C. Grounds 7 to 15 - The precautionary principle
161 Grounds 7 - 15 challenge the primary judge's findings in relation to the application of the precautionary principle and the evidential basis for those findings.
162 VicForests contends by:
Ground 7 - that the primary judge erred in holding that the precautionary principle in cl 2.2.2.2 of the Code is not subject to two conditions precedent, namely a threat of serious or irreversible environmental damage, and scientific uncertainty as to the environmental damage.
Ground 8 - that the primary judge erred in construing the precautionary principle in cl 2.2.2.2 of the Code as requiring that measures be taken that assist in arresting and reversing the decline, and therefore facilitating the recovery, of the relevant threatened species.
Ground 9 - that the primary judge erred in holding that: cl 2.2.2.2 of the Code requires VicForests to take a precautionary approach when it is "dealing" with a situation where there are threats of serious or irreversible damage, irrespective of the source of those threats; and, as a consequence, much of Dr Davey's opinions were of marginal relevance because his analysis assumed that the relevant question was whether forestry operations in the Logged Coupes posed a serious or irreversible threat to the Greater Glider (emphasis added).
Ground 10 - that the primary judge erred in finding that, in undertaking forestry operations in the Scheduled Coupes, VicForests is not likely to apply the precautionary principle to the conservation of biodiversity values in those coupes, as required by cl 2.2.2.2 of the Code.
Ground 11 - alternatively to Ground 10, that the primary judge erred in finding that VicForests will not use less intensive silvicultural methods in the Scheduled Coupes than has been its historical practice; and that even if VicForests were to conduct its forestry operations in the Scheduled Coupes using less intensive silvicultural methods, this would not lead to any different or better compliance with cl 2.2.2.2 of the Code.
Ground 12 - that the primary judge erred in ruling on 7 June 2019 that the additional coupes evidence was admissible evidence (VicForests did not press this ground).
Ground 13 - that, having admitted the additional coupes evidence, the primary judge erred in finding that that evidence confirmed the primary judge's view that VicForests is unlikely to comply with cl 2.2.2.2 of the Code in the Scheduled Coupes in the foreseeable future.
Ground 14 - that, in circumstances where it was not part of FLP's pleaded case, the primary judge erred in holding that VicForests had failed to comply with cl 2.2.2.2 of the Code in the conduct of its forestry operations due to a lack of practical, specific, attention to the difficulties with Timber Harvesting Exclusion Zones (THEZs) highlighted in Professor Woinarski's report.
Ground 15 - that, in respect of the evidence of Professor Baker, the primary judge erred in finding that Professor Baker was not an independent expert and that Professor Baker's evidence contained "serious flaws" and should be rejected.
163 As to Ground 7, VicForests contends that the primary judge ought to have held that the application of the precautionary principle in cl 2.2.2.2 of the Code and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent: first, a threat of serious or irreversible environmental damage; and second, scientific uncertainty as to the environmental damage, in accordance with the approach taken by Osborn J in Brown Mountain at [187]-[188]. Although Brown Mountain considered the 2007 Code, there is no material difference between that version and the current version for the purposes of this proceeding.
164 Clause 2.2.2.2 has been set out earlier, but it is convenient to restate it here:
The precautionary principle must be applied to the conservation of biodiversity values. The application of the precautionary principle will be consistent with relevant monitoring and research that has improved the understanding of the effects of forest management on forest ecology and conservation values.
165 The definition of 'precautionary principle' in the Glossary to the Code has also been set out earlier but we repeat it here, as well as the definition of 'biodiversity', for convenience:
'biodiversity' means the natural diversity of all life: the sum of all our native species of flora and fauna, the genetic variation within them, their habitats, and the ecosystems of which they are an integral part.
'precautionary principle' means when contemplating decisions that will affect the environment, careful evaluation of management options be undertaken to wherever practical avoid serious or irreversible damage to the environment; and to properly assess the risk-weighted consequences of various options. When dealing with threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
166 The primary judge held, at [843]-[844] of the Principal reasons, that the precautionary approach required by the Code, which must be undertaken, as cl 2.2.2.3 makes clear, in accordance with advice from relevant experts and relevant research in conservation biology and flora and fauna management, and with which VicForests must comply, is:
[i]n its timber harvesting operations (an in planning for them) VicForests must:
(a) carefully evaluate its own management option to wherever practical avoid serious or irreversible damage to the environment (here, relevantly, to the Greater Glider); and
(b) properly assess the risk-weighted consequences of various options.
167 The primary judge held that the second sentence within the definition of the precautionary principle is a secondary or consequential aspect of the obligation under cl 2.2.2.2 which means, that if the circumstances of a person's forestry operations "mean it is 'dealing', objectively, with circumstances where there are likely to be threats of serious environmental damage or threats of irreversible environmental damage, then in undertaking its evaluation and assessment of how (and if) those forestry operations should be conducted, [the person] cannot justify its lack of measures to prevent environmental degradation by relying on a lack of scientific certainty about what it needs to do" (Principal reasons at [845]).
168 This is the essence of the difference of approach between the primary judge and Osborn J: the former interpreting the second sentence as a secondary or consequential obligation; the latter held that it imposes two conditions precedent or thresholds.
169 The statutory expression of the precautionary principle in s 391 of the EPBC Act is as follows:
The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.
170 Similarly worded provisions articulating the principles of ecologically sustainable development have been described as statutory expressions of the precautionary principle: see Australian Conservation Foundation Incorporated v Minister for the Environment [2016] FCA 1042; (2016) 251 FCR 308 at [12]. Section 3A(b) of the EPBC Act provides:
… if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
171 These statutory provisions reflect cl 3.5.1 of the Australian Intergovernmental Agreement on the Environment, 1 May 1992 (Intergovernmental Agreement), contained in the Schedule to the National Environment Protection Council Act 1994 (Cth) which provides:
3.5.1 precautionary principle -
Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measure to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by:
i. careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
ii. an assessment of the risk-weighted consequences of various options.
172 Further, Principle 15 of the Rio Declaration on Environment and Development 1992 (Report of the United Nations Conference on Environment and Development, 3-14 June 1992, Annex 1) states:
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
173 Both of these intergovernmental agreements articulate the precautionary principle in terms that place primacy on the existence of the threshold issues of a threat of serious or irreversible environmental damage and a lack of full scientific certainty. The Intergovernmental Agreement is explicit that these two issues are threshold issues or conditions precedent before proceeding to describe the appropriate approach to decision-making.
174 Section 5(4)(b) of the SFT Act, the statute which requires VicForests to comply with the Code (s 49), uses similar language.
175 These statutory expressions of the precautionary principle encapsulate the two matters that Osborn J draws from the definition in the Code as threshold issues.
176 The text of the Code inverts the statement of the precautionary principle itself with the statement of the actions to be taken when contemplating a decision.
177 The primary judge reasoned (Principal reasons at [836]) that there were two relevant Operational Goals (where an 'Operational Goal' is defined in the Code as "the desired outcome or goal for each of the specific areas of timber harvesting operations to meet the Code Principles") for cl 2.2.2. These Operational Goals are:
…
Timber operations in State forests specifically address biodiversity conservation risks and consider relevant scientific knowledge at all stages of planning and management.
Harvested State forest is managed to ensure that the forest is regenerated and the biodiversity of the native forest is perpetuated.
178 The primary judge continued:
838 Seven mandatory actions are stipulated to achieve [the] first Operational Goal. One is cl 2.2.2.2. A mandatory action is defined in the Code [as] an action "to be conducted in order to achieve each operational goal". Clause 1.2.8 states:
Timber harvesting managers, harvesting entities and operators must undertake all relevant mandatory actions to meet the objectives of the Code. Mandatory Actions are focussed on practices or activities. Failure to undertake a relevant Mandatory Action would result in non-compliance with this Code.
(Emphasis added.)
839 There is nothing equivocal or optional about these provisions. They are not conditioned on VicForests' satisfaction, or any other person's satisfaction, that the mandatory actions are appropriate or justified. They are consistent with the obligatory language in s 46 of the SFT Act.
840 The applicant's submissions paid attention to cl 2.2.2.2 itself, but VicForests' did not. The first sentence of cl 2.2.2.2 of the Code provides:
The precautionary principle must be applied to the conservation of biodiversity values.
(Emphasis added.)
841 There is no equivocation in this statement. To comply with the Code, in its timber harvesting, VicForests must apply the precautionary principle to the conservation of biodiversity values. And how must it do so? It is clear from the definition of the precautionary principle, that VicForests is to do so by:
when contemplating decisions that will affect the environment, [engaging in] careful evaluation of management options be undertaken to wherever practical avoid serious or irreversible damage to the environment; and to properly assess the risk-weighted consequences of various option.
179 The primary judge was not persuaded that she should adopt the approach taken by Osborn J to the operation of the precautionary principle in Brown Mountain, essentially on the basis that Osborn J had accepted the analysis of the principle as it had been stated by Preston CJ in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256. The primary judge observed that Telstra was concerned with a different text and an entirely different statutory scheme (Principal reasons at [827]), and that statutory context is important, as is the particular textual expression of the precautionary principle, in its particular context (Principal reasons at [819]).
180 Despite Osborn J's acceptance of the principle as stated by Preston CJ, albeit having arisen in a different statutory context, Brown Mountain itself was concerned with cl 2.2.2.2 of the Code. Osborn J articulated the principles relevant to that provision:
if the conditions precedent are satisfied (a threat of serious or irreversible environmental damage and a lack of full scientific certainty), the burden of showing the threat of serious or irreversible environmental damage will not occur shifts to the proponent of the relevant action (Brown Mountain at [199]);
the precautionary principle permits the taking of preventative measures without having to wait until the reality and seriousness of the threat have been fully known (Brown Mountain at [201]);
the precautionary principle is not however directed to the avoidance of all risks (Brown Mountain at [203]);
the degree of precaution appropriate will depend on the combined effect of the seriousness of the threat and the degree of uncertainty (Brown Mountain at [204]);
the margin for error in respect of a particular proposal may be controlled by an adaptive management approach (Brown Mountain at [205]);
the precautionary principle requires a proportionate response. Measures should not go beyond what is appropriate and necessary in order to achieve the objective in question. The principle requires the avoidance of serious or irreversible damage to the environment 'wherever practical'. It also requires the assessment of the risk-weighted consequences of optional courses of action (Brown Mountain at [207];
a reasonable balance must be struck between the cost burden of the measures and the benefit derived from them (Brown Mountain at [208]);
the relevant notion of proportionality is however not readily captured by traditional cost benefit analysis (Brown Mountain at [209]);
the triggering of the precautionary principle does not necessarily preclude the carrying out of a particular land use or development proposal (Brown Mountain at [210]); and
the precautionary principle may also require consideration in the context of other principles of environmentally sustainable development (Brown Mountain at [211]).
181 The primary judge observed that it was not clear whether VicForests embraced the aspect of Osborn J's reasoning whereby, once the two conditions precedent have been established, there is a shifting of the evidential burden of proof to show that the threat does not in fact exist, or is negligible (Principal reasons at [817]).
182 The primary judge considered it unnecessary to grapple with the shifting of the burden of proof to VicForests about the non-existence of a threat to the threatened species if Osborn J's reasoning were adopted because the argument put by FLP in these proceedings was not put to Osborn J and so his approach could be distinguished (Principal reasons at [818]).
183 It is not necessary to resolve this aspect of the appeal. In short, to the extent that the primary judge may have erred in departing from Brown Mountain without finding that it was plainly wrong, the error is immaterial. The primary judge held that, even applying the approach taken by Osborn J, she would have found that the precautionary principle was engaged as forestry operations in the CH RFA region do pose a serious threat to the Greater Glider (Principal reasons at [829]).
184 Accordingly, Ground 7 cannot succeed.
185 As to Ground 8, VicForests contends that the primary judge ought to have held that, properly construed, the precautionary principle in cl 2.2.2.2 of the Code is not directed to the avoidance of all risks. It is said that it is at least implicit in the Principal reasons that the primary judge did not consider the principles identified by Osborn J as encompassed in the preferred construction of the precautionary principle in the Code and that a departure from Osborn J's construction required a finding that his Honour was plainly wrong; no such finding was made.
186 The primary judge did not find that all risks must be avoided. To the extent that an implication to that effect is sought to be found in the Principal reasons, VicForests' contention cannot succeed.
187 VicForests contends further that, to the extent that the primary judge construed the precautionary principle as requiring that measures be taken to arrest and reverse a decline in threatened species at [630] of the Principal reasons, that elevates a purpose of environmental protection above timber production and should not be preferred. FLP argues that the conclusion that the Code, including cl 2.2.2.2, contemplates that species be assisted to recover was arrived at on the basis of an orthodox process of statutory construction.
188 The primary judge's analysis of this point commenced with s 3(2)(e)(i) of the EPBC Act (Principal reasons at [626]), which provides that, in order to achieve its objects, the Act:
(e) enhances Australia's capacity to ensure the conservation of its biodiversity by including provisions to:
(i) protect native species (and in particular prevent the extinction, and promote the recovery, of threatened species) and ensure the conservation of migratory species;
…
(emphasis added)
189 The primary judge then referred to s 270(1) of the EPBC Act which describes the content and purpose of Recovery Plans: "to stop the decline of, and support the recovery of, the listed threatened species … so that its chances of long-term survival are maximised" (Principal reasons at [627]). Her Honour considered that recovery forms part of the objective present in the Code, expressed at cl 1.3, "biological diversity and the ecological characteristics of native flora and fauna within forests are maintained" (Principal reasons at [629]). The primary judge continued (at [630]):
To similar effect are the operational goals in cl 2.2.2 of the Code (see [137] above). In order for a threatened species to be "maintained" as part of the maintenance of biodiversity, its decline must be arrested and reversed.
190 The primary judge's conclusions reflect the provisions of the EPBC Act and the Code. In particular, in specifying the relationship between the Code principle that biological diversity and ecological characteristics of native flora and fauna within forests is maintained, the operational goals in Table 1 of the Code require that harvested native forest is managed to ensure the forest is regenerated and the biodiversity of the native forest is perpetuated. To perpetuate biodiversity, including the long-term survival of the Greater Glider and Leadbeater's Possum, it is necessary to arrest and reverse their rate of population decline. If this is not done it will not be possible for the biodiversity of the native forest to be perpetuated without measures to assist the populations of these threatened species to recover.
191 Ground 8 of the appeal must be rejected.
192 As to Ground 9, VicForests contends that the primary judge ought to have held that cl 2.2.2.2 of the Code requires the relevant forestry operation to pose a threat of serious or irreversible environmental damage before the precautionary principle is engaged and Dr Davey's opinion that forestry operations undertaken in the Logged Coupes did not pose a threat of serious or irreversible damage to the Greater Glider should have been taken into account.
193 It is argued that, when construing the text of cl 2.2.2.2, the 'threats' referred to in the second sentence of the precautionary principle are threats from decisions that will affect the environment within the meaning of the first sentence. In the context of this proceeding, the relevant decisions are to conduct timber harvesting (or forestry) operations in a particular manner; those operations are therefore the subject of the analysis as to whether they constitute "threats of serious or irreversible environmental damage" within the meaning of the second sentence and the conditions precedent. It is said that this is consistent with FLP's pleaded case as opened.
194 VicForests argues that the primary judge's conclusion (Principal reasons at [847] and [850]) that the 'threats' do not need to be only from forestry operations, in the absence of conducting an analysis as to whether Osborn J was plainly wrong in that regard, was erroneous. There is, however, nothing in the reasons of Osborn J in Brown Mountain that compels such a narrow construction of the precautionary principle. To the contrary, Osborn J drew attention specifically to the factors identified by Preston CJ in Telstra that may be relevant when assessing whether the proposed activities constitute a threat (Brown Mountain at [190]). Those factors included:
(a) the spatial scale of the threat (for example, local, regional, statewide, national, international);
(b) the magnitude of possible impacts on both natural and human systems;
(c) the perceived value of the threatened environment;
(d) the temporal scale of possible impacts, in terms of both the timing and the longevity (or persistence) of the impacts;
(e) the complexity and connectivity of the possible impacts;
(f) the manageability of possible impacts having regard to the availability of means and the acceptability of means;
(g) the level of public concern, and the rationality of and scientific or other evidentiary basis for the public concern; and
(h) the reversibility of the possible impacts and, if reversible, the time frame for reversing the impacts and the difficulty and expense of reversing the impacts.
195 It is said then that, on the correct construction of the precautionary principle, Dr Davey's opinion was directly relevant to an analysis of whether the conditions precedent for the engagement of the precautionary principle were met and the primary judge erred in finding that his opinions were of "marginal relevance" (Principal reasons at [848]).
196 FLP argues that this constitutes an overly narrow view of the obligation imposed by cl 2.2.2.2 and mischaracterises the primary judge's reasons. FLP points out that the primary judge:
considered the operational goals of cl 2.2.2 - to ensure that "[t]imber harvesting operations in State forests specifically address biodiversity conservation risks" and that "[h]arvested State forest is managed to ensure that forest is regenerated and the biodiversity of the native forest is perpetuated" (Principal reasons at [836]-[837]);
recognised that the Code stipulates mandatory actions which must be conducted in order to achieve the operational goal, where, according to cl 1.2.8, "[f]ailure to undertake a relevant Mandatory Action would result in non-compliance with the Code" (Principal reasons at [838]);
said that one such mandatory action is that set out in cl 2.2.2.2, and based on the first sentence of the definition of the precautionary principle, the obligation to apply the precautionary principle arises whenever VicForests is contemplating decisions in respect of timber harvesting operations (and planning for them) that will affect the environment (Principal reasons at [842]). This required VicForests to "carefully evaluate its management options to wherever practical avoid serious or irreversible damage to the environment" (here, the Great Glider), and "properly assess the risk weighted consequences of various options" (Principal reasons at [843] and [849]);
as to the second sentence of the precautionary principle, her Honour stated at para [845] of the Principal reasons that it means
… if the circumstances of VicForests' forestry operations mean it is "dealing", objectively, with circumstances where there are likely to be threats of serious environmental damage, or threats of environmental damage, then in undertaking its evaluation and assessment of how (and if) those forestry operations should be conducted, VicForests cannot justify its lack of measures to prevent environmental degradation by relying on a lack of scientific certainty about what it needs to do…;
and
it was in that context that the primary judge said that when VicForests is conducting timber harvesting operations in native forests where the Great Glider is likely to be present, VicForests is 'dealing' with that threat of serious damage.
197 We accept FLP's submission that there was no error in the primary judge's reasons relating to this issue. As explained above, her Honour's analysis properly took into account the text and context of cl 2.2.2.2. Further, VicForests' construction would fail to achieve the operational goals of cl 2.2.2. Ground 9 cannot succeed.
198 As to Ground 10, VicForests contends that the primary judge ought to have found that:
there were no sufficiently advanced proposals to conduct timber harvesting operations in any of the Scheduled Coupes to enable any 'threat' to be properly identified and analysed, and therefore, no engagement of the conditions precedent to the precautionary principle in cl 2.2.2.2 of the Code; and
alternatively, the evidence, when considered as a whole, does not establish a threat of serious or irreversible damage to the Greater Glider by reason of VicForests' proposed forestry operations in the Scheduled Coupes.
199 VicForests contends that the evidence before the primary judge revealed that the manner in which the Scheduled Coupes might be harvested was uncertain. Any coupe plans that had in fact been prepared in respect of those coupes were stale and out of date. According to VicForests, relevant uncertainties that could impact on the configurations of the coupes to be harvested include all the matters in subpara 6.3(c)(v) of VicForests' Defence filed in the proceedings before the primary judge. Similarly to its position in MyEnvironment, VicForests argues that the primary judge was not in a position to identify any 'threat' with respect to the Scheduled Coupes since the extent to which VicForests will seek to log these coupes, by what means, and in what configuration, is uncertain. Further, even if it be accepted that Greater Gliders have been detected in the Scheduled Coupes, it is unclear whether any actual timber harvesting operations will constitute the necessary threat to satisfy one of the conditions precedent to the engagement of the precautionary principle.
200 In the further alternative, VicForests contends that, if the precautionary principle is engaged and the threat in the Scheduled Coupes is not negligible, VicForests will carefully evaluate management options in response to the threat such that it will comply with cl 2.2.2.2 of the Code in respect of the Scheduled Coupes. In other words, the threat posed by prospective forestry operations in the Scheduled Coupes will be addressed by adaptive management and the measures alleged to be required are not proportionate to the threat in issue.
201 VicForests argues that there is nothing in the formulation of the precautionary principle which requires decision-makers to give the 'serious or irreversible damage' factor overriding weight compared to other factors required to be considered, such as social and economic factors, when deciding how to proceed. Properly construed, the precautionary principle requires caution, but it does not mandate inaction, and it will not generally dictate one specific course of action to the exclusion of others. According to VicForests, it should not be used to avoid all risks.
202 VicForests also argues that the primary judge ought to have found, on the whole of the evidence and on the proper construction of the precautionary principle, that whatever may have been the historical position, the development and implementation of more adaptive silvicultural practices, together with more widespread, pre-harvest surveys, constitutes a sufficient degree of cautiousness in the circumstances such that, assuming the precautionary principle was engaged, it had not been breached.
203 FLP challenges this ground on the basis that it is a challenge to a finding of a future fact by the primary judge in circumstances where VicForests does not point to any specific error in the reasoning.
204 Our appellate function is confined to correcting error: see Branir Pty Ltd v Owston Nominees Pty Ltd (No 2) [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[22]. To establish error, VicForests must persuade us that the primary judge's factual findings were "glaringly improbable", were contrary to "incontrovertible facts or uncontested testimony", or were "contrary to compelling inferences": Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28]-[29]; see also Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 at [2]-[10], [45]-[54] and [169] and Queensland v Masson [2020] HCA 28; (2020) 381 ALR 560 at [119]. VicForests has not come close to satisfying the requisite standard for appellate correction of any fact finding error by the primary judge. VicForests' submissions do no more than argue for a different result based on the same evidence which the primary judge carefully evaluated with the benefit of a lengthy hearing, during which her Honour was able to form an impression of each witness as they gave evidence, and a view. Her Honour's careful evaluation culminated in the Principal reasons containing 1464 closely considered paragraphs.
205 VicForests relied on evidence from Mr Paul to support its case that there were no sufficiently advanced plans in place to determine if there was a 'threat' to the Greater Glider in the relevant area. The primary judge's reservations about Mr Paul's evidence are relevant and cannot be disregarded as VicForests' assumes is permissible (see the Principal reasons at [256]-[263], [446]-[448], [954], [992(g)], [1009], [1012]-[1015], [1027], [1052]-[1054], [1142]-[1144], and [1201]-[1202]. In summary:
Mr Paul was not the appropriate person within VicForests to be giving evidence to the Court about the certainty attaching to VicForests' policy changes and the difference it was likely to make on the ground to its forestry operations;
Mr Paul's evidence was not persuasive about key issues, involved overreach, demonstrated his resistance to obvious propositions and itself was consistent with the view that "the attitude within VicForests to conservation of threatened species, including the Greater Glider: that it is an inconvenience, an interruption to its timber harvesting programs, not a topic it wishes to be proactive about and something about which it has a defensive and negative approach";
Mr Paul's evidence showed "no awareness at all about the complex habitat requirements of the Greater Glider (or any other hollow-dependent species), and involves a denial of the effects of forestry operations"; and
other evidence showed how unreliable Mr Paul's generalisations were.
206 The Principal reasons at [1118]-[1178] disclose no error, yet that fact has not been confronted by VicForests. It merely asserts that the primary judge erred and should have reached a different conclusion based on evidence identified by VicForests which the primary judge evaluated but was not persuaded should lead to the conclusion proposed by VicForests that its plans were insufficiently certain to enable any findings to be made.
207 In the course of her Honour's reasoning, the primary judge:
explained why her conclusion based on the evidence in this case was different from that reached by Osborn JA (as his Honour then was) in MyEnvironment which related to different facts and different evidence (Principal reasons at [1118], [1123]-[1127]);
considered the evidence of witnesses other than, and as well as, Mr Paul (Principal reasons at [1128]-[1156]);
analysed the TRP (Principal reasons at [1159]-[1161]);
evaluated VicForests' practices (Principal reasons at [1162]-[1165]);
explained why VicForests' allegedly new silvicultural methods were no answer to FLP's case (Principal reasons at [1165]); and
explained why the pre-harvest survey program did not lead to any different view (Principal reasons at [1166]-[1174]).
208 The fact that the primary judge reached a different conclusion on the evidence before her than that reached by Osborn JA on the evidence before him in MyEnvironment is incapable of establishing error.
209 VicForests' attempt to rely on its submissions before the primary judge about evidence which it contends the primary judge should have accepted is misconceived for the reasons given by FLP. It is sufficient to record FLP's submission in response to demonstrate why VicForests' argument cannot sustain any appellate interference with the primary judge's factual conclusion. There was cogent competing evidence which the primary judge preferred. As such, it could never be said that her Honour's factual findings were "glaringly improbable", contrary to "incontrovertible facts or uncontested testimony", or "contrary to compelling inferences". As FLP submits:
The submission made at VS [62], which is to the effect that VicForests relies on the evidence at C.2.3 of its closing submissions is not a submission that identifies error in the trial judge's reasons and this Court should not entertain a submission of that kind on appeal. If the Court is minded to entertain that submission, FLP relies on the evidence summarised at section C.iii.1 at [68]-[105] of its closing submissions, including that of Dr Smith in CRI Tab 91, and accepted at J [1038]-[1076]; the evidence accepted at J [1023]-[1076]; the evidence summarised at section C.iii.2 [106]-[174] and Appendix A of its closing submissions and [52]-[72] of its closing submissions in reply, including that of Dr Smith at CRI Tabs 52, 64, and 83; and the evidence summarised at C.iii.4.a [206]-[221] of its closing submissions as, and the findings at J [570]-[600].
210 VicForests' alternative argument in relation to Ground 10 is that if the precautionary principle is engaged and the threat is not negligible, the primary judge should have found that it will apply a sufficiently cautious approach by reason of its new silvicultural systems and the pre-harvest surveys which will result in it complying with cl 2.2.2.2 of the Code. This argument was evaluated and rejected by the primary judge at [1157]-[1174] of the Principal reasons. VicForests has not explained why her Honour erred in her conclusion, nor can it be said that her Honour at any time assumed that the precautionary principle required that all risks be avoided.
211 VicForests' additional oral arguments are equally unpersuasive. It is apparent that the primary judge considered the geographic range of the Greater Glider at [425]-[430] of the Principal reasons. Her Honour explained why the habitat mapping was unreliable (Principal reasons at [432]). She explained why the alleged "abundance" of Greater Gliders in reserves and national parks was not proven (Principal reasons at [974]-[977]). VicForests' contrary submissions are rejected.
212 The primary judge, having heard the evidence, concluded that "there is ample probative basis for the Court to find that forestry operations in the Scheduled Coupes are likely to occur in the foreseeable future, and, further, are likely to be carried out in a way which will not be compatible with VicForests' obligations under cl 2.2.2.2, in relation to the Greater Glider" (Principal reasons at [1123]). The primary judge rejected VicForests' contentions about its proposed changes to its silvicultural practices (Principal reasons at [1164]) and was "not persuaded that in terms of what occurs on the forest, VicForests is likely to change its practices to any meaningful degree" (Principal reasons at [1165]).
213 No error is shown in the primary judge's reasoning that led to the finding that VicForests is not likely to comply with cl 2.2.2.2 of the Code in its forestry operations in the Scheduled Coupes (Principal reasons at [1178]). Ground 10 cannot succeed.
214 In the alternative, by Ground 11, VicForests submits, that the primary judge ought to have found that, as foreshadowed in the May 2019 Harvesting and Regeneration Systems document, VicForests will, in some or all of the Scheduled Coupes, use less intensive silvicultural methods than it has historically used, and this will reduce or negate any threat of serious or irreversible damage to the environment and, in any event, constitute a careful evaluation of management options in response to any threat to the environment.
215 FLP argues that, in substance, this too is an allegation of error going to a finding of a future fact and that no error in the primary judge's reasons has been established.
216 Ground 11 is another challenge to the rationality of the primary judge's process of fact finding founded on the proposition that certain evidence which the primary judge admitted (in respect of which there is no challenge as Ground 12 of the appeal is not pressed) could not "rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue" as required by s 55 of the Evidence Act 1995 (Cth).
217 VicForests' contentions are untenable. It has failed to appreciate that evidence need not make a fact in issue more probable than not to be relevant and admissible under s 55 of the Evidence Act. It need only affect, directly or indirectly, the assessment of that probability. The assessment of the capacity of the evidence to affect the probability of the fact in issue is to be made in the context of the evidence as a whole: see Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 at [177]. Relevance requires only a logical connection between the evidence and the fact in issue: see Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [81].
218 Once these principles are understood it is obvious that VicForests' submissions in respect of Ground 11 are untenable.
219 It cannot be the case that the evidence of VicForests' past timber harvesting activities has no logical connection to the primary judge's findings about VicForests' likely future timber harvesting activities. The fact (if it be the fact) that (a) only a small portion of the coupes was harvested; and (b) there was no expert evidence that harvesting in those particular configurations, or within the coupes themselves, posed a threat of serious or irreversible damage to Greater Glider, is immaterial. It was rational for the primary judge to use evidence of VicForests' past conduct in assessing probabilities relating to its future conduct.
220 Nor was the primary judge bound to accept VicForests' proposition that as it was in the process of changing its silvicultural methods, a contrary conclusion should be reached, or that, as posited in Ground 10, no conclusion about its likely future conduct could be reached at all. For one thing, there is no challenge by VicForests to the finding of the primary judge at [992] of the Principal reasons that VicForests would not implement any new or different silvicultural methods in the Scheduled Coupes. This finding was made on the basis of the reasoning at [993]-[1037] of the Principal reasons. For another, the primary judge explained why she was not satisfied that, if implemented, VicForests' purportedly new silvicultural methods were likely to comply with cl 2.2.2.2 of the Code in conducting forestry operations in the Scheduled Coupes at [1038]-[1076] of the Principal reasons. It is not possible to accurately summarise these closely reasoned paragraphs which expose precisely why the primary judge could and did reach the conclusion she did by an impeccable chain of logical reasoning.
221 VicForests' submission that the fact that it did not change its silvicultural methods when the TRP was reissued in 2019 is not rationally capable of proving anything because: (a) the TRP only identifies the most intensive silvicultural method that may be used in a coupe but does not designate the silvicultural method that will be used in a coupe; and (b) the TRP does not detail how operations are to be carried out, is unsustainable. Rather, it discloses the lack of merit of Ground 11. The fact that VicForests had identified the most intensive silvicultural method that may be used in a coupe is logically connected to the conclusion that its future silvicultural methods were likely to be no different. The primary judge, in effect, rejected the same argument at [994] of the Principal reasons when observing after a detailed explanation of the status and function of the TRP that:
If VicForests publishes the Timber Release Plan and thereby announces it will harvest coupes by a particular method, it would seem (at least) counterproductive and inappropriate if it does so in fact intending to use different methods.
222 The same conclusion applies to VicForests' objection to the primary judge taking into account "structural and organisational features of VicForests, and of its conduct in this proceeding" (Principal reasons at [992(d)], [1007] and [1009]). The primary judge explained in detail why she had reached the conclusions she did in this regard. Her Honour's process of reasoning consistently exposes the logical connection between the evidence and her findings: see, for example, the detailed process of reasoning in the Principal reasons at [1007]-[1015]. For example, the contention of VicForests that its refusal to admit certain facts in response to a notice to admit proved nothing (because its position may have been the result of legal or expert advice or any number of matters) is misconceived in the face of the primary judge's actual process of reasoning. The primary judge identified in the Principal reasons at [1011] that VicForests failed to admit obvious facts that were the very basis for the listing of the Greater Glider under the EPBC Act. But the listing of the Greater Glider under the EPBC Act was an essential foundation for the proceeding. As the primary judge explained in the Principal reasons at [1012]:
If VicForests, as a statutory agency charged with the conservation of biodiversity values based on relevant monitoring and research, cannot accept the very factual basis for the listing of the species, then this Court can have no confidence that VicForests is likely in the foreseeable future to modify its forestry operations in the CH RFA region in a way which is intended to be more protective of hollow-dependent species such as the Greater Glider (and the Leadbeater's Possum for that matter) from the adverse impacts of its forestry operations.
223 VicForests also objected to the primary judge's description of it as a statutory agency charged with the conservation of biodiversity values based on relevant monitoring and research. VicForests was established by the Governor making an Order in Council under s 14 of the State Owned Enterprises Act 1992 (Vic). It is true that the Order identifies the purpose of VicForests as creating a statutory body to undertake the management and sale of timber resources in Victorian State forests on a commercial basis. However, in so doing, VicForests is bound by the Code which expressly provides in cl 2.2.2.2 that the precautionary principle must be applied "consistent with relevant monitoring and research". The primary judge's description of VicForests is not 'telling' of error at all. Rather, VicForests' submission is consistent with the primary judge's view that VicForests' conduct makes it appear unlikely that it will change its silvicultural methods in practice (as opposed to mere theory).
224 Otherwise, the primary judge did not misapply the precautionary principle by requiring that VicForests' silvicultural methods involve no risk to the threatened species. So much is apparent from the focus of the primary judge's findings that:
VicForests did not have a long term commitment to "changes in timber harvesting methods that would better advance the protection and conservation of threatened species which depend on the native forest it is currently permitted to log" (Principal reasons at [1007]);
it is not likely that "VicForests will in fact change the way it carries out its forestry operations so that the Greater Glider secures improved protection from forestry operations and its population decline is not only arrested but begins to be reversed (Principal reasons" at [1015]); and
"VicForests presently is reluctant to accept the need to modify, and to plan to modify, its forestry operations to avoid, wherever practical, further serious damage to hollow-dependent species, including, and in particular, the Greater Glider" (Principal reasons at [1036]).
(emphasis added).
225 Finally with respect to Ground 11, VicForests' argues that the evidence established that it was complying with the precautionary principle as set out in cl 2.2.2.2 of the Code. Again, however, the fact that the primary judge rejected VicForests' submissions below to the same effect does not establish error.
226 No error on the part of the primary judge has been established in relation to Ground 11.
227 As to Ground 13, VicForests contends that the primary judge ought to have held, in circumstances where there were no sufficiently advanced proposals to conduct timber harvesting operations in any of the Scheduled Coupes to enable any 'threat' to be properly identified and analysed with respect to those coupes, that the 'additional coupes evidence' was not rationally capable of affecting the issue of whether VicForests is unlikely to comply with cl 2.2.2.2 of the Code in the foreseeable future. The 'additional coupes evidence' was evidence of the conduct by VicForests of forestry operations in 18 coupes, outside the Logged Coupes and the Scheduled Coupes (Principal reasons at [1077]).
228 FLP relies on its submissions made under Grounds 10 and 11 - namely, that findings of future facts should not be lightly overturned.
229 The primary judge's conclusion in relation to the evidence about the additional coupes is at [1117] of the Principal reasons:
For these reasons, I find that the evidence about the additional coupes confirms the views I have formed on the remainder of the evidence about VicForests' past non-compliance with cl 2.2.2.2 and the view that VicForests is unlikely to comply with cl 2.2.2.2 in the foreseeable future. It has been told since 2014 that it needs to take a more precautionary approach: it not only has not does so; it actively resists doing so and contests the application of the precautionary principle in its forestry operations where taking a precautionary approach requires different conduct on the ground.
230 The first point to be made about Ground 13 is that even if the ground is correct as articulated, the primary judge said this at [1078] of the Principal reasons:
At the outset, I should make it clear that even without this evidence, I would have reached the same conclusions that I have: namely, that VicForests is not likely to conduct its forestry operations in the Scheduled Coupes in a manner which complies with cl 2.2.2.2 of the Code. The evidence about the additional coupes confirms my conclusions, but is not necessary to them.
231 In other words, any alleged error by the primary judge about the evidence of the additional coupes is immaterial.
232 The second point is that VicForests has again failed to grapple with the requirements of s 55 of the Evidence Act discussed above.
233 The third point is that our rejection of Grounds 10 and 11 above necessarily involves the rejection of Ground 13. The closely reasoned passages at [1077]-[1117] of the Principal reasons repeatedly demonstrate the logical connection between the evidence about the additional coupes and the primary judge's conclusion that VicForests was not likely to comply with cl 2.2.2.2 of the Code in the future. This may explain why VicForests did not in fact put to the primary judge that the evidence about the additional coupes was irrelevant under s 55 of the Evidence Act as apparent from the Principal reasons at [1083]-[1090]. As a result, it cannot now contend that the primary judge erred by relying on the evidence.
234 For these reasons Ground 13 must be dismissed.
235 As to Ground 14, VicForests contends that the primary judge ought not to have had regard to the aspect of Professor Woinarski's report relating to the Timber Harvesting Exclusion Zone (THEZ) in considering whether VicForests had failed to comply with cl 2.2.2.2 of the Code in the conduct of its forestry operations. As was said by the primary judge, it was not part of FLP's pleaded case that the THEZs were ineffective. Nevertheless, the primary judge pointed to difficulties with THEZs highlighted in Professor Woinarski's report as "another specific example of VicForests' failure to comply with cl 2.2.2.2 of the Code in the conduct of its forestry operations. While it is not part of the pleaded case, it is an example which confirms my satisfaction about the findings I have [made] on the applicant's pleaded case" (Principal reasons at [1369]).
236 VicForests argues that, given the absence of any plea on this issue, it did not adduce any evidence about the effectiveness or otherwise of THEZs, nor did it cross-examine Professor Woinarski on this issue. To make a finding in those circumstances, it argues, was a denial of procedural fairness.
237 FLP argues that the effectiveness of THEZs was contested and addressed by both parties. It says also that, in any event, the finding made by the primary judge confirmed a state of satisfaction already reached.
238 FLP's submissions must be accepted. At [1369] of the Principal reasons the primary judge observed that FLP had not pleaded that VicForests had breached cl 2.2.2.2 of the Code in respect of the Leadbeater's Possum. It had, however, pleaded that VicForests' conduct involved a significant impact on the Leadbeater's Possum. The evidence about the THEZs was relevant to the significance of the impact of VicForests' conduct on the Leadbeater's Possum. It was part of one of the central issues for resolution as identified in the Principal reasons at [242(d)]. Contrary to VicForests' arguments, both parties led evidence about the effectiveness of THEZs to ameliorate potential significant impacts on the Leadbeater's Possum. VicForests relied in this regard on evidence from Dr Davey and Mr Paul. FLP relied on the evidence of Professor Woinarski. On the evidence, the issue of the effectiveness of THEZs as an ameliorating measure was raised. FLP cross-examined Dr Davey about his evidence. VicForests chose not to cross-examine Professor Woinarski on this issue. The primary judge assessed the evidence at [1354]-[1369] of the Principal reasons, including recording at [1363] part of the hearing during which the primary judge put to Professor Woinarski aspects of the evidence of Dr Davey in order to obtain Professor Woinarski's response.
239 Further, as the Principal reasons at [1369] disclose, the evidence about the THEZs merely confirmed the primary judge's satisfaction, reached on the basis of other evidence, that VicForests' conduct involved a significant impact on the Leadbeater's Possum. In these circumstances, there can be no practical injustice to VicForests even if her Honour's conclusion involved a denial of procedural fairness to VicForests (which it did not). The contention that these circumstances involve any possible denial of procedural fairness to VicForests is unpersuasive, to say the least.
240 Accordingly, Ground 14 must be dismissed.
241 As to Ground 15, VicForests contends that the primary judge ought to have found that Professor Baker was an independent expert and accepted Professor Baker's evidence that modelling showed that any timber harvesting operations in the Scheduled Coupes would have no discernible impact on total habitat hectares for most coupes, and where it did have an impact, it was typically minor and transitory.
242 As FLP submits, a trial judge's assessment of a witness, expert or lay, is quintessentially a finding for a trial judge who has the advantage of seeing their evidence. There is no inconsistency between the finding that Professor Baker was not entirely independent and that he was candid in particular respects. The primary judge's findings as to why she preferred the evidence of those who had directly observed the habitat of the Leadbeater's Possum rather than the theoretical evidence given by Professor Baker based upon desktop modelling cannot be impugned.
243 Ground 15 cannot be sustained.