility of the survey methods proposed by the expert witnesses.[149] Having examined that evidence in some detail, the judge concluded that in order to apply the precautionary principle to the two species of gliders the applicant must survey the whole of any coupe proposed for harvest which may contain glider habitats, and that it must do so using a survey method that is likely to detect gliders present in the coupe.[150] The judge thus concluded that as VicForests did not survey all of the coupe before harvesting it did not comply with the requirements of the precautionary principle.[151]
10. The judge then turned to the question as to whether VicForests was applying s 2.2.2.4 in East Gippsland and in the Central Highlands.[152] As we have discussed when considering ground 4, the judge construed s 2.2.2.4 to constitute a mandatory action that required more of VicForests than compliance with the prescriptions in clause 4.2.1 and Table 13 of the Standards. Her Honour held that the section required VicForests during planning, to identify whether, and where, the biodiversity values listed in the first column of Table 13 are present in a coupe, and where they are so present, to address risks to them by taking management actions consistent with the Standards.[153]
11. Based on her examination of the evidence to which she had referred when considering the application of the precautionary principle, the judge concluded that VicForests did not meet its obligations under s 2.2.2.4 in respect of the gliders in each of the two areas in question.[154]
12. It was based on those conclusions, and the evidence examined in doing so, that her Honour then addressed the question of the appropriate injunctive relief to be granted to the plaintiff in each proceeding. As discussed when considering ground 1, the judge concluded that the survey protocol and harvesting practices of VicForests, did not comply with its obligations under ss 2.2.2.2 and 2.2.2.4 of the Code. It was based predominantly on the evidence of Dr Wagner that the judge then proceeded to formulate the injunctive relief granted to the respondents.
13. From the foregoing review of the judge's reasons, it is quite apparent that her Honour disclosed and explained the path by which she reached the conclusion that the measures undertaken by the applicant did not comply with the applicable provisions in the Code, and, further, by which she determined the minimum steps which VicForests is required to undertake in order to lawfully comply with those provisions. In particular, in conformity with the principles outlined by Meagher JA in Beale, and by Nettle JA in Hunter, the judge referred to the relevant evidence, made material findings and conclusions of fact in relation to it, and provided reasons for those findings. Specifically, in the context of ground 7, the judge, by reference to the evidence, and her conclusions concerning the evidence, explained how she concluded that the orders contained in the three injunctions were directed to ensuring that VicForests took the minimum steps requisite in order to comply with ss 2.2.2.2 and 2.2.2.4 of the Code.
14. It is in that context that we now turn to consider the four specific points relied on by VicForests in support of ground 7.
15. In respect of the first point raised by VicForests, it was not for the judge to surmise as to any other possible measures which might be undertaken by VicForests in compliance with the Code. The judge's role was to determine the issues, based on the evidence that was adduced by the parties during the trial. As we have discussed, the judge carefully assessed the evidence, and in particular the expert evidence, that was adduced in relation to those aspects of the case, and by doing so, determined the minimum steps which were required to be undertaken by VicForests in order to comply with ss 2.2.2.2 and 2.2.2.4 of the Code.
16. Further, it is quite evident that in view of the judge's construction of ss 2.2.2.2 and 2.2.2.4 respectively, it is unsurprising that in a particular case it may be possible to identify the minimum steps required to be undertaken by VicForests in order to comply with both of those two provisions. As we have noted, ss 2.2.2.2 and 2.2.2.4 are each part of a number of sub-provisions contained in Part 2.2.2 of the Code, which are addressed to the same Operational Goal - the specification of mandatory actions to address biodiversity conservation risks taking into account relevant scientific knowledge. Sections 2.2.2.2 and 2.2.2.4 are each expressly addressed to the conservation of biodiversity values by the identification of those values and of threats of serious or irreversible environmental damage to them, and as to the steps to be taken, consistent with the avoidance, where practicable, of serious or irreversible damage to them. Section 2.2.2.4 does not inflexibly require management actions prescribed in the Standards. Rather, the actions which must be taken are to be 'consistent with' those standards and procedures. As the foregoing summary of the judge's reasons demonstrates, her Honour, in some detail, adequately exposed her reasons for concluding that the injunctions which she formulated were necessary to ensure compliance with each of those two interrelated provisions and with the purpose to which they were directed.
17. Finally, it is apparent that the judge was cognisant of the submission advanced by VicForests that there may need to be some flexibility in prescribing the appropriate protocol for surveying each coupe.[155] The general terms, in which the first injunction was formulated, clearly caters for that proposition. In particular, the judge concluded that, although the survey protocol propounded by the plaintiffs was an effective way to detect and locate gliders within a coupe, it may not be the only effective way to do so. Her Honour noted:

The selection and spacing of the transects to be walked during spotlight surveys will depend on the shape, topography and other characteristics of each coupe. As Associate Professor Wardle-Johnson observed, the precise survey method does not matter so long as the entire coupe is surveyed.[156]

1. For those reasons, the applicant has failed to demonstrate that the reasons provided by the judge were inadequate. On the contrary, her Honour's reasons were commendably thorough and detailed, and clearly demonstrated the path by which she concluded that the respondents were entitled to the injunctive relief that was the subject of the orders.
2. Accordingly, ground 7 must fail.

Cross-appeal: Did the primary judge fail to consider risks affecting gliders proximate to but outside the coupe?

1. In each of the two proceedings, the respondents,[157] by way of cross-application, rely on one proposed ground of appeal, namely:

The trial judge failed to take account of the risk affecting greater gliders and yellow-bellied gliders located proximate to but outside a coupe at the time the coupe was surveyed.

1. Under that ground, the respondents seek orders which would materially enlarge the scope of the relief ordered by the judge. In effect, the respondents seek in each proceeding orders that extend the areas which VicForests is required to survey, and to which the injunctions apply, in two alternative ways.
2. First, the respondents seek orders expanding the area that VicForests is required to survey to an 'additional survey area' encompassing an area that extends 250 metres from the coupe boundaries, together with any other coupe that is located wholly or partially within that additional area. The respondents further seek orders extending the area in which VicForests is restricted in conducting its timber harvesting operations, to include that 'additional survey area'.
3. Alternatively, the respondents seek orders extending the survey that VicForests is required to undertake to include one which is likely to detect any gliders whose home range may extend into the coupe. Further, the respondents seek to extend the injunctions to extend the area in which restrictions apply to timber harvesting to include coupes in which gliders' home ranges or a part thereof may be located.
4. Thus, in the East Gippsland proceeding, EEG, by way of its first alternative, seeks the following orders in lieu of those made by her Honour:
   • (1) VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe or in any 'additional survey area' (defined as an area that extends 250 metres from the coupe boundaries and any other coupe that is located wholly or partially within the area that extends 250 metres from the coupe boundaries) unless the coupe and that additional survey area have been surveyed using a reasonably practicable survey method that is likely to:

(b) detect any gliders that may be present in the coupe or in the additional survey area and, so far as reasonably practicable, locate their home ranges; and > > (c) detect any yellow-bellied gliders that may be present in the coupe and the additional survey area and identify their feed trees and hollow-bearing trees in the coupe.

• (2) VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA in which greater gliders have been detected or if any greater gliders have been detected in the coupe's additional survey area unless:

(a) it excludes the greater glider's located home ranges from timber harvesting operations; and > > (b) it excludes from timber harvesting riparian strips at least 100 metres wide located along all waterways in the coupe, with an exclusion area of at least 50 metres wide on each side of those waterways; and > > (c) it retains at least 60 per cent of the basal area of eucalypts in the harvested area of the coupe.

• (3) VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA in which yellow-bellied gliders have been detected, or if any yellow-bellied gliders have been detected in the coupe's additional survey area, unless:

(d) it excludes from timber harvesting riparian strips at least 100 metres wide located along all waterway in the coupe, with an exclusion area of at least 50 metres wide on each side of those waterways; and > > (e) it retains at least 60 per cent of the basal area of eucalypts in the harvest area of the coupe, including all identified feed trees and hollow-bearing trees within the coupe.

5. Alternatively, in the East Gippsland proceeding, EEG, seeks, in lieu of the orders made by the judge, the following orders:
   • (1) VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA unless surveys have been conducted using a reasonably practicable survey method that is likely to:

(b) detect any greater gliders that may be present in the coupe and any greater gliders whose home range may extend into the coupe and, so far as it is reasonably practicable, locate their home ranges; and > > (c) detect any yellow-bellied gliders that may be present in the coupe and any yellow-bellied gliders whose home range may extend into the coupe and identify their feed trees and hollow-bearing trees in the coupe.

• (2) VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA in which greater gliders have been detected or in which greater gliders' home ranges or a part thereof may be located unless:

(a) it excludes the greater glider's located home ranges from timber harvesting operations; and > > (b) it excludes from timber harvesting riparian strips at least 100 metres wide located along all waterways in the coupe, with an exclusion area of at least 50 metres wide on each side of those waterways; and > > (c) it retains at least 60 per cent of the basal area of eucalypts in the harvested area of the coupe.

• (3) VicForests must not, whether by itself, its servants, agents, contractors or otherwise, conduct timber harvesting operations in any coupe in the East Gippsland FMA in which yellow-bellied gliders have been detected or in which yellow-bellied gliders' home ranges or a part thereof may be located unless:

(a) it excludes from timber harvesting riparian strips at least 100 metres wide located along all waterway in the coupe, with an exclusion area of at least 50 metres wide on each side of those waterways; and > > (b) it retains at least 60 per cent of the basal area of eucalypts in the harvest area of the coupe, including all identified feed trees and hollow-bearing trees within the coupe.

6. In the Kinglake proceeding, KFF seeks orders to the same effect.

1. In their joint written case, the respondents submitted that the evidence at the trial demonstrated that VicForests' timber harvesting operations create risks for gliders which are detected beyond the boundary of the coupes in which the foresting operations are to take place. Counsel noted that the proven home ranges of the greater glider and of the yellow-bellied glider are such that either species may be affected by logging within the coupe if that glider, at the time the survey is conducted, is located outside the coupe. The respondents further noted that, in final address in the trial, it was submitted that the relief ordered by the judge should include an order that an area surrounding each coupe be surveyed, and orders addressing the risks to gliders which have been detected outside the particular coupe. Counsel noted that the judge, in her reasons for the formulation of final orders, recognised that parts of the forest adjacent to a coupe should be surveyed.[158] However, the Final Orders did not require surveys to be conducted outside the coupe. Further, it was submitted the protective measures contained in the orders restricting forestry operations within the particular coupe, failed to take account of the need to protect gliders located proximate to, but outside, a coupe at the time the survey was conducted.
2. In oral submissions, counsel for the respondents identified the specific basis upon which it was submitted that the judge had erred in the formulation of the Final Orders. In effect, it was submitted that the judge made a 'House v The King'[159] error in failing to take into account the issue relating to the detection and protection of gliders who are outside a coupe, but whose home range might extend into the coupe. Alternatively, it was submitted, insofar that the judge did take that factor into account, her Honour failed to give sufficient weight to it, and by doing so, erred in the exercise of the discretion in the formulation of the injunctive relief afforded to the respondents. In that respect, counsel relied on the expanded form of the House v The King principle as discussed by Kitto J in Australian Coal and Shale Employees Federation & Anor v The Commonwealth & Ors[160] and by the Full Court of the Federal Court in its recent decision in Shepherd v Watt.[161]

1. Senior counsel for VicForests, in effect, made two principal points in response to the submissions made on behalf of the respondents.
2. First, counsel submitted that the arguments advanced on behalf of the respondents were based on an unstated premise, namely, that the judge had erred in failing to find that ss 2.2.2.2 and/or 2.2.2.4 of the Code required VicForests to undertake surveys beyond the coupe area in order to detect gliders who were outside the coupe areas but whose home ranges might extend into the coupe. Counsel submitted that that underlying premise to the arguments advanced on behalf of the respondents in support of the cross-application is not the subject of a specific ground of appeal in their notice of cross-application for leave to appeal.
3. Secondly, counsel for VicForests noted that the relief now sought by the respondents in the cross-appeal extends well beyond the relief which they sought in their pleadings and at trial. In particular, in the statement of claim in each proceeding, the respondents had each pleaded that, on the correct construction of ss 2.2.2.2 and/or 2.2.2.4 of the Code, VicForests was required to conduct surveys to identify greater gliders and yellow-bellied gliders inhabiting each coupe and the area 75 metres beyond the boundary of the coupe in order to address risks to those gliders in, and in the vicinity of, the coupe. That pleading, and that point, were the subject of the findings made by the judge in her primary reasons. Following delivery of the Liability Reasons, the respondents, in their submissions as to the final form of orders pronounced, departed from their pleading, and contended that the two provisions of the Code required surveys to be conducted 114 metres beyond the boundary of each coupe, as well as the entirety of any other coupe that was located wholly or partially within that area of 114 metres beyond the coupe boundaries.
4. Counsel for VicForests further noted that in the cross-application, the respondents have now contended that ss 2.2.2.2 and/or 2.2.2.4 of the Code require surveys to be conducted 250 metres beyond the boundary of each coupe. Further, as a new alternative, the respondents contend that the survey should be directed to detect any glider outside the coupe but whose home range might extend inside the coupe. VicForests submitted that the respondents should be held to their pleaded cases and the cases that were the subject of their final addresses before the judge, in respect of which the judge made the fundamental findings which were the bases, ultimately, for the forms of relief which her Honour ordered.

1. For the reasons that follow, both points made by VicForests in response to the cross‑appeal are correct, and the application by the respondents to cross-appeal the orders made by the judge must fail.
2. In essence, the orders made by the judge, which are the subject of the cross‑application, were based on conclusions that her Honour reached in respect of specific issues that were the subject of the pleadings in the trial. The judge's conclusions concerning those issues are not the subject of any ground of appeal in the cross-application for leave to appeal, and, in essence, the respondents have not sought to impugn them.
3. In order to analyse the point relied on by the respondents on the cross‑application, it is necessary to return to the issues that were defined and framed by the pleadings, and which were the subject of the substantive conclusions formed by the judge in her reasons. In each proceeding, the respondents' respective statements of claim underwent a number of amendments. The final edition of the pleading, in each proceeding, was that on the true construction of ss 2.2.2.2 and 2.2.2.4 of the Code, the following were required:

(a) Surveys to identify gliders in each coupe and in the area of 75 metres beyond the boundary of the coupe in order to address risks to gliders in, and in the vicinity of, the coupe. > > (b) For each sighting of a greater glider, there be an exclusion area or other management action applied to exclude timber harvesting operations from a circular area of radius 240 metres centred on the location of the greater glider sighting (18 hectares). > > (c) For each sighting of at least three yellow-bellied gliders within a 20 hectare area, there be an exclusion area or other management area applied to exclude timber harvesting operations from 38 hectares of suitable habitat for the yellow-bellied gliders centred on them, such area to be protected by appropriate buffers.

4. In each proceeding, the prayers for relief in the respective statements of claim sought declarations and injunctions which reflected those three requirements.
5. In final address, and in the written submissions before the judge, the respondents' counsel specifically addressed the form of relief sought in the pleading. The respondents' submissions on the issue of surveys focused principally on the kind of surveys which were required to comply with ss 2.2.2.2 and 2.2.2.4 of the Code, and the practicability of the surveys that were recommended by the respondents' expert, Associate Professor Wardell-Johnson. Similarly, the submissions by the respondents, concerning the dimensions and locations of the required protection areas, were substantially based on the expert evidence given by Associate Professor Wardell‑Johnson and Dr Wagner. Only passing reference was made, in the submissions, to the question whether the survey area, and any exclusion area, should extend beyond the coupe that was to be the subject of the foresting operations.
6. It was in that context that the judge, in the Reasons, determined the issues that had been addressed by the parties. Her Honour concluded that, in order to apply the precautionary principle to the conservation of greater gliders and yellow-bellied gliders, VicForests must survey the 'whole of any coupe' that is proposed for harvesting which may contain glider habitat, and that it must do so using a survey method that is likely to detect any gliders that may be present 'in the coupe' in order to locate the gliders' home ranges wherever practicable.[162] The judge considered that the survey protocol proposed by the respondents was an effective survey method, but it was not the only effective way to detect and locate gliders 'within a coupe'.[163] In considering the form of injunction which should be ordered, the judge concluded that it should not be in the terms sought by the respondents, because, in particular, her Honour did not consider that the respondents' survey protocol was appropriate for inclusion in such an order.[164]
7. In a similar way, in conformity with the issues framed by the pleadings, the judge addressed the differing views, respectively expressed by Associate Professor Wardell‑Johnson and Dr Wagner, for preserving sufficient habitat of the greater gliders and yellow-bellied gliders in order to ensure their continued survival. The judge noted the evidence of Dr Wagner, which differed from the evidence of Associate Professor Wardell-Johnson, as to the steps that were necessary to protect those two species of gliders. In the case of each of the two species of gliders, the judge preferred the steps advocated by Dr Wagner as being more proportionate in achieving protection of those two species consistently with the precautionary principle in s 2.2.2.2 of the Code.[165] The judge concluded that the respondents were entitled to injunctions in the terms that we have quoted earlier in these reasons.[166]
8. Specifically, as we have earlier noted, the judge's formulation of those orders was based substantially on the evidence given by Dr Wagner, and in particular, Dr Wagner's opinion that, in order to provide sufficient protection for the two species of gliders, it was necessary to retain at least 60 per cent of the basal area within the harvested area of the coupe. Relevantly, in the context of the ground of cross‑appeal, Dr Wagner's opinion, as identified by the judge in the Reasons, did not extend to identifying or protecting gliders outside the harvested area of the coupe.
9. The findings that were so made by the judge in her Reasons were the necessary basis for the relief contained in the orders that she subsequently pronounced. In providing the parties with the opportunity to make submissions concerning the orders which should be pronounced, the judge properly and correctly sought submissions in respect of orders which would 'give effect to [her] conclusions', taking the proposed orders, expressed by the judge in the Reasons, as the 'starting point'.[167]
10. That approach by the judge was, of course, entirely orthodox and appropriate. As we have discussed, in the Reasons the judge made particular findings and reached particular conclusions concerning the steps and processes that were necessary in order that VicForests comply with ss 2.2.2.2 and 2.2.2.4 of the Code. It was those findings and conclusions that were the proper basis for any relief which the judge ultimately awarded. The process that followed, and in particular the opportunity for the parties to address and make submissions concerning the precise formulation of the relief to be the subject of the judge's final orders, was not an opportunity for the parties to range beyond the ambit of the issues that they had defined and framed in their pleadings and which had been determined by the judge.
11. In the present cross-application, the respondents have not sought to rely on any ground of appeal that the judge erred in determining that VicForests was required to apply the steps described by Dr Wagner in order to comply with the precautionary principle in s 2.2.2.2 of the Code. It was not put by counsel for the respondents that the judge erred in failing to conclude that, in order to comply with ss 2.2.2.2 and 2.2.2.4 of the Code, VicForests was required to conduct surveys outside the coupe, whether in the 'additional survey area' (be it 75 metres, 114 metres or 250 metres) contended for by the respondents, or to conduct surveys to detect gliders who might be outside the coupe, but whose ranges might extend into the coupe that was to be the subject of timber harvesting operations. Nor was it put by way of cross-appeal that the judge erred in failing to conclude that those provisions of the Code required that VicForests be restricted in harvesting areas that extended into the 'additional survey area', or alternatively that those provisions required that VicForests be restricted from engaging in timber harvesting operations in coupes into which the home ranges of gliders (detected outside the particular coupe) might extend.
12. As we have noted earlier in these reasons, following the delivery of the Liability Reasons, the respondents in each proceeding made submissions by which they proposed orders which in effect would require VicForests to survey the coupe, together with an area extending 114 metres beyond the coupe boundaries, and (in addition) any other coupe located wholly or partially within that area of 114 metres beyond the coupe boundary. The orders proposed by the respondents sought an injunction restraining VicForests from conducting timber harvesting operations unless it excluded a circular area with a radius of 228 metres from the location of the detection of any greater glider in any of those areas, and unless it also retained at least 60 per cent of the basal area of eucalypts in the harvested area.
13. A number of points may be immediately noted concerning the proposed orders so sought by the respondents.
14. First, the boundary area of 114 metres exceeded the area sought in the respondents' statements of claim (75 meters).
15. Secondly, as discussed, the judge did not make any express conclusion or finding to the effect that such additional area should be surveyed, or should be the subject of any timber harvesting restriction of the kind that the judge determined should be applied to the actual coupe areas.
16. Thirdly, in the Reasons, the judge specifically made a finding that it was not necessary to exclude timber harvesting within a radius of 228 metres from the location of any greater glider.
17. Fourthly, the proposed orders introduced an entirely novel aspect into the respondents' claim, namely, that the survey area (and thus the area which would be the subject of restricted harvesting) be extended to any other coupe the boundaries of which at any point intersected with the extended boundary of 114 metres proposed by the respondents. In their statements of claim, the respondents had not pleaded that the relevant provisions of the Code required VicForests to survey any such additional coupe area, or to implement any restricted forms of harvesting in them. For that reason, the judge did not make any finding to that effect, which could form the basis of that additional component of relief sought by the respondents.
18. In her reasons relating to the relief to be ordered, the judge noted that the form of injunctions, proposed by the respondents, sought to reintroduce a prescriptive approach in the two ways mentioned.[168] The judge noted that in support of that approach, the respondents had submitted that a survey only provides a snapshot of where a glider happens to be on the night of the survey, but that it is not possible to tell where the glider is within its home range at the time of the survey. Accordingly, the respondents preferred to quantify, in a prescriptive manner, the area to be protected.
19. The judge, having thus outlined the respondents' position, concluded:

I did not share that preference. The ecologists agreed that knowledge of where in a coupe greater gliders occur is required to adequately plan for habitat retention and silvicultural regimes at the coupe level. They were clear that survey efforts could and should be directed to finding out where gliders live within a coupe. It is this objective that should guide VicForests in deciding what parts of the forest in and adjacent to a coupe should be surveyed when planning to harvest the coupe. Once those surveys have been done, observations of greater gliders made during the surveys can be combined with the scientific understanding of the average size of their home range to make an assessment of the likely location of a greater glider's home range within the coupe. That assessment is best made based on the actual survey observations, and the particular characteristics of the coupe and its surrounds.[169]

1. As we have discussed, it was not necessary for the judge to give reasons for rejecting the respondents' proposed form of injunctive relief, other than to note that that form was not based on, and was indeed contrary to, the judge's conclusions in the Reasons. Further, and in any event, the reasons given by the judge for rejecting the form of injunction proposed by the respondents were unimpeachable. Consistently with her Honour's findings in the Reasons, the judge rejected the prescriptive approach contended for on behalf of the respondents, and provided for appropriate surveys to be conducted within the coupe area in question. The respondents have not been able to identify or substantiate any error contained in that reasoning by her Honour.
2. Finally, it must be observed - and indeed was conceded by the respondents in their written case - that the relief now sought by them, on the cross-appeal, is different and more substantial than the relief that was the subject of the respondents' respective statements of claim, and that which was sought by the respondents after the delivery of her Honour's Reasons for judgment. First, the respondents now seek an additional survey area with a radius of 250 metres around the affected coupe. Secondly, by way of alternative, the respondents seek surveys to be conducted outside the coupe area, but which are likely to detect any glider, who at the time of survey was physically located outside the coupe, but whose home range could extend into the coupe. That alternative form of survey was not the subject of any pleading, any submission to the judge in final address, or any submission to the judge on the question of the orders to be made by way of final relief after delivery of the reasons for judgment. It is entirely novel. Further, it was not based on any finding of fact or conclusion by the judge in the Reasons.
3. As we have discussed, in their submissions to this Court, the respondents contended that the judge, by not making orders in the form now sought, failed to give any, or any adequate, weight to the need to protect the habitat of gliders, who, at the time of survey, may be outside the coupe boundaries, or gliders who, while resident outside the coupe area, may have a home range that extend inside the coupe area. In that way, the respondents have sought to contend that the judge, by failing to give that consideration any or any adequate weight, made an error of the kind identified by the High Court in House v The King, and as described in the recent decision of the Full Court of the Federal Court in Shepherd.
4. The submissions made by the respondents are flawed for two fundamental reasons. First, while the formulation and grant of equitable relief, in the form of a declaration or an injunction, is in part discretionary, it must be based on a finding of fact or conclusion from the facts made by the judge in the proceeding. For the reasons we have already discussed, the additional relief now sought by way of cross-appeal, was not based on any such identified finding of fact or conclusion by the judge. Secondly, as discussed, the matters that are now sought to be included in the relief contended for in the cross-application are substantially different to, and distinct from, the issues properly defined by the respondent in their pleadings and that were thus the subject of determination by the judge.
5. For those reasons, the ground of appeal, relied on by the respondents, must fail. The application by the respondents for leave to cross-appeal must therefore be refused. The application to amend the notice of cross-appeal is also refused, as the amended notice suffers from the same vices as the original notice.

(a) VicForests' application for leave to appeal is granted but the appeal is dismissed; > > (b) the respondents' application for leave to cross-appeal is refused; and > > (c) the respondents' application for leave to amend the notice of the cross-appeal is refused.

[1] Environment East Gippsland Inc v VicForests (No 4) [2022] VSC 668, [78] ('Liability Reasons').

[6] There is no dispute that EEG and KFF have standing in these proceedings: Environment East Gippsland Inc v VicForests [2010] VSC 335; (2010) 30 VR 1; VicForests v Kinglake Friends of the Forest Inc (2021) 66 VR 143.

[7] FMA means a territorial unit for planning and managing State forests in Victoria.

[8] VicForests' witnesses included Monique Dawson (its Chief Executive Officer), James Gunn (its Manager of Forest Practices) and William Paul (its Director of Environmental Performance): Liability Reasons, [41].

[10] Coupe means a specific area of State forest identified for the purposes of timber harvesting and regeneration in a timber release plan.

[12] Liability Reasons, [165]. Table 12 of the Standards sets out, among other things, habitat tree retention rates for various types of forest. The Standards also provide guidance about the selection of habitat trees to be retained.

[15] Liability Reasons, [7(3)], [156], [158], [160], [163].

[18] Liability Reasons, [377]-[378], [393], [396].

[19] The Final Orders were subsequently varied pursuant to reasons published on 17 February 2023: Environment East Gippsland Inc v VicForests (No 6) [2023] VSC 60. The varied orders and related reasons are not the subject of the proceedings now before us.

[20] Environment East Gippsland Inc v VicForests (No 5) [2022] VSC 707 ('Reasons for Final Orders').

[21] The restraints imposed were subject to certain exclusions and VicForests was given liberty to apply to further expand the exclusions, if necessary, by reopening its case.

[23] On 23 May 2023, between the hearing of the appeal and publication of these reasons, the Treasurer for Victoria, the Honourable Tim Pallas, announced that the Victorian State Government will bring forward the end of logging in native forests within State forests from 2030 to 1 January 2024.

[24] This definition is similar but not identical to the definition of 'timber harvesting operations' in s 3 of the Timber Act.

[28] The Glossary to the Code states that 'biodiversity' has the same meaning as in the Flora and Fauna Guarantee Act 1988.

[29] Flora and Fauna Guarantee Act 1988 s 3(1) (definition of 'biodiversity').

[30] All references to the Code include references to the Standards. To the extent of any inconsistency between the two, the Code will prevail: The Code s 1.2.4A.

[43] The Suitable Habitat principles are detailed below at [247].

[44] For convenience, proposed grounds are referred to as 'grounds' throughout these reasons.

[45] '2021' is a reference to the current Standards. The detection criteria for the greater glider and the yellow-bellied glider is specified in Table 13 of the Standards. For the greater glider, the assumed rate of spotlighting per kilometre is 100 minutes per 1 kilometre and visible range either side of the transect is 25 metres, equating to an assumed minimum survey area of 5 hectares. For the yellow-bellied glider, the assumed rate of spotlighting per kilometre is 10 minutes per 100 metres and visible range either side of the transect is 150 metres, equating to an assumed minimum survey area of 30 hectares.

[46] The issues to which her Honour referred are extracted above at [44] and a summary of her Honour's conclusions appear between [54]-[59].

[50] Liability Reasons, [383]-[385].

[51] See above [61]-[64].

[52] [2005] NSWCA 208, [78].

[53] Ibid [78]-[79]. See also The Queen v Lewis [1988] HCA 24; (1988) 165 CLR 12, 17; [1988] HCA 24; Patorno v The Queen [1989] HCA 18; (1989) 166 CLR 466, 474 (Mason CJ, Brennan J); [1989] HCA 18; BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2006] WASCA 49, [33]-[38] (Le Miere J, Wheeler and Pullin JJ agreeing).

[54] Our identification of 'the central issue' insofar as it concerns compliance with s 2.2.2.2 of the Code is a consequence of our conclusion, discussed in respect of ground 3 below, concerning the correct construction of that provision.

[55] A 'coupe' is a small area of forest that is harvested within a single operation. The experts were asked at trial about the likely effect of VicForests' proposed harvesting plan on the glider population within a particular coupe known as the 'Rookery' coupe.

[56] Variable retention harvesting is the silvicultural method of retaining a certain percentage of trees which are categorised based on their particular attributes, including location and types of hollows. VR1 harvesting is usually used where the density of Type 1 habitat trees is between three and six per hectare. VR1 harvesting sees the retention of existing habitat trees and recruitment trees, with 10 or more trees per hectare retained across the harvest area. VR2 harvesting is typically used where the density of Type 1 habitat trees is between seven and nine per hectare. It involves higher levels of aggregated and dispersed retention across the coupe, indicatively retaining 20 or more trees per hectare across the harvest area. See Liability Reasons, [65]-[66].

[57] Liability Reasons, [221]-[222].

[58] See, eg, Erlanger v New Sombrero Phosphate Company (1878) 3 App Cas 1218, 1278-9 (Lord Blackburn); Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102, 113-4 (Deane, Dawson, Toohey, Gaudron, McHugh JJ); [1995] HCA 14.

[59] [1995] HCA 18; (1995) 182 CLR 544 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1995] HCA 18.

[61] [1998] HCA 66; (1998) 194 CLR 457 (Gleeson CJ, Gaudron, Gummow, Kirby and Callinan JJ); [1998] HCA 66.

[62] Ibid 494 [127]. We return to the 'existence of [the] necessary equity' in our discussion of ground 2 below.

[63] See above at [37]-[38] for the text of the section and the definition in the glossary.

[64] Environment East Gippsland Inc v VicForests (2010) 30 VR 1; [2010] VSC 335 which is commonly referred to as the 'Brown Mountain' case.

[65] Leadbeater's Possum Appeal, [180]. This is a reference to VicForests v Friends of Leadbeater's Possum Inc [2021] FCAFC 66; (2021) 285 FCR 70 (Jagot, Griffiths and SC Derrington JJ), a decision of the Full Federal Court on appeal from Friends of Leadbeater's Possum Inc v VicForests (No 4) [2020] FCA 704 (Mortimer J).

[66] Liability Reasons, [154]-[175].

[67] Liability Reasons, [176]-[204].

[69] Liability Reasons, [216], [223], [227], [228].

[70] Liability Reasons, [229]-[257].

[71] (1997) 18 WAR 102, 116-120 (Wheeler J).

[73] (2010) 30 VR 1; [2010] VSC 335.

[74] [2009] HCA 41; (2009) 239 CLR 27.

[75] Ibid 46-7 [47] (citations omitted) (Hayne, Heydon, Crennan and Kiefel JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).

[76] [2017] HCA 34; (2017) 262 CLR 362.

[77] Ibid 368 [14] (citations omitted).

[78] [2012] HCA 55; (2012) 250 CLR 503.

[79] Ibid 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ) quoting Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47].

[80] Cf Miller v Martin [2020] VSCA 4, [120] (Niall, Hargrave and Ashley JJA).

[81] DPP v Woodford [2017] VSCA 312, [76] (Weinberg, Osborn, Priest JJA).

[82] That is, because it is a note appearing at the foot of a provision, rather than a marginal note, in a subordinate instrument made after 1 January 2001.

[83] (2015) 49 VR 356; [2015] VSCA 303.

[84] Ibid 369-70 [50]-[51] (Maxwell P, Redlich, Tate and Priest JJA).

[86] See above [30]-[31].

[87] Brown Mountain [2010] VSC 335; (2010) 30 VR 1 [188] quoting Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256, 269 [168] (Preston CJ); [2006] NSWLEC 133.

[98] See the text of s 2.2.2.4 at [37] above.

[99] Liability Reasons, [152]. See also [302], [310].

[100] See the relevant extract from Table 13 at [41] above.

[102] Citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 393 [100] (McHugh, Gummow, Kirby and Hayne JJ); Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, 395-6 [31] (Gaudron, McHugh, Gummow and Callinan JJ); Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146, 162 [47] (Gummow, Hayne, Heydon and Crennan JJ).

[103] Liability Reasons, [224] (citations omitted).

[104] Liability Reasons, [255] (citations omitted).

[106] [1998] HCA 66; (1998) 194 CLR 457, 494 [127] (Gaudron, Gummow and Kirby JJ).

[107] Cf Sydney City Council v Building Owners and Managers Association of Australia Ltd (1985) 2 NSWLR 383, 388 (Mahoney JA, Hope JA agreeing at 385, Priestley JA agreeing at 388); Peek v NSW Egg Corporation (1986) 6 NSWLR 1, 8 (Glass JA).

[108] Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493, 526-7, 530-1 (Gibbs J); Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 36-7 (Gibbs CJ), 41-2 (Stephen J), 52-3 (Aickin J), 77-8 (Brennan J); Day v Pinglen Pty Ltd [1981] HCA 23; (1981) 148 CLR 289, 299 (Mason, Murphy, Aickin, Wilson and Brennan JJ).

[109] Brown Mountain [2010] VSC 335; (2010) 30 VR 1, [88] (Osborn J).

[110] See [99]-[134] above.

[111] See [199]-[221] above.

[112] [2001] FCA 61; (2001) 105 FCR 437, 440 [8] (Gray, Branson and North JJ).

[113] Citing Reasons for Final Orders, [47].

[114] Quoting NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883, 63 [145] (Flick J) (emphasis added).

[115] Citing Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337, 349; Pacific National [2020] FCAFC 77; (2020) 277 FCR 49, [345]-[346].

[116] [1980] HCA 44; (1980) 147 CLR 39.

[118] [1977] UKHL 5; [1978] AC 435, 481 (Lord Wilberforce).

[119] Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, 50.

[120] Reasons for Final Orders, [373].

[121] [2000] WASC 306; (2000) 112 LGERA 234, 269 [172]-[173] (Roberts-Smith J).

[126] Liability Reasons, [345]-[346].

[129] Liability Reasons, [295]-[296].

[130] (2020) 244 LGERA 92; [2020] FCA 704.

[135] Pettitt v Dunkley [1971] 1 NSWLR 376, 387-8 (Moffitt JA).

[136] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 442 (Meagher JA) ('Beale'); Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 18 (Gray J, Fullagar and Tadgell JJ agreeing at 20).

[137] Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [38] (Ashley JA, Warren CJ agreeing at [1], Nettle JA agreeing at [2]); ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31, [78]-[80] (Kyrou AJA, Mandie JA agreeing at [1], Hansen JA agreeing at [2]).

[138] (1997) 48 NSWLR 430, 443-4 (citations omitted).

[139] [2005] VSCA 1, [21] (Nettle JA, Batt JA agreeing at [2], Vincent JA agreeing at [4]) ('Hunter').

[143] Liability Reasons, [223]-[228].

[144] Liability Reasons, [247]-[252].

[146] Liability Reasons, [254]-[257].

[147] Liability Reasons, [263]-[268].

[149] Liability Reasons, [272]-[294].

[151] Liability Reasons, [295]-[296].

[154] Liability Reasons, [304]-[308] (East Gippsland), [309]-[312] (Central Highlands).

[155] See, eg, Liability Reasons, [300].

[157] For convenience, these reasons continue to adopt the terms 'respondents' instead of 'cross-applicants' for EEG and KFF.

[158] Reasons for Final Orders, [14].

[159] (1936) 55 CLR 499.

[160] [1953] HCA 25; (1953) 94 CLR 621, 627.

[161] [2022] FCAFC 78, [58]-[70] (Greenwood, Burley and Halley JJ) ('Shepherd').

[163] Liability Reasons, [297]-[298].

[165] Liability Reasons, [26], [221]-[222], [252]-[253].

[168] Reasons for Final Orders, [12].

[169] Reasons for Final Orders, [14] (emphasis added).