Hastings v Brennan; Tantram v Courtney
(No 2) [2005] VSC 37 (21 February 2005)
Certificate of Ruling by His Honour
during the case that the Code of Forest Practices for Timber Production Revision No.2, November 1996 forms part of the law -
changing the law as previously interpreted in Victoria
during the case that the Code of Forest Practices for Timber Production Revision No.2, November 1996 forms part of the law -
changing the law as previously interpreted in Victoria
Hastings v Brennan; Tantram v Courtney (No 2) [2005] VSC 37 (21 February 2005)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2005/37.html?context=1;query=hastings%20tantram;mask_path=au/cases/vic/VSC
IN THE SUPREME COURT OF VICTORIA [Not Restricted]
AT MELBOURNE
COMMON LAW DIVISION
No. 4508 of 2003
ANTHONY RICHARD HASTINGS
Plaintiff
v
NIGEL BRENNAN and COUNTY COURT OF VICTORIA
Defendants
No. 4630 of 2005
GREGORY TANTRAM
Plaintiff
v
PETER COURTNEY and COUNTY COURT OF VICTORIADefendants
---
JUDGE:HARPER J
WHERE HELD:MELBOURNE
DATE OF HEARING:21 FEBRUARY 2005
DATE OF RULING:21 FEBRUARY 2005
CASE MAY BE CITED AS:HASTINGS v BRENNAN & ANOR; TANTRAM V COURTNEY & ANOR (Ruling No.2)
MEDIUM NEUTRAL CITATION:[2005] VSC 371st Revision 7/3/05
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RULING – Whether breach of the Code of Forest Practices for Timber Production Revision No.2, November 1996 is a breach of the law – Whether the Code of Practice merely provides guidelines or forms part of the law.
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APPEARANCES: Counsel Solicitors
Mr Hastings in person
For Mr Tantram - Counsel Mr T. Poulton - Solicitors Mahons with Yuncken & Yuncken
For the First Defendant
Ms K. Judd
Victorian Government Solicitor
HIS HONOUR:
1. It does seem to me at the moment that, to an extent at least, that which governs the lawfulness of forest operations includes: the terms of the licence issued to the individual logger; the Code of Practice; and those plans which are formulated pursuant to or at least in purported compliance with the Code. Of course there will be areas where the discretion of individual officers of the relevant department will require to be exercised; and provided the discretion is exercised with a bona fide view to compliance with the relevant provisions of the relevant plans and the Code it will not be open to individuals to query the exercise of the discretion. But if the relevant officers fail to have proper regard to management plans and the Code when preparing individual licences or the boundaries of coupes it is at least (it seems to me) arguable that forest operations carried out in purported reliance upon permission thus granted will not be lawful, certainly not necessarily lawful. If that is the case then it is arguable that persons who hinder those operations are hindering forest operations which are unlawful and therefore do not fall within s.95A of the Conservation, Forests and Lands Act.
2. If that is so a person charged with an offence under that section ought not be convicted.
3. Getting down to the circumstances of this particular case, his Honour in his reasons for judgment referred to the prosecutor's response to the submissions put forward on behalf of the present plaintiffs. He designated one paragraph of that response as “J” when I think he meant “L”, (in fact it is certain he did mean “L”) and under the wrongly designated paragraph “J” he has recorded this as part of the submissions put forward on behalf of the prosecutor: "It is not accepted that a 'breach' of the Code, assuming the Code can 'breached', is the equivalent of the breach of statute and it is not accepted that the appellants have established that there has been a breach of the Code in this instance." His Honour then went on to say that he did not accept the proposition put by counsel for the present plaintiffs in paragraph “L” of that counsel's submissions. That paragraph read as follows: "Any breach of the Code is the equivalent of a breach of statute."
4. It seems to me, as at present I understand the position, that his Honour was wrong to reject that proposition, at least to the extent that his Honour rejected the proposition that a breach of the Code would not amount to a breach of the law. Subject to anything which Ms Judd may say, it seems to me that a breach of the Code is prima facie a breach of the law.
5. If there were evidence of a breach of the Code it would be for the prosecution to establish that in the particular circumstances of the case there had not been a breach of the law.
6. If the prosecution failed to demonstrate that the behaviour in question did not amount to a breach of the law, then it would follow that the prosecution had failed to establish that the forest operations in question were lawful. A failure of that kind would be a failure to prove an essential element of the charge; and in those circumstances the charge should be dismissed.
7. His Honour also said that it, that is the Code: "Provides guidelines upon which departmental officers should rely in establishing coupes." Again this matter has been raised in argument with counsel and with the plaintiffs, but unless Ms Judd can persuade me to the contrary, it seems to me that his Honour was incorrect in describing the Code as something which merely provides guidelines. In fact I think in conformity with what I said on Friday I would have to hold that the Code does much more than provide guidelines. It is part of the law.
8. I do not suggest that it is part of the law in a same way as a statute is a part of the law. It is not drawn as a statute and is not, I would suggest, to be construed as if it were a statute. It has a special place in the law. It is nevertheless, as I say, part of the law. There will be occasions when it is possible to identify a clear breach of the Code. Where it is so possible, a breach of the Code would amount to a breach of the law.
CERTIFICATE
I certify that this and the 2 preceding pages are a true copy of the reasons for ruling of Harper J of the Supreme Court of Victoria delivered on 21 February 2005.
DATED this 25th day of February 2005.
Samantha J Loo
Associate
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2005/37.html?context=1;query=hastings%20tantram;mask_path=au/cases/vic/VSC
IN THE SUPREME COURT OF VICTORIA [Not Restricted]
AT MELBOURNE
COMMON LAW DIVISION
No. 4508 of 2003
ANTHONY RICHARD HASTINGS
Plaintiff
v
NIGEL BRENNAN and COUNTY COURT OF VICTORIA
Defendants
No. 4630 of 2005
GREGORY TANTRAM
Plaintiff
v
PETER COURTNEY and COUNTY COURT OF VICTORIADefendants
---
JUDGE:HARPER J
WHERE HELD:MELBOURNE
DATE OF HEARING:21 FEBRUARY 2005
DATE OF RULING:21 FEBRUARY 2005
CASE MAY BE CITED AS:HASTINGS v BRENNAN & ANOR; TANTRAM V COURTNEY & ANOR (Ruling No.2)
MEDIUM NEUTRAL CITATION:[2005] VSC 371st Revision 7/3/05
---
RULING – Whether breach of the Code of Forest Practices for Timber Production Revision No.2, November 1996 is a breach of the law – Whether the Code of Practice merely provides guidelines or forms part of the law.
---
APPEARANCES: Counsel Solicitors
Mr Hastings in person
For Mr Tantram - Counsel Mr T. Poulton - Solicitors Mahons with Yuncken & Yuncken
For the First Defendant
Ms K. Judd
Victorian Government Solicitor
HIS HONOUR:
1. It does seem to me at the moment that, to an extent at least, that which governs the lawfulness of forest operations includes: the terms of the licence issued to the individual logger; the Code of Practice; and those plans which are formulated pursuant to or at least in purported compliance with the Code. Of course there will be areas where the discretion of individual officers of the relevant department will require to be exercised; and provided the discretion is exercised with a bona fide view to compliance with the relevant provisions of the relevant plans and the Code it will not be open to individuals to query the exercise of the discretion. But if the relevant officers fail to have proper regard to management plans and the Code when preparing individual licences or the boundaries of coupes it is at least (it seems to me) arguable that forest operations carried out in purported reliance upon permission thus granted will not be lawful, certainly not necessarily lawful. If that is the case then it is arguable that persons who hinder those operations are hindering forest operations which are unlawful and therefore do not fall within s.95A of the Conservation, Forests and Lands Act.
2. If that is so a person charged with an offence under that section ought not be convicted.
3. Getting down to the circumstances of this particular case, his Honour in his reasons for judgment referred to the prosecutor's response to the submissions put forward on behalf of the present plaintiffs. He designated one paragraph of that response as “J” when I think he meant “L”, (in fact it is certain he did mean “L”) and under the wrongly designated paragraph “J” he has recorded this as part of the submissions put forward on behalf of the prosecutor: "It is not accepted that a 'breach' of the Code, assuming the Code can 'breached', is the equivalent of the breach of statute and it is not accepted that the appellants have established that there has been a breach of the Code in this instance." His Honour then went on to say that he did not accept the proposition put by counsel for the present plaintiffs in paragraph “L” of that counsel's submissions. That paragraph read as follows: "Any breach of the Code is the equivalent of a breach of statute."
4. It seems to me, as at present I understand the position, that his Honour was wrong to reject that proposition, at least to the extent that his Honour rejected the proposition that a breach of the Code would not amount to a breach of the law. Subject to anything which Ms Judd may say, it seems to me that a breach of the Code is prima facie a breach of the law.
5. If there were evidence of a breach of the Code it would be for the prosecution to establish that in the particular circumstances of the case there had not been a breach of the law.
6. If the prosecution failed to demonstrate that the behaviour in question did not amount to a breach of the law, then it would follow that the prosecution had failed to establish that the forest operations in question were lawful. A failure of that kind would be a failure to prove an essential element of the charge; and in those circumstances the charge should be dismissed.
7. His Honour also said that it, that is the Code: "Provides guidelines upon which departmental officers should rely in establishing coupes." Again this matter has been raised in argument with counsel and with the plaintiffs, but unless Ms Judd can persuade me to the contrary, it seems to me that his Honour was incorrect in describing the Code as something which merely provides guidelines. In fact I think in conformity with what I said on Friday I would have to hold that the Code does much more than provide guidelines. It is part of the law.
8. I do not suggest that it is part of the law in a same way as a statute is a part of the law. It is not drawn as a statute and is not, I would suggest, to be construed as if it were a statute. It has a special place in the law. It is nevertheless, as I say, part of the law. There will be occasions when it is possible to identify a clear breach of the Code. Where it is so possible, a breach of the Code would amount to a breach of the law.
CERTIFICATE
I certify that this and the 2 preceding pages are a true copy of the reasons for ruling of Harper J of the Supreme Court of Victoria delivered on 21 February 2005.
DATED this 25th day of February 2005.
Samantha J Loo
Associate
Hastings v Brennan; Tantram v Courtney (No. 3) [2005] VSC 228 (28 June 2005)
Judgement in favour of Hastings & Tantram - charges quashed
_______________________________________________________________________________________________________________________________
JUDGE:
HARPER J
WHERE HELD:
MELBOURNE
DATE OF HEARING:
18 & 21 FEBRUARY 2005
DATE OF JUDGMENT:
28 JUNE 2005
CASE MAY BE CITED AS:
HASTINGS v BRENNAN & ANOR; TANTRAM v COURTNEY & ANOR (No. 3)
MEDIUM NEUTRAL CITATION:
[2005] VSC 228
JUDICIAL REVIEW - Applications for relief in the nature of certiorari – Obstruction of forestry operations – Whether forestry operations were lawful – Onus on prosecution to establish the lawfulness of the forestry operations – Whether boundaries of coupe were improperly defined – Whether compliance with Code of Forest Practices for Timber Production, Revision No.2 November 1996 - Failure to consider whether rainforest had been logged – Failure to consider whether operator had complied with the terms and conditions of its licence – Conservation, Forests and Lands Act 1987, s.95A – Applications granted.
APPEARANCES:
Counsel
Solicitors
Mr Hastings in person
For Mr Tantram - Counsel Mr T. Poulton Solicitors Mahons with Yuncken & Yuncken
For the First Defendants
Ms K. Judd
Victorian Government Solicitor
HARPER J
WHERE HELD:
MELBOURNE
DATE OF HEARING:
18 & 21 FEBRUARY 2005
DATE OF JUDGMENT:
28 JUNE 2005
CASE MAY BE CITED AS:
HASTINGS v BRENNAN & ANOR; TANTRAM v COURTNEY & ANOR (No. 3)
MEDIUM NEUTRAL CITATION:
[2005] VSC 228
JUDICIAL REVIEW - Applications for relief in the nature of certiorari – Obstruction of forestry operations – Whether forestry operations were lawful – Onus on prosecution to establish the lawfulness of the forestry operations – Whether boundaries of coupe were improperly defined – Whether compliance with Code of Forest Practices for Timber Production, Revision No.2 November 1996 - Failure to consider whether rainforest had been logged – Failure to consider whether operator had complied with the terms and conditions of its licence – Conservation, Forests and Lands Act 1987, s.95A – Applications granted.
APPEARANCES:
Counsel
Solicitors
Mr Hastings in person
For Mr Tantram - Counsel Mr T. Poulton Solicitors Mahons with Yuncken & Yuncken
For the First Defendants
Ms K. Judd
Victorian Government Solicitor
See decision in the case http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2005/228.html
His Honour ruled in favour of Hastings and Tantram that:
"The applications must be allowed. The decisions of the County Court in respect of each plaintiff will be quashed. I will hear counsel on the necessary consequential orders."
"The applications must be allowed. The decisions of the County Court in respect of each plaintiff will be quashed. I will hear counsel on the necessary consequential orders."