Court of Appeal Supreme Court New South Wales Medium Neutral Citation: South East Forest Rescue Incorporated v Forestry Corporation of New South Wales [2024] NSWCA 64 Hearing dates: 18 March 2024 Date of orders: 22 March 2024 Decision date: 22 March 2024 Before: Griffiths AJA Decision: (1) The motions filed on 22 February 2024 and 26 February 2024 are dismissed. (2) The costs of the motions are costs in the cause. Catchwords: INTERLOCUTORY APPLICATIONS – interim injunction – forestry operations – assumption that serious question to be tried – unexplained delay in seeking interlocutory relief – scope of relief sought too vague and uncertain – balance of convenience a neutral consideration Legislation Cited: Forestry Act 2012 (NSW) Pt 5B Cases Cited: Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633 Ellerman Lines Ltd v Read [1928] 2 KB 144 Environment East Gippsland Inc v VicForests (No 4) [2022] VSC 668 North East Forest Alliance Incorporation (INC 1601738) v Forestry Corporation of NSW [2023] NSWLEC 124 Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315 South East Forest Rescue Incorporated INC 98 94 030 v Forestry Corp [2024] NSWLEC 7 VicForests v Environment East Gippsland Inc [2023] VSCA 159 Texts Cited: Coastal Integrated Forestry Operations Approval (commenced 16 November 2018, amended 16 February 2024) I Spry, The Principles of Equitable Remedies (Lawbook Co, 8th ed, 2010) Category: Procedural rulings Parties: South East Forest Rescue Incorporated INC 98 94 030 (Applicant) Forestry Corporation of New South Wales ABN 43 141 857 613 (Respondent) Representation: Counsel: J Korman/L Sims S Hall SC/K Pham Solicitors: XD Law (Applicant) Norton Rose Fulbright (Respondent) File Number(s): 2024/69016; 2024/74092 Publication restriction: Nil. Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2024] NSWLEC 7 Date of Decision: 07 February 2024 Before: Pritchard J File Number(s): 2024/17196 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT Introduction 1. HIS HONOUR: By way of two notices of motion, the applicant seeks interlocutory orders in the context of two proceedings which it commenced in this Court on 22 and 26 February 2024 respectively. The first motion relates to proceedings in which the applicants seek leave to appeal from orders made by the Land and Environment Court (LEC) on 7 February 2024 (see the reasons for judgment of Pritchard J in South East Forest Rescue Incorporated INC 98 94 030 v Forestry Corp [2024] NSWLEC 7 (primary judgment or PJ)). 2. The second motion relates to appeal proceedings from orders made by the LEC on 8 February 2024 in which Pritchard J dismissed the primary proceedings brought by the applicant. 3. In brief, her Honour found that the applicant lacked standing in both the proceedings brought below in which the applicant sought (inter alia) to restrain the respondent from conducting any forestry operations in various specified compartments in several identified State forests unless certain steps were taken to prevent or minimise the effects of such logging on various gliders, being the Southern Greater Glider, the Yellow-bellied Glider and the Squirrel Glider. 4. The applicant also seeks an expedited hearing of the two proceedings in this Court and an order that they be heard concurrently. At the commencement of the hearing before me on 18 March 2024, and after hearing briefly from both parties, I indicated that the proceedings would be expedited and would be heard concurrently on 16 April 2024. 5. In circumstances where the respondent was unwilling to provide an undertaking to the applicant that it would suspend logging operations pending the hearing on 16 April 2024, the applicant said that it wished to press both motions in this Court. As events developed, however, the applicant (who was represented by Mr Korman and Ms Sims of counsel) relied only on its application for interlocutory injunctive relief in the context of the appeal. Counsel said that there was no need for the Court separately to address the interlocutory injunction application in the context of the leave to appeal proceeding, presumably because its outcome would be the same as for the other application. 6. To put the matter into context, and before summarising the proceedings below, it is desirable to outline the relevant legislative framework (noting that the time constraints have affected the detail of these reasons). Legislative framework summarised 1. Part 5B of the Forestry Act 2012 (NSW) (Forestry Act) relates to the making, application and enforcement of approvals in relation to forestry operations in State forests or other Crown-timber lands (see s 69K of the Forestry Act). 2. Approvals to carry out forestry operations are granted by the specified ministers under s 69N of the Forestry Act. Sub-section 69M(2) states that carrying out forestry operations to which an approval applies "is subject to the terms of the approval", being the terms of a relevant Integrated Forestry Operation Approval. 3. Under s 69P of the Forestry Act, an approval is to make provision for the carrying out of forestry operations covered by the approval; is to set out conditions subject to which the operations are to be carried out; and may apply or adopt protocols, codes, standards or other instruments that are publicly available and are in force from time to time. 4. The Coastal Integrated Forestry Operations Approval (CIFOA) (which applies to the forestry operations the subject of these proceedings) sets out conditions and also adopts Protocols under s 69P(3) which have been made by the Environment Protection Authority (EPA). Several conditions of the CIFOA relate to the protection of flora and fauna. Condition 56 concerns targeted flora surveys and targeted fauna surveys and describes the requirements for the carrying out of such surveys. 5. Condition 57 is directed to broad area habitat searches. Condition 57.1 requires that a forestry operation must not be conducted in any part of an operational area unless a broad habitat search has been undertaken in accordance with condition 57. Condition 57.2 requires the search to be carried out by a suitably qualified person; in and within 100 metres of the base net area of the operational area; to look for, identify and record the habitat features and species listed in Table 2 (which includes the three subject species); and to be conducted in accordance with Protocol 20. 6. Table 2 in Condition 57.3 requires searches be undertaken for "nest, roost or den trees" (as listed in Table 4, Ch 4 of the CIFOA). 7. "Nest, roost or den trees" is defined in Protocol 39, which relevantly states: (emphasis in original): A feature that includes at least one of the following: … 3 A den (specifically in relation to [the three subject glider species]) that includes, but is not limited to, a tree-hollow or other hole, crevice or fissure in a tree, which the subject species is seen entering or leaving. The dens may be used by the animal for roosting, sleeping, resting, breeding, raising young and communal congregations sheltering and/or the rearing of young; … 1. Division 3 of Ch 4 of the CIFOA is titled 'Retained trees'. Conditions 63 and 64 specifically address 'tree retention clumps' and 'retained trees' and require the retention of a certain amount of tree retention clumps, and certain types of trees. These conditions are to be complied with in accordance with Protocols 22 and 23 respectively. 2. Division 4 of Ch 4 is directed to mitigating the impact of forestry operations on fauna species and their habitat and to support their persistence. Condition 76 requires an exclusion zone around each nest, roost or den as specified in Table 4. Table 4 then sets out the extent of the exclusion zone for the fauna identified. Relevantly, it requires a 50 metre radius exclusion zone around den trees associated with the three subject species. Site specific biodiversity conditions 1. Conditions 21.5 and Protocol 31.3 provide for the EPA to make 'site-specific biodiversity conditions' (SSBCs). 2. On 31 January 2024, the EPA amended Protocol 31 of the CIFOA (which makes provision for flora species and endangered populations protected by the application of species-specific conditions), so as to add the Greater Glider. 3. On 16 February 2024, the EPA issued SSBCs for the Greater Glider in the CIFOA region (the new SSBCs). Additional requirements were imposed in relation to glider habitat retention and the way in which broad area habitat searches are to be carried out. More glider trees are required to be permanently retained (Conditions 6 and 7). Condition 14 now requires each search and survery to be carried out in accordance with quite detailed provisions relating to such matters as the timing and circumstances in which the surveys are to be conducted. 4. It is noted, however, that under transitional provisions the respondent is not obliged to comply with the new SSBCs in respect of compartments where forestry operations were commenced prior to 16 February 2024 and where it has conducted a broad area habitat search as required by Condition 57.2. The proceedings below summarised (a) Procedural history 1. The procedural history is both complex and chequered. 2. The proceedings below were commenced on 15 January 2024 when the applicant brought civil enforcement proceedings in the LEC's Class 4 jurisdiction. The proceedings sought to restrain the respondent from conducting any forestry operation unless broad area habitat searches required by Condition 57 of the CIFOA were carried out in a manner sought by the applicant. In particular, the applicant sought to compel the respondent to carry out broad area habitat searches that would identify all hollow-bearing trees, then conduct an examination of sufficient hollows in each identified hollow-bearing tree to determine if they were being used by the three glider species. 3. On 19 January 2024, the applicant proposed various amendments to the first motion, which involved deleting some compartments which the applicant understood had already been logged and adding other compartments that were imminently or actually being logged and where two of the three glider species had recently been detected (proposed amended first motion). 4. At the hearing of the first motion on 23 January 2024, the primary judge granted limited leave to amend the first motion so as only to remove some of the compartments identified in the proposed amended first motion (amended first motion). Leave to add any additional compartments was refused. The respondent gave an inter partes undertaking that it would suspend forestry operations in the majority of the compartments identified in the first motion until 23 January 2024, which undertaking was then later extended to the date of delivery of judgment on the first motion. 5. On 29 January 2024, the applicant sought to file a second notice of motion in the LEC seeking urgent interlocutory relief in respect of the compartments that it had sought unsuccessfully to include in the proposed amended first motion, as well as a further compartment in which gliders had been detected on 24 January 2024. When the matter was mentioned before the primary judge on 2 February 2024, the applicant applied for interim relief in respect of selected compartments so as to preserve the status quo pending the hearing of the second motion. That application for interim relief was refused by the primary judge. Her Honour listed the amended first motion for judgment on 7 February 2024 and listed the second motion for hearing on 8 February 2024. 6. As noted above, comprehensive reasons for judgment dismissing the amended first motion were published on 7 February 2024. 7. The hearing of the second motion took place on 8 February 2024. Having regard to the primary judgment published the previous day, the respondent urged the Court to dismiss both the second motion as well as the substantive primary proceedings. The applicant did not consent to the respondent's proposals but did not seek to be heard further on either the second motion or the proposed dismissal of the primary proceedings. It asked the Court to determine both those matters. 8. Later that day, the primary judge made orders dismissing the second motion, dismissing the primary proceeding, reserving costs, and timetabling further argument on costs. (b) Primary judgment summarised 1. In her reasons for judgment published on 7 February 2024, the primary judge made the following relevant findings: 1. The question of the applicant's standing to bring civil enforcement proceedings should be heard at the outset. 2. The applicant had failed to establish on a prima facie basis that it had the requisite special interest in the subject matter of the proceeding. 3. If the adverse ruling on standing was wrong, the applicant had failed to establish a serious or arguable case that the respondent had failed to comply with the CIFOA. 1. The applicant also contends before this Court that the primary judge erroneously found that she had a discretion finally to determine the question of standing on the Court's own motion and in the context of an application for interlocutory relief, which discretion was subsequently exercised so as to dismiss the primary proceeding. 2. In this Court, the applicant described how the parties below advanced different constructions of the expression "den trees". On the one hand, the applicant submitted that the expression "den" as defined in Protocol 39 of the CIFOA "does not prescribe any indicators which confirm the presence of a den, but merely provides an example of one such indicator: a Glider observed entering or leaving a tree-hollow". On the other hand, the respondent submitted that, "[c]ontrary to the Applicant's approach to the definition, the requirement that the subject species be seen entering or leaving the physical feature of the tree is an essential element of the definition". The primary judge considered the gravamen of the applicant's complaint was with the definition itself, and did not speak to the lawfulness of the respondent's compliance with a requirement of the CIFOA. Consideration and disposition 1. For the following reasons, I consider that this is not an appropriate case in which to grant interlocutory injunctive relief of the kind sought by the applicant. That relief relates to various compartments in five forestry operations in coastal regions of NSW. The relevant areas are narrower than those which were the subject of the proceedings below. (a) Serious question to be tried 1. First, I understood the applicant's position to be that there is a serious question to be tried as to whether the primary judge erred in her application of the relevant principles concerning common law standing to the particular circumstances of this case. In particular, it claims that her Honour either overlooked or gave insufficient weight to various matters which demonstrated that it did have a special or sufficient interest which distinguished it from other members of the public. For the purposes of this application I do not consider that it is necessary for me to determine the matter. That is because I am prepared to assume in the applicant's favour that there is a serious question to be tried as claimed by it. (b) Delay in bringing the application 1. Secondly, there are, however, sound reasons why interlocutory injunctive relief should not be granted. The primary reason is that I consider that the applicant's unexplained delay in commencing the proceedings in the LEC is a sufficient basis for refusing such relief. As the Full Court of the Federal Court observed in Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633 at 638: The grant of injunctive relief, interim or final, is, of course, discretionary. Delay by an applicant in instituting or in prosecuting a claim for an injunction may be a ground for refusing relief, even at a final hearing. Where an interim injunction is sought on the basis that the applicant need show only a "serious" question of fact or of law, delay in seeking that relief is an important discretionary consideration… 1. The issue of delay was raised by the respondent in its written submissions filed on 11 March 2204 and was also raised by the Court during the course of the hearing on 18 March 2024. 2. The primary judge referred to the applicant's delay in seeking interlocutory relief below at PJ[167]. Her Honour referred to the fact that a number of forestry operations were already underway and completed (going back to mid-2022) as claimed by the respondent. Her Honour then added that she attached greater weight, for the purpose of the interlocutory application, to the expert report by Associate Professor Wardell-Johnson concerning irreparable harm. 3. A distinction is to be drawn between the applicant's delay in bringing the proceedings below and the expedition with which it brought the appeal proceedings. Although the respondent suggested that there was prejudicial delay by the applicant in not filing the proceedings in this Court until 22 February 2024, I accept the applicant's explanation from the Bar table that it attempted to file the summons and notice of appeal and other documents on 12 February 2024, but encountered practical difficulties in doing so in the Registry relating to the applicant seeking to postpone the filing fees for their applications. I do not consider the subsequent ten day delay in overcoming those difficulties as being detrimental to the applicant's interlocutory relief application. 4. With respect, however, I take a different view to the primary judge regarding the applicant's delay in bringing the proceedings below. The applicant did not contend before me that any such delay was irrelevant to the exercise of my discretion. 5. The material before me suggests that the applicant was aware, during the four year period before the commencement of the LEC proceedings, of sightings of Southern Greater Gliders and Yellow-bellied Gliders in many of the compartments the subject of the proceedings. 6. In support of the motions before me, the applicant read, inter alia, three affidavits of its instructing solicitor Ms Natalija Nikolic filed on 22 February 2024, 26 February 2024 and 13 March 2024. 7. Ms Nikolic's affidavit filed on 22 February 2024 referred to an earlier affidavit by her dated 15 January 2024, which was read in support of the first motion in the LEC. A copy of the 15 January 2024 affidavit was included in the White Folder filed in this Court, but the detailed exhibit to that affidavit (which exhibit evidently is voluminous) was not placed before the Court. 8. This particular affidavit was also relied upon by the applicant in its written submissions below in support of the first motion. A copy of those submissions is included in the White Folder. The affidavit was cited in support of the applicant's claim that 69 Southern Greater Gliders and Yellow-Bellied Gliders had been detected since 1 January 2020 in or near 11 compartments identified by the respondent as "active". The submissions also claimed that only one den tree had been retained in the vicinity of the 69 gliders. Table 1 to the submissions summarised the evidence relating to the sightings. It included data relating to four of the five areas the subject of the interim injunctive relief now sought by the applicant. The data included that two gliders had been sighted in compartment 36 of Cloud's Creek; one glider had been sighted in compartment 456 of Currowan; four gliders had been sighted in compartment 232 of Timbillica and 12 gliders sighted in compartment 41 of Styx River. The Table does not identify the precise date in the period from 1 January 2020 when the gliders were sighted. It also is unclear whether those precise dates are included in the exhibit (which was not tendered). The submissions simply state at [37] that the sightings occurred in the period since 1 January 2020. 9. Given the time frame to which these sightings relate, i.e., a period of four years prior to the commencement of the LEC proceedings, it is evident that the applicant was aware for some time of the presence of gliders in many of the compartments which are the subject of its interlocutory application in this Court. Yet no satisfactory evidence or explanation has been provided as to why proceedings were not commenced in the LEC until 15 January 2024. 10. This unexplained delay is highlighted further by evidence adduced by the respondent before me concerning public access to information regarding the respondent's proposed forestry operations in the compartments which are relevant to the present proceedings. By an affidavit dated 11 March 2024, Ms Anneliese Catrina Korber Moriarty (who is the respondent's instructing solicitor) gave unchallenged evidence relating to the timing of the announcement of the respondent's proposed forestry operations via its Plan Portal, as well as providing updated information concerning the status of forestry operations which are the subject of the present proceedings. Based on this evidence, I make the following findings. 11. The respondent maintains a Plan Portal, which is an online database hosted by it and is used by its personnel as part of the planning and carrying out of forestry operations. Certain information can be "tagged" by the respondent and made accessible to registered members of the public, as well as to contractors and other interested persons, including the EPA. Other untagged information is only available to the respondent's internal users. 12. Persons who are registered users of the Plan Portal can search the website to access records which are tagged for the public, including forestry operation records. From the information made available to the Court, any member of the public can become a registered user. This registration gives access to operational plans providing information on harvesting, road works and other information about forestry operations. Operational plans are generally changed to "active" on the Plan Portal shortly before harvesting is anticipated to commence. 13. Once a particular operational plan has been tagged and made available for searching by the public, the status of that operational plan is available to the public by accessing the Plan Portal with their registration details. It is evident from [31] of Ms Nikolic's affidavit dated 15 January 2024 that the applicant had access to the Plan Portal. 14. The Plan Portal data log for each of the five relevant forestry operations reveals the following information. 15. As to the Plan Portal data log for Clouds Creek: 1. the "plan status" for this operation was first changed to active on 18 December 2023; and 2. the harvesting plan was added and made available to the public on 7 December 2023. 1. As to the Plan Portal data log for the Riamukka operation: 1. the "plan status" for this operation was first changed to active on 26 April 2023. It was then suspended on 1 June 2023 but changed to active again on 22 November 2023; and 2. a harvesting plan and the relevant operational plan was added to the Plan Portal on 24 March 2023 and made available to the public on 24 June 2023. 1. As to the Plan Portal data log for Styx River: 1. the "plan status" was first changed to active on 7 March 2023; and 2. the harvesting and road plan was added and made available to the public on 14 February 2023. 1. As to the Plan Portal data log for Timbillica: 1. the "plan status" for this operation was first changed to active on 28 August 2023, was suspended on 21 September 2023, then became active again on 5 October 2023; and 2. the harvesting and road plan was uploaded and made public on 11 July 2023. 1. As to the Plan Portal data log for Currowan: 1. the "plan status" was first changed to active on 18 October 2023; and 2. the first version of a harvesting and road plan was uploaded and made public on 16 October 2023, which was then removed and replaced with a second version made public on 18 December 2023. 1. It is reasonable to infer from this information that the applicant either knew, or at least had a reasonable opportunity to know, about the respondent's plans for its operations in relation to these five areas. The applicant did not commence the proceedings below until 15 January 2024 notwithstanding that, for example, it either knew or could reasonably have known about the details of the harvesting plan for Styx River on 14 February 2023, which is approximately 11 months before the LEC proceedings were commenced. 2. The applicant's delay in bringing the LEC proceedings is unexplained by any affidavit evidence. From the Bar table, Mr Korman of counsel said that Pritchard J's decision on standing in North East Forest Alliance Incorporation (INC 1601738) v Forestry Corporation of NSW [2023] NSWLEC 124 (NEFAI) (which her Honour referred to in PJ[108]), was regarded by the applicant as creating "legal precedence". Mr Korman stated that, prior to this decision (which was also in the LEC's Class 4 jurisdiction), the prevailing view of those who instruct him was that it lacked standing. 3. As I have observed, the applicant adduced no evidence to support that submission. Moreover, NEFAI was published on 20 November 2023. The delay of almost two months between that date and the commencement of the LEC proceedings below in this matter remains unexplained. 4. Even more significantly, however, I also have difficulty in understanding the proposition that her Honour's decision in NEFAI created a legal precedent. I would describe Pritchard J's identification and application of common law standing principles in that earlier decision as to what constitutes a "special interest" as entirely orthodox and uncontroversial. 5. I accept that on or about 1 December 2023 the applicant asked Associate Professor Wardell-Johnson to provide an expert report on the topic of 'Survey Methodology for Den Trees of Gliders NSW' and that the report itself is dated 4 January 2024, which is only shortly before the LEC proceedings were commenced. But no explanation has been provided as to why the applicant did not seek appropriate expert evidence well before then, having regard to the matters I have emphasised above and below. 6. Ms Moriarty also gave evidence regarding the current status of operations in the compartments the subject of the applicant's interlocutory relief applications. This information, which puts the applicant's delay into context by reference to the status of the respondent's operations in the subject areas, may be summarised as follows: 1. Clouds Creek, Compartments 48, 49, 50, 51, 52, 53, 54 and 55: harvesting was originally scheduled to commence on 22 January 2024. However as a result of the applicant's proposal to amend the first motion in the LEC to include these compartments, the proposed start date was delayed until after the hearing of the first motion on 23 January 2024. The commencement date for this operation is not yet scheduled. 2. Riamukka, Compartments 48, 49, 50: harvesting commenced on around 5 April 2023. Exhibited to Ms Moriarty's affidavit was a OneNote extract used by the respondent's internal personnel for the Riamukka operation, noting the commencement of harvesting operations. As at 11 March 2024, it was expected that there were approximately two and a half months left for this operation. 3. Styx River, Compartments 33, 36, 38, 41 and 42: harvesting commenced on 15 June 2023. As at 11 March 2024, there were approximately 11 weeks left on this operation under dry weather conditions. Harvesting is complete in compartments 32 and 33. 4. Timbillica State Forest, Compartment 232 and 233: harvesting is complete in compartment 238 and is ongoing in compartments 232 and 233. Harvesting commenced on 29 August 2023 and will be active over the course of the next three months. 5. Currowan State Forest, Compartment 216A: harvesting commenced on 19 October 2023. As at 11 March 2024, it was anticipated that there were approximately two weeks left. 1. For all these reasons, I consider that the applicant's delay in bringing proceedings in the LEC, which has not been adequately explained, provides a sufficient reason for refusing interim relief. It may well be, of course, that the applicant will seek to adduce appropriate evidence which addresses these concerns at the final hearing. (c) Scope of relief sought 1. There is a second reason why interlocutory injunctive relief is inappropriate in this case. It relates to the scope of the interlocutory relief sought by the applicant. The applicant seeks to restrain the respondent's operations unless, inter alia, a survery is conducted that (emphasis in original): i. is likely to identify all trees within the area in which the relevant broad area habitat search must be conducted pursuant to CIFOA Protocol 20.2(1)(a)-(c) and Protocol 20.2 (search area) that have tree-hollows or other holes, crevices or fissures (hollows); and ii. involves examination of sufficient hollows in each identified tree to determine whether at least one hollow is or has been used by [the three subject species] for roosting, sleeping, resting, breeding, raising of young and communal congregations, shelter, and/or rearing of young… 1. Alternatively, the applicant seeks orders restraining the various forestry operations "unless a survey has been conducted that is likely to detect any trees located in the search area" (emphasis added) that are or have been used by the three subject species for roosting etc.. 2. The terms "likely to" or "sufficient" are too vague and uncertain for the purposes of an injunction in these circumstances. Whether a survey is likely to identify hollow-bearing trees or sufficient hollows are examined both involve questions of fact and degree on which reasonable minds may differ. Such uncertainty is unacceptable in the context of the terms of an injunction, bearing in mind that a breach could give rise to contempt proceedings. 3. The Court was informed that the applicant's proposed terms of the injunctive relief was based on Victorian case law, including the terms of an injunction granted by Richards J in Environment East Gippsland Inc v VicForests (No 4) [2022] VSC 668, which stated (emphasis added): 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 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, locate 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. The terms of this injunctive relief were confirmed on appeal by the Victorian Court of Appeal in VicForests v Environment East Gippsland Inc [2023] VSCA 159. 2. The circumstances surrounding the VicForests litigation are somewhat different to those here. They naturally involved the regulatory framework for forestry operations in Victoria, which are not the same as those applying in NSW. In particular, it appears that the Victorian regulatory framework did not include requirements of the kind contained in Conditions 57 and 76 of the CIFOA. 3. It appears that different management actions were prescribed for different Forestry Management Areas (FMAs) in Victoria. Thus, the following parts of Table 13 (which forms part of the applicable Standards) relevantly applied to protect the Greater Glider and Yellow-Bellied Glider in the East Gippsland FMA, but not in the Central Highlands FMA (see VicForests at [41]): 1. It is also evident that the surveys conducted by VicForests prior to logging were different from the broad habitat survey searches required of the respondent here. This is evident from VicForests at [47] (footnote omitted): The judge described the measures undertaken by VicForests in relation to the conservation of greater gliders. These measures included pre-harvest spotlight surveys conducted by the DELWP, in addition to spotlight surveys carried out by its own staff and contractors. Her Honour recorded that it was not the practice of either the DELWP or VicForests to survey an entire coupe; instead, transects approximately one kilometre in length are surveyed within a coupe and, where possible, VicForests conducts the surveys along an existing road or track. VicForests retains habitat trees, as required by cl 4.1.1.1 and Table 12 of the Standards, giving priority to hollow-bearing trees and to trees most likely to develop hollows in the short-term, and uses 'variable retention harvesting' as its preferred method of timber harvesting. In both East Gippsland the Central Highlands, VicForests retains 40 per cent of the basal area of eucalypts across each harvested coupe in which three or more greater gliders are detected per spotlight kilometre. 1. Moreover, it appears that VicForests did not specifically survey for Yellow-Bellied Gliders in the Central Highlands FMA at all (at [53]). 2. These matters appear to have informed the view expressed by the Courts in the VicForests litigation that the injunctive relief was not insufficiently certain. The Court of Appeal said that the injunction gave VicForests "appropriate latitude in the surveying method it uses, so long as it gives rise to a likelihood that any gliders in the coupe will be found". The Court emphasised at [259] that the requirement had to be understood in the context of the primary judge's findings about the inadequacy of VicForests' survey method (footnote omitted): 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. 1. Finally, it is notable that VicForests provided no assistance to the primary judge in finalising the terms of the injunctions. Rather it took an "all or nothing" position in relation to the injunctions sought against it and it said that "it would not engage in an 'auction' about the adequacy of its survey method…" (see VicForests at [262]). 2. In my view, to grant an injunction in the terms sought by the applicant would not accord with the Court's duty to formulate its orders "with the greatest precision" (Ellerman Lines Ltd v Read [1928] 2 KB 144 at 158 per Eve J; Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315 at 331). The terms of such orders must be in as clear and unambiguous language as the circumstances reasonably admit (see further I Spry, The Principles of Equitable Remedies (Lawbook Co, 8th ed, 2010) at 374-375). 3. The uncertainty created by the emphasised expressions in the applicant's alternative formulations of the interim relief sought is highlighted when those formulations are contrasted with the clear and prescriptive terms of some of the new SSBCs. I appreciate that they came into effect after the LEC proceedings were commenced, but the point I am making is that they demonstrate how regulatory constraints are capable of being expressed in clear and certain language. For convenience, I will now set out Conditions 12, 13, and 14 of the 16 February 2024 SSBCs (noting that the emphasis is in the original): Greater Glider and Glider (Petauroides volans) den trees search and survey requirements 12. A forestry operation (other than road maintenance) must not be conducted in any part of a compartment in the higher density Greater Glider zone or the lower density Greater Glider zone unless a search and survey for Greater Gliders and Glider (Petauroides volans) den trees has been completed in the compartment in accordance with conditions 13 to 16 of this site-specific biodiversity condition within a maximum of 6 months prior to that forestry operation commencing in that compartment. 13. A search and survey for Greater Gliders and Glider (Petauroides volans) den trees must: a. involve, for each 100 hectares of base net area of the operational area, at least three separate transects distributed across compartments totalling a minimum of one kilometre on a pro rata basis, with each transect being a minimum of 250 metres in length and at least 100 metres from another transect; b. be planned for the operational area, and a map of all transects included in the operational plan, prior to forestry operations commencing in any part of the operational area; and c. be conducted along each transect in accordance with condition 14 below, unless otherwise approved in writing by the EPA. Note: Transects must be planned and included in the operational plan prior to forestry operations commencing in any part of the operational area. Forestry operations may commence in a compartment once the search and survey for Greater Gliders and Glider (Petauroides volans) den trees have been completed in that compartment in accordance with this site-specific biodiversity condition. 14. Each search and survey for Greater Gliders and Glider (Petauroides volans) den trees along a transect must: a. be carried out in, and within 100 metres of, the base net area of the operational area; b. be carried out at night and commence no more than 1 hour after sunset local time; c. be carried out by at least two suitably qualified persons; d. be conducted on foot at a maximum speed of one kilometre per hour; e. be carried out along roads, tracks or trails where habitat suitable for Greater Gliders or Glider (Petauroides volans) den trees is known or likely to occur adjacent to roads, tracks or trails; f. be conducted using a spotlight with an intensity of at least 750 lumens and no more than 1,000 lumens; g. not be conducted in high wind or rain conditions; h. record and map the relevant information required by condition 20.5 of Protocol 20: Pre-operational surveys, including a tracklog of the search and survey mapped in accordance with condition 117 of the approval; and i. be repeated in accordance with condition 14(a) – (h) above at least once on a different night within three weeks of the previous survey 1. Owing to the short time frame in which this application must be determined, and the lack of clarity in the applicant's case as to what surveys would be "likely to" identify relevant den trees or what constitutes examination of "sufficient hollows in each identified tree", there is too great a risk, on the one hand, of the respondent being in contempt of any such orders and, on the other hand, the orders being insufficiently clear to the extent that they are incapable of actual enforcement. 2. As was pointed out during the course of the hearing, it is not the Court's task to redraft the terms of the relief sought by the applicant so as to overcome the uncertainty created by the applicant's drafting. (d) Balance of convenience 1. Finally, there is the issue of the balance of convenience. As noted above, the primary judge took the view that the evidence of irreparable harm (primarily sourced in the expert report of Associate Professor Wardell-Johnson), outweighed any delay. For the following reasons, I respectfully take a different view based on the material and submissions in this Court. 2. First, as was the case below, the respondent accepted that there was a "possibility" of irreparable harm concerning the den trees and subjective gliders (as noted by the primary judge at PJ[165]). The respondent did not take issue with the applicant's expert report for the purposes of either the motions below, or the motions before me. 3. Secondly, I do not consider, however, that the expert report justifies the applicant's claim that there is "irreparable damage to the environment definitely". Associate Professor Wardell-Johnson made clear in his expert report that the data and information before him regarding hollow-bearing trees was incomplete. He said at [127] of his report that, based on the data provided to him, it was "not yet possible…to say whether one or other of these hollow-bearing trees was or was not a glider den tree". He recommended that follow-up fieldwork be carried out to ascertain the nature of each of the hollows so as to be able to ascertain whether they are glider dens. He concluded at [130] that he could not "judge from the material presented whether all hollows were detected or whether effective surveys of those hollows that were detected could be reliably designated (or not) as den trees". Associate Professor Wardell-Johnson also said at [131] that he had not been provided with any evidence of follow-up surveys used to relate glider sightings with hollow-bearing trees. 4. Associate Professor Wardell-Johnson's conclusion at [133] that there had been non-compliance with the requirement in Condition 57.2(c) was based on an assumption by him that no attempt had been made by the respondent to detect glider dens or relate glider dens to hollow-bearing trees. 5. Thirdly, an assessment of the weight to be given to the issue of "irreparable harm" needs to take into account the fact that, despite the mitigation objectives underpinning the regulatory requirements, logging operations will inevitably cause some harm. In addition there is the unexplained delay of the applicant bringing the proceedings below. There is also the incontrovertible fact that, with the exception of the Clouds Creek area, forestry operations were commenced by the respondent many months ago and, in some cases, are nearing completion. 6. The respondent did not provide any evidence to demonstrate the nature and extent of any prejudice to it if logging operations were suspended in the relevant areas. I am not persuaded, however, that the balance of convenience weighs heavily in the applicant's favour. I consider this factor to be neutral. In any event, it is outweighed by the matters above relating to delay, the terms of the relief sought and the nature and extent of the irreparable harm. Conclusion 1. For these reasons, both motions will be dismissed. The costs of the motions should be costs in the cause. ********** Amendments 22 March 2024 - Corrected name of text source DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2024