Brown Mountain old growth under attack by VicForests
Wednesday, March 31st, 2010Reports:
(most recent at top)Brown Mountain Landmark Court Case [Melbourne Supreme Court, 23-25 March 2010]
Court case finishes – summary of the final 3 days.
Quoted Source: Environment East Gippsland 20100330, http://www.eastgippsland.net.au/‘The final days of summing up both VicForests’ and EEG’s arguments were heard in the Melbourne Supreme Court on Tuesday, Wednesday and Thursday (23rd-25th March). These were the last submissions presented to Justice Osborn who heard the 17 day trial that started on the 1st March.
‘In summary – both sides presented their condensed arguments from the past 3 weeks. Early in the case, the economic claims were not allowed as VF had not made any allegations in its defence about economic impact, and there was only summary evidence supplied by VF, without details. The arguments focused on the laws covering protection of threatened species and how VF did or didn’t abide by them. Justice Osborn has reserved his decision . Our legal team have said he could hand this down in a month or two or three … Despite some fairly revealing and insightful evidence being given and some quite startling information to come out of cross examination of witnesses, the decision will be looking at the complexities of the laws governing forests and wildlife management.
‘A support team of about 45 people attended the Melbourne start of the case to show that there was widespread interest in Brown Mountain (see pics). Thanks everyone who came along and who sat through the proceedings.
1st Day (Tues) – the defence (VicForests) lawyers had the stage on day 1 and delivered their case.
‘To those who hadn’t heard the facts, arguments and cross examinations of the previous 3 weeks, it could have sounded fairly reasonable and even worrying. Read our responses to their arguments below. VF lawyers’ arguments consisted of the following:
- EEG didn’t have standing to take the case to court as we are too small a group, don’t have a special interest in Brown Mountain, only an emotional or intellectual interest. The fact that we didn’t apply to be on the local Shire environment committee, and the claim that we didn’t take part in the Nat Estate study on 1990 – (but we actually did) and various other arguments were used to attempt to argue we shouldn’t be able to sue VicForests.
- It was DSE that should have looked out for threatened species, not VicForests. VF can’t change zonings.
- The Potoroo wasn’t ‘detected’ within the meaning of the action statement (FFG Act) – although the animals and the sites were confirmed, the full two weeks of footage was withheld by EEG (under instruction from our lawyers) until late 2009 – making the authorities suspicious of possible tampering and was the reason given by VF for not protecting the area.
- Language in the FFG Act and Sustainable Forests (Timber) Act, is not enforceable.
- VF noted that the Forest Management Plan was out of date (ended in 2006), which generated much discussion. Justice Osborn pointed out that if it was no longer applicable, then all logging in EG was illegal as the FM Plan is needed before forest can be logged. That point was then quickly resolved.
- The Precautionary Principle, which was a major argument in the whole case. It was first claimed by VF not to give rise to any legally enforceable obligation against it, and even if it did, VF claimed it had observed the PP even if it wasn’t thought to be regarded as enough precaution.
- VF claim Potoroo wasn’t ‘detected’ to their or DSE’s satisfaction,
- On Quolls – there are 75 already protected in EG and that was enough,
- For the new species of crayfish – it’s still being named and so doesn’t have a prescription for protection and the 100 metre buffer around the creek will protect it
- Sooty and Powerful Owls – only dusk calls detected but no confirmed nesting or roosting sites so no need to protect. Plus there are enough Sooty Owls Management Areas and Powerful Owl Management Areas, despite some evidence from DSE suggesting the protection zone targets had not been reached.
- Giant Burrowing Frogs – even if it is high quality and likely habitat, none have yet been detected.
- Hollow Bearing Trees – logging prescriptions are claimed to look after them.
- Gliders are there in high numbers, yes – but it’s not for VF to protect them and 100 mts along creek should do anyway.
- The Precautionary Principle requires caution, but not total infallibility. Actions to express adherence to the PP can be many. VF argued that a 100 metre buffer along the creek was caution enough for all the species.
2nd day of summing up (Wed) –EEG, the plaintiff’s case was presented.
Debbie Mortimer SC argued that:
- ‘The standards and conditions in the FFG Act Action Statements, Forest Management Plan and the Code of Forest Practices hasn’t been and can’t be complied with by VicForests.
- VicForests was the “agent of harm” about to begin clearfelling when we applied for the first injunction, and VF was as obliged to adhere to the law for threatened wildlife as was DSE.
- VF don’t need to have DSE declare a conservation zone for VF to adhere to the law or decide not to log.
- The Allocation Order (giving forests to VicForests from DSE), Timber Release Plan and the Code (for logging) all mention adhering to the Forest Management Plan.
- The issue of whether EEG has legal standing to bring the case to court was argued well for showing we did have standing. It had not been objected to by VF strongly before we embarked on the 17 day trial.
- If various surveys had not have been carried out (owls, Gliders, Crayfish and Potoroos), the court case would not have commenced. Surveys show a genuine interest.
- Obligation on VF are mandatory – they don’t allow them to ‘duck and weave’ around these obligations.
- The main law is the Flora and Fauna Guarantee Act – it deals directly with Threatened Species, and binds the state/crown to protect endangered wildlife. The FM Plan and the Code both refer to it.
- Forests are a community property. Managed for common good into future. DSE’s position in the evidence given by Lee Meizis was that the Timber Release Plan gave ownership of forests to VF to exploit, but with the right to exploit comes responsibilities for conservation.
- FFG Act has strong ‘must do’ language and is imposed on government authorities. Important objectives of FFGA disregarded by VF. Action Statements within the FFGA are enforceable.
- Debbie Mortimer said “In every way, VicForests pushed away from its conservation duties” to benefit its access to forests for logging.
- VF is not abiding by the law by merely reading the Action Statements.
- Logging high quality Quoll habitat is endangering the animal’s survival. At odds with the Precautionary Principle because this species is only found at a functional level in East Gippsland now.
- Sustainable Forests (Timber) Act directly forced VF to adhere to the Code. Allocation Order also states VF MUST comply with CFP, PP, AS and FMP.
- Not complying with the Code was a breach. Acts refer to the Code being adhered to.
- VF must consider advice from relevant experts in Flora and Fauna. The advice of these internal DSE experts were ‘completely sidelined’ during the process that lead to the decision to clearfell Brown Mountain. It was also claimed that the Minister was not given important information on these species.
- The 100 mt buffer offered by VF would not protect the Gliders, Quoll, owls, Potoroo and Large Brown Tree Frog and was unknown if it would adequately protect the Giant Burrowing Frog, Brown Mt Crayfish and Square-tailed Kite. Leaving additional large trees while logging and burning the remainder would be unlikely to protect the habitat values of hollow bearing trees (85 out of 207 was all that survived the logged and burnt coupe across the creek in April 2009).
- The guideline to protect 100 ha for rich populations of gliders is self-regulating and doesn’t need major fuss – just needs to be mapped and complied with.
- Justice Osborn discussed decent reserve designs and ‘whacking in’ some reserve along the creek.
- The oft-cited ‘risk-weighted consequences’ of the precautionary principle the VF lawyers used daily, does not mention social or economic ‘balance’ and in context is only about conservation risks and consequences.
- We are dealing with some species in a demonstrable state of decline. Failure to halt damage is serious. There is lack of scientific certainty as there is no research or info on impact of logging.
- New reserves mean nothing unless we assess the quality and type of the habitat, logging history etc.
- BHP was used as an example of a company which must employ specialist ecologists/biologists if it plans to carry out potentially damaging work. VF either needs to employ biodiversity staff, or get in consultants to survey and advise forest planning.
- Potoroo detections 100% authentic – no questioning by VF of witnesses – fully accepted, yet despite 3 verified detections, VF made no attempt to consult with DSE biologists or protect 50 ha for each as stated in the FFGA.
- DSE set up its own ‘rules’ outside of existing legislation.
- DM asked for full injunction to logging.
Day 3 – Thursday – response from Defendant (VF)
- ‘Having to abide by the SFT Act could mean that every logger, truckie, contractor, roading operator must comply with these laws as well. Does that mean every worker has to set up a biodiversity unit and consult biologists?
- Argues again, it’s all DSE’s responsibility.
- Argues that the words for Greater Glider protection in the FMP says “approximately 100 ha” is unenforceable – how much is ‘approximately’?
- VicForests Lawyers couldn’t find any expert biologists to speak for them. They tried.
- Not being given the entire potoroo footage was the whole problem.
- The 400 ha reserve to the (drier, steeper) west is a benefit for all the species.
- Crays were found in the creek next to a previously logged forest so therefore they can survive OK.
- Potoroo no 2 (on camera) wasn’t used in original evidence (it was actually discovered after writ was served but this was overlooked by VF lawyers).
- The hair tube evidence of the Potoroo near proposed coupe 19 didn’t come with a copy of the note when it was sent off for analysis – so how do we know where it really was?
This ended the long trial for the wildlife of Brown Mountain. We await Justice Osborn’s final decision …”
Court Case:
‘Environment East Gippsland Inc v VicForests [2010] VSC 53 (25 February 2010)’
(Supreme Court of Victoria)
SOURCE: http://www.austlii.edu.au/au/cases/vic/VSC/2010/53.html
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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DATE OF RULING:
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CASE MAY BE CITED AS:
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Revised 4 March 2010
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1 ‘The background to this proceeding is stated in the decision of his Honour Justice J Forrest made last year, and granting injunctive relief to the plaintiff. The injunction restrains logging and associated works within coupes located at Brown Mountain in East Gippsland. The underlying basis on which the plaintiff seeks relief in the proceeding, and upon which it sought and obtained injunctions is that the coupes in issue have such conservation significance that logging of them would be unlawful, having regard to applicable legislative and governmental controls which seek to protect such significance.
2 The plaintiff by summons dated 23 February 2010 now seeks leave to amend its statement of claim in accordance with a form of amendment appended to the summons. That application is resisted by the defendant insofar as the amendments raise allegations of the presence of the three animal species within the relevant area, which have not previously formed the basis of the plaintiff’s claim. The matter is fixed for trial at Sale commencing on Monday next, and has been the subject of a framework of pre-trial directions intended to ensure that it would be ready to proceed at that date, and to ensure that the defendant was accorded procedural fairness. The defendant wishes the matter to proceed next Monday whether or not the amendments are permitted, because any delay will result in the continuation of the injunction which it submits is causing it continuing economic loss and prejudice. The plaintiff contends that the amendments can be made at this very late stage without the necessity of any adjournment of the trial, and that the trial can proceed with adequate procedural fairness from the defendant’s point of view. I accept the relevant principles relating to the application were restated by the High Court in the case of Aon Risk Services Australia Limited v ANU.
3 For present purposes it is sufficient to repeat what was said in the judgment of the plurality: An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend.
4 The underlying objective of the court must of course be to achieve a just resolution of the dispute between the parties. That notion in a case such as the present extends to the objective insofar as it is reasonably possible of ensuring that justice is seen to be done with respect to the real matters in dispute between the parties. In the present, case I accept that the amendments in issue arise out of circumstances to which the plaintiff was alerted by advice given to the plaintiff by a series of expert witnesses who have carried out ongoing site investigations for the purposes of preparing reports for the trial. If the amendments are refused, and this evidence is excluded, the evidence will not be the best evidence available as at the date of trial of the conservation significance of the land.
5 In my view, such a refusal would not only on the face of it prejudice the plaintiff’s case, but also necessarily detract from the credibility of the evidentiary basis on which the Court proceeds to determine the matter. And I am further of the view that this issue is of particular significance in the present case because it raises issues of the public interest both from the point of view of the position of the plaintiff and the defendant.
6 Accordingly the amendments should be allowed in the absence of prejudice to the defendant, which can be said to outweigh the prima facie desirability of the amendment. The notion of prejudice is to be approached broadly as the decision of Aon makes clear. In the present case, it is first submitted on behalf of the defendant that there has been delay on the part of the plaintiff which should preclude the granting of any indulgence to it. In particular, reference is made to the identification of a new species of crayfish in a report dated 7 December 2009 prepared by Dr McCormack.
7 The substance of this report was not the subject of advice to the defendant’s solicitor until 18 February this year. I accept the delay was regrettable and contrary to the intention and indeed the spirit of the directions made previously by the court in order to put the case in a proper position for trial. Nevertheless, the relevant expert retained by the defendant has now had the opportunity to consider and respond to the report in issue, and I am not persuaded that delay with respect to this aspect of the matter justifies refusal of the amendment.
8 Next it is submitted the defendant will suffer significant procedural prejudice if the amendments are allowed. It is not submitted that repleading the defence will occasion undue difficulty. And on the face of it, the probability is that the defence will be repleaded in parallel terms to the pleas which have previously been made in relation to other species which the plaintiff alleges are present in the relevant area.
9 The problem from the defendant’s point of view is in respect of obtaining expert advice responsive to the material now put forward in respect of the alleged presence of bird and frog species only recently identified as relevant on behalf of the plaintiff. This difficulty is exacerbated due to personal circumstances affecting the expert whom the defendant has retained in this matter, and proposes to call to give evidence.
10 Although the question is, I accept, finely balanced, I have come to the view that the procedural prejudice in issue can be significantly ameliorated and it may reasonably be hoped avoided, if an appropriate basket of directions is made by the Court. First, I would not fix a time for the filing and service of an amended defence, but simply direct that such an amended defence be filed and served as soon as is reasonably practicable.
11 Secondly, I would direct that save with the consent of the defendant, the plaintiff call all evidence other than that relating to the matters of fact alleged in the amendments prior to calling evidence concerning such matters. Thirdly, I would direct that Professor Ferguson be at liberty to respond to evidence relating to such matters by viva voce evidence with no written notice of the substance of such response. And fourthly, I would specifically direct that the defendant be at liberty to apply for further directions relating to the evidence concerning such matters.
12 It seems to me that if these directions are made, then having regard to the pleadings as a whole as they currently stand and the expert evidence foreshadowed in the documents that have been filed with the Court, a fair trial should be reasonably possible. I should further record that during the course of argument I indicated to counsel for the defendant that the court would adopt a flexible approach to the giving of Professor Ferguson’s evidence if that should become necessary.
13 In addition to the procedural concerns which the defendant has expressed, the defendant also submitted that it could not be satisfactorily compensated by an order for costs thrown away in respect of the consequences of any amendment. It was submitted that there was a real prospect that an order for costs would not be able to be met by the plaintiff, and reference was made to the debate in the practice court with respect to this aspect of the matter at the time of the hearing relating to injunctive relief.
14 I have come to the view that such prejudice will be minimised if I fix an amount in respect of such costs and order that it be paid within a relatively short time. The parties have now agreed that it would be appropriate to order that the plaintiff pay the defendant’s costs thrown away by reason of the amendment of the statement of claim, fixed in the amount of $12,000, and that that amount be paid by 5 March 2010.
15 Finally I should add for the sake of completeness that it was submitted on behalf of the defendant that certain amendments proposed with respect to the statement of claim by way of deletion of factual allegations do not go far enough. I am not persuaded that the pleading is on the face of it materially inadequate in relation to the matters raised, for the reasons I discussed with counsel during argument. It seems to me that the underlying issue is one which will have to be resolved at trial and in the light of the evidence as it emerges during the course of the hearing.
16 Accordingly, I propose to make orders generally in accordance with the oral reasons I have just given. First, that the plaintiff have leave to file and serve an amended statement of claim generally in accordance with the form appended to the summons dated 23 February 2010. I say generally because the proposed paragraph 80D needs to be denoted as such in the amended statement of claim.
17 Secondly, that the defendant file and serve an amended defence to the amended statement of claim as soon as is reasonably practicable. Thirdly, save with the consent of the defendant, the plaintiff call all evidence other than that relating to matters of fact alleged in the amendments permitted to the statement of claim prior to calling evidence concerning such matters. Fourthly, that Professor Ferguson be at liberty to respond to evidence relating to such matters by viva voce evidence with no written notice of the substance of such response to the plaintiff.18 Fifthly, the defendant be at liberty to apply for further directions with respect to evidence relating to such matters. Sixthly, that the plaintiff pay the defendant’s costs thrown away by reason of the amendments, including the costs of this application fixed at $12,000, on or before 5 March 2010.’
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