In this case, Environment East Gippsland (“EEG”) sought an interlocutory injunction against the state-owned timber agency VicForests to restrain it from logging areas of old growth forest in Brown Mountain.

EEG argued that the planned logging activity would constitute breaches of VicForests’ statutory obligations to protect threatened species in the area. It produced evidence of the presence of two such species in the areas – the long-footed potoroo and the sooty owl.

Satisfied that it was arguable that potoroos were present in the logging zones, Justice Forrest granted the injunction which will operate until the full trial at which EEG will seek a permanent injunction to restrain VicForests from logging these areas.

Brown Mountain is an area of old growth forest in East Gippsland and a major habitat for native fauna including a number of threatened species. It also holds substantial resources of native timber. VicForests had planned to start logging of two coupes in the area in early September 2009 after the State Government lifted a moratorium over most of Brown Mountain on the basis that its recent surveys produced no direct evidence of threatened species these areas. This was despite the DSE's advice that the results of its surveys were not conclusive.

EEG subsequently produced video footage which was said to show the potoroo in the areas to be felled. It also claimed that one of its volunteers had heard the call of the sooty owl in the area.

EEG asserted that evidence of endangered species in the coupes triggered various statutory obligations imposed on VicForests by the Sustainable Forests (Timber) Act 2004 (Vic) and the Flora and Fauna Guarantee Act 1988 (Vic) and the relevant code of practice for timber harvesting, forest management plan and threatened species action statements. It argued that VicForests would breach these obligations by logging in the proposed areas.

VicForests opposed the application on a number of grounds.

• First, it argued that EEG did not have standing to bring the application. In particular, it asserted that as EEG was not a peak body, had no official recognition by government in regards to its authority in representing environmental issues and had received no government funding, EEG’s interest was ‘a mere intellectual or emotional concern’ which is insufficient to confer standing.

• VicForests also argued that there was no serious question to be tried as the supposed obligations imposed on it by the Acts and related documents were merely 'statements of principle' rather than specific responsibilities so there could be no question of it acting contrary to such obligations.

• Finally, it argued that the balance of convenience favoured allowing the logging to proceed. In particular, it asserted that it would suffer significant financial loss if prevented from logging and that it would not be able to meet its contractual commitments with contractors and customers. It pointed out that any undertaking as to damages given by EEG would be effectively meaningless given its lack of substantive assets.

Justice Forrest granted the injunction on the basis that EEG had an arguable case that the planned activities would involve a contravention of VicForests’ statutory obligations.

He held that with 420 members, EEG’s level of membership, its activities on Brown Mountain including its conducting of fauna surveys, its regular communications with government concerning the area, as well as the fact that it appeared to be ‘the only body directly interested in the preservation of the area’s natural habitat’ gave it standing to seek the injunction.

He also held that there was a serious question to be tried. He disagreed with VicForests that the responsibilities imposed on VicForests were merely statements of principle, finding rather that they ‘set out precisely’ the manner in which VicForests would carry out its functions. Although he was not satisfied that there was sufficient evidence of the sooty owl's presence, he held that the evidence of the potoroo in the area gave rise to an arguable case that the statutory obligations were applicable.

Finally, he found that the balance of convenience favoured the granting of the injunction. He accepted that VicForests would suffer some financial impact if the injunction were granted and that an undertaking as to damages would be meaningless. However, he found these factors to be to be outweighed by ‘an extraordinarily powerful’ consideration in favour of the granting the injunction – namely, the destruction of the natural habitat which ‘appears to be necessary consequence of such activity’. He was clearly influenced by photographs of a nearby which had been recently logged which he described as showing ‘the apparent total obliteration’ of the area resulting from the logging. He reasoned that once native habitat is destroyed, it would not be able to be repaired in anything but the 'very, very long term' and concluded ‘irreparable harm’ would be done to the habitat of the native fauna and that of the potoroo if the logging were allowed to proceed.

He ordered the full trial be set down 'as soon as practicable' in order to minimize any financial impact on VicForests and its customers and contractors. The trial is expected to take place late 2009 or early 2010.

• The full decision of 14 September 2009 is available on Austlii

• Environment East Gippsland's - legal injunction to stop logging

• Vic Forests website