In defense of Dingo Creek

The basis of the Dingo Creek blockade and subsequent Court case was that the DNRE (now DSE) unlawfully destroyed rainforest, old-growth forest, two stands of Mixed Forest, a wildlife corridor, a rich arboreal mammal site, the core area of Powerful Owl habitat, a National Biological Site of Significance, a National Estate Site and an important fire-retardant buffer on the Errinundra National Park. Prior to being arrested for obstructing this 'lawful forest operation', I loudly & clearly notified the Forester in Charge, Nigel Brennan, that the Forest Operation was unlawful, & asked to have the Coupe boundary re-marked.

Nigel was under the impression that any forest zoned as available for logging could be clearfelled, and that the Forest Code of Practice is not legally binding, so there were no limits to the damage they are allowed to cause. The DSE continue to uphold his view in Court.

The DNRE have insisted on trying to prosecute the charge of "obstruction of a lawful forest operation", even though one of their own witnesses stated that the Coupe boundary went "into rainforest". The DNRE went into the case with the full knowledge that the Forest Operation included rainforest logging and destruction of the habitat of the threatened Powerful Owl.

RIGHT: Waiting for justice at Bairnsdale Court.

In the Magistrate's Court

A "contest mention" for the case was heard on the 1st of August 2001, at which the Prosecuting barrister, Peter Courtney, presented the DNRE's case and I presented the case for the defence. Courtney basically said that the Forest Operation was lawful as it was approved and the contractors were licensed, and that was all there was to it.
I responded that the Coupe was unlawful as it breached the Forest Code of Practice, the East Gippsland Management Plan and therefore the Conservation, Forest and Lands Act, plus the Timber Harvesting regulations. I cited the relevant sections of each document.
Magistrate Keith Lewis, coincidently the same one that fined me $2000 for blockading Goolengook in 1997, stated that I had cited far too much legislation for him to read in time, and therefore could not say what the likely outcome of the case may be. The case was deferred to a full hearing, which went on to include three days of hearings.

During the hearing, the DNRE first presented their case, which included witnesses giving evidence and myself plus barrister Gerard Mullaly, from Stary Myall and Associates, cross examining.

Dr. Steve Henry, the Flora and Fauna Manager for East Gippsland, admitted;
- that the Coupe was known to be Powerful owl habitat,
- that the Owl was a listed threatened species,
- that the Owl was dependent on hollow-bearing trees,
- that the proposed clearfelling included felling almost all of the hollow-bearing trees,
- that he had been to the Coupe to look for Mixed Forest (where rainforest forms an understorey), and then instructed the Coupe Planner to implement only standard prescriptions. This meant that he effectively instructed her to ignore the "Special Management Zone" guideline, "special planning required to protect rainforest values".

For her part, the Coupe Planner, Amy Ware, who also marked part of the Coupe boundary and oversaw the operation, told some amazing lies; - that the eastern boundary of the coupe was some "50 to 80 meters further uphill", from where it put it to her that it was; 26m from the flowing stream. I later showed video evidence of that very boundary being deep in pure rainforest and as stated, 26, from the flowing stream. - Ware also admitted that there was a bulldozer track "22 - 25 meters from a flowing stream", at the southern side of the eastern edge of the coupe. She admitted that between this track and the stream there were no eucalypts, but vegetation dominated by sassafras, a rainforest tree. I put it to her that if the forest was comprised of a rainforest species, more than 20 meters wide, with no eucalypts, wasn't that rainforest? No, she replied.

Other witnesses were unable to recall where dozer tracks were in the coupe, or where rainforest might be in the coupe, or even that there was a tree with a word "tapes" or "trees" painted on it. I found this amazing, as one of them must have painted that word, and others must have been to the location and seen it.
None of the DNRE had any idea what the boundaries of the National Biological Site of Significance, for Rainforest values (RFSOS), were, or what the scientists recommendations for the RFSOS were. Some thought the RFSOS was "about 300m away", another thought it was at Stagg Creek, in the next valley, but none could say definitely that it did not actually include the Coupe.

After three days of the DNRE presenting their evidence and us cross examining, I presented the case for the defence. My understanding was that during the DNRE's presentation, I was not to present any facts, simply ask questions. Any issue I intended to use in my defence, I had to give them the opportunity of answering. I must say, I found that a bit confusing; how does one present the argument for them to answer, without presenting the facts or the legal argument? I made sure that each point I intended to refer to later was included in questions to the witnesses.
Now that it was my turn, I was to only present facts, and not try to apply the law to the facts at that time.
With that in mind I explained;
- that the RFSOS did in fact include the Coupe, the whole valley.
- that the reasons for its declaration included acting as a fire-retardant buffer on rainforest found in the adjacent National Park.
- that the Forest Operation was destroying not only Powerful Owl habitat, but also a Yellow-Bellied Glider corridor.
- that rainforest still occurred inside the Coupe boundary, even after it was remarked to change the eastern boundary.
- that the "filter strip" the DNRE had marked was in fact rainforest.
- that the eastern boundary as it was marked at the time of my arrest was at least 30m deep into pure rainforest, and that it was only 26m from the flowing stream.
- that there were two stands of Mixed Forest inside the coupe boundary, one of which had already been clearfelled, and the other was partially destroyed.
- that hollow bearing trees had not only been felled, but they had not even been utilised and lay as waste in the clearfell.
- that logs including one of 2m diameter by 13.7m long had been left behind as waste. This log I also counted 310 growth rings on to the hollow in its centre. This suggests the tree was around 400 years old.

Once all the evidence had been presented, we then agreed to submit in writing our interpretation of the law as it related to the facts.

My submission was thorough and lengthy. I pointed out that a detailed ruling was required, to clarify once and for all exactly what the DNRE's legal obligations were, as the fate of rainforest, threatened species and Sites of Significance were at stake.
I submitted that the Forest Operation was unlawful in four different ways, and in some of the ways was unlawful in more than one count. These were;
- that it was unlawful as it breached the Forest Code of Practice, by failing to protect rainforest, mixed forest, a wildlife corridor and Powerful Owl habitat.
- that it was unlawful as it failed to comply with legislation that protects threatened species, including the Powerful owl and Cool Temperate Rainforest.
- that it was unlawful as it was an un-approved operation. This was based on the fact that the approved Coupe was 35 hectares, with SMZ guideline in place, while the actual operation ws a 53 hectare clearfell with no "special planning" to protect rainforest or other values.
- that the charge laid against me was not a valid charge, as it breached the purpose of the Conservation, Forests and Land Act, which states that the logging should be "environmentally sound, socially just and economically efficient". I disputed that any of those three criteria were true for the Coupe, and therefore I should not be charged for trying to uphold those values.
To read the submission for yourself, click here Written submission 200kb.

Gerard Mullally also put in a submission, which cited Bob Brown's Goolengook case, where it was shown that the NRE had scheduled and begun clearfelling 100m inside a protected heritage River area. Gerard said this proved scheduling a coupe in a protected area made it unlawful, and as the Dingo Creek coupe went into protected rainforest, it too was unlawful. He also showed that rainforest was protected by the Forest Code of Practice which IS legally binding, as stated in sections of the Conservation, Forests and Lands Act.

The DNRE's response to the submissions basically confirmed the view that there were no laws that applied to them. So what if Owls are exterminated, rainforest logged or the National Park threatened by bad fire management? That doesn't make it unlawful.

They also tried to dismiss all of my evidence and written submission, as "the evidence he purports to present as to his own observations and opinions is clearly neither dispassionate nor balanced. Thus, many of the observations made and opinions expressed in Mr Hastings submission are not accepted by the prosecution."

Both Gerard and myself responded to the submission, with my response basically reinforcing the earlier, lengthy document.

In the Bairnsdale Magistrate's Court on Monday, 17th June, Magistrate Dugdale handed down his verdict.

In his verdict the Magistrate said that as only DNRE Foresters and I had presented evidence, and I had not established myself as an expert, he had accepted the DNRE views.

Magistrate Dugdale also said that while DNRE witness Cuthbertson had admitted rainforest was inside the Forest Coupe boundary, but had been re-marked prior to logging, that it did not make the whole of the forest operation unlawful.

He made no comment on the other legal arguments we submitted.

Magistrate Dugdale then ordered fines of $500 each to be paid, plus $5000 Court costs.

Solicitors Stary Myall generously agreed to waive their costs to the defendants, acting pro-bono as they wished to help defend the forests.

Other charges

In February 2002, I also faced two other charges; resist Police (for refusing to get into a Police vehicle, when my own car was right there and I agreed to meet them at the Police station), and for "wilful damage" to Sellers Rd gate, which I deny.
In a contest mention, it was agreed that the gate charge would be dropped if I pleaded guilty to the resist charge. I agreed, and was fined $250 plus Court costs

Another blockade took place at Survey Rd, Jan 28, 29 and 30th 2002. This blockade stopped the clearfelling of known Quoll habitat and old-growth forest. DNRE and Police were very heavy-handed with protesters and injured people. This will almost certainly result in further Court scenes, possibly with both sides laying charges.
For my part, I played only a supportive role and assisted with documenting evidence.
After that at Goolengook, Gus was up in a tree-sit. The bulldozer nudged his tree, making it shake, and trees next to him were cut down. He stayed. He ran out of food and water. Spotlights were trained on him all night. People tried to run in and supply him water. They were tackled to the ground, handcuffed and dragged out. After 24 hours with no water, he came down. HERO!

Any wonder I was determined to pursue the Dingo Creek case - I rage against the injustice of the NRE injuring and endangering my friends in their pursuit of trashing majestic old-growth forest to supply the Japanese with woodchips! What is a government department doing attacking Australians and destroying national heritage for foreign benefit? Opposing them seems my patriotic duty.

In the County Court

As a further 7 coupes are still planned within the Site of Significance, and could still be protected, I decided to go again and appeal the Magistrate's Court decision.

I lodged my intention to appeal just inside the 30 day limit, and was notified of a November 11th hearing in the Melbourne County Court.

This was soon changed when I was called to appear with only 6 days notice in the Bairnsdale County Court on the 29th July. Greg wrote me a note, giving me permission to make arrangements on his behalf (a bit dodge - only a barrister should represent someone else). I applied for an adjournment, explaining that we did not have legal representation and were not prepared to begin. Judge Wood noted that it had been over a year since the offence was committed and considered that to be plenty of time, so instructed me to return in two weeks, ready to proceed.

During that fortnight, I lodged subpoenas for evidence from the NRE, attended the coupe with botanist Kevin Thielle - who agreed rainforest had been logged. met with and briefed Barrister David Perkins. After viewing the material, David decided that as the Forest Code of Practice and the East Gippsland Forest Management Plan were both similarly enforceable, but the Code has only guidelines while the Plan has prescriptions, he'd try enforcing the Plan. He could not look at the case further until he had an original copy, he told me.

New copies of the Management Plan are available only from the Orbost NRE, so I drove into town to borrow one from a friend, which I delivered to David's door that night.

The next day, Friday, I received a call telling me that David couldn't appear in Court with us, as another case he was already involved in had been adjourned to that day. He'd returned the Management Plan & other notes to the Barrister's, back in Brunswick. I then had to immediately drop everything, jump in the car and drive back to town to get it, in case I needed it to begin the case on Monday. With minutes to spare I made it to the Solicitor's, then realised I'd left my wallet at home & had not the petrol to drive back. Great.

The real problem was that I'd not stopped to think, and so had not called the Court or the prosecution to tell them we'd be seeking an adjournment.

On the Monday, Greg and I appeared before the Court, with the prosecution ready to begin, their witnesses waiting, our case ready, but with no lawyer. Prosecuting Barrister Peter Murphy had his black gown and wig on, "nice dress" I said to him, causing an amusing pink flush.

Judge Wood was unimpressed that we were not ready to proceed, and called the Heidelberg Court to confirm my story about why David Perkins had not showed.

The prosecution laid down a claim for $1500 costs, as they had appeared in good faith that the case would proceed, including bringing a solicitor up from Melbourne. I haggled it down to $1000, then applied to have our cases split, so that I could begin the case, representing myself and avoiding the penalty, while Greg sought an adjournment, so he could be represented by a lawyer.

The Judge agreed that was theoretically possible, but explain it would be the Court's preference to have the cases heard together. He said he may not be inclined to grant Greg an adjournment, as Greg had made no effort to seek a lawyer and had not attended Court previously.

I then called for a "recess" so I could discuss our options with Greg.

"YOU WHAT?! !" the Judge bellowed. I insisted, and succeeded in having the Judge and all his mates leave the room so Greg and I could talk about what to do. I explained to Greg that I felt confident, that I believed in my ability to run the case, that the Court was obliged to help me do it and that the important thing was we establish the facts. If we lost on legal argument, we could then take it to the Supreme Court, but only as long as we established the facts. Greg insisted that he needed a lawyer, Stuey insisted we adjourn so we could prepare the case more and "get a QC", even the Peter Murphy said to adjourn it.

Greg later pointed out that we should have gone into the briefing room to discuss it privately. Oops.

After calling them back in, I then reluctantly called for an adjournment, which was granted. I was so Pissed Off; I felt I could have done it, and won. It felt like I had conceded defeat and walked away from a fight that I knew we could win. The $1000 costs penalty was like a bonus the Court was offering if I went for it. In hindsight, I still feel this was the moment I gave in and lost the case.

The hearing was adjourned to October 28th, in the County Court in Bairnsdale.

After presenting a brief talk & overhaeds to a conservation group, I met a lawyer called James Gray. He was a member of and recommended by Lawyers for Forests, and initially displayed a friendly, easy going attitude that I liked, so we chose him to represent Greg. Very quickly the mood changed, and he insisted on representing us both or not appearing "I don't want blockade rabble speaking to the Judge" he told me.

Our of respect for Greg's wish to be represented by a lawyer, and with the hearing imminent, I felt bound to accept his conditions. It was difficult for me, as he obviously had not read my written submission, interrupted often and effectively prevented me from briefing him properly.

I could see that confusion was the Department's greatest tool, so we hd to be very clear about what the facts were, reinforce them with their own testimonies and as often as possible relate those facts to the relevant laws. I prepared a script, of exactly which witness could establish which fact and what question would draw it out of them. I wrote it for me to use, but as James was to represent us, I offered it to him. "Don't tell me how to do my job", he replied, refusing to read it.

When we were scheduled for a "call over", we had agreed that we would both appear, then if it was adjourned, we'd both go and do a coupe inspection. Instead, James rang me on Saturday morning, told me he would not be appearing as the Judge's aide had advised him that we would be adjourned. When I questioned him, the phone cut out. I rang back and got "the number you are dialling is switched off or out of range..." I emailed. James did not return the call or email, so I went to Court as agreed.

It was interesting seeing the Judge in action; he liked to work fast, liked throwing down little challenges to keep the lawyers on their toes. I also got a few inside tips on the prosecutions case. I sent an report back to James including this "I'm really enjoying working on the case, and would like you to consider splitting the case between us. I would hope that you could ensure victory, by running the strongest arguments. I'm interested in running the more difficult and obscure arguments, in the hope of achieving threatened species protection. Both Greg and I have arguments we'd like to see run, which are unlikely to win the case, but would add to the context and meaning of the verdict."

His response: "it's a pity for the conservation movement you're so ego-centric...I'll send the brief back. This time don't bother begging. I can see why no one else will work with you"

Basically, I allowed his bullying so that Greg could be represented, and that a lawyer could present our case. I had to trust that such an attitude was backed by professional capability, but managed to hold onto the point that as the defendant, he had to follow my instructions. I've later found a legal source called the "Lawyer's Practice Manual", which includes a section on lawyer-client relationships & the requirement to follow client's instructions. I recommend refering to this if having trouble dealing with lawyers, or seeking procedural advice.

Throughout the hearings, I was allowed to sit at the "bar" opposite James, as a solicitor would. James gave me some 'post-it' notes smaller than matchbox, with the comment "try to keep your instructions to this". He may as well have given me a broken pencil as well, as he did not ask any question I suggested or follow any other instruction I put to him.

Consequently, the subpoenaed evidence was not called, so the NRE's own evidence on which timber had been taken & sold, and at what prices, was not revealed. This could have proved that a substantial volume of rainforest timber had been taken from the coupe.

After reading the transcript of the case, it's clear that Judge Gebhardt instructed him to prevent the Court becoming a "political forum", as the Judge had already formed the view that was my intention. Before the hearing began he had read my legal submissions from the Magistrate's Court and said "I saw it, it seemed to be too long and irrelevant." He then added "The problem with Mr Hastings is that I'm really not very attuned to the notion of the Court being turned into some political forum."

We had hearings on the Monday afternoon, including Dr Stephen Henry, the Flora and Fauna Manager. He admitted that you'd be likely to find rainforest & mixed forest in the area, and that buffers should be applied. He conceded that the area was known Powerful Owl habitat and probably Sooty Owl habitat, and both are threatened species. He acknowledged that the habitat requirements are hollow-bearing trees, but "the prescription is 5 trees per 15 ha" to be retained. The argument that this fails to fulfil the requirements of the Flora and Fauna Guarantee Act 1988was never put.

Dr Henry added that "Special Management Zones have one or more special features that are required to be catered for in any harvesting planning within those areas" and that in this area it was for the Rainforest Site of National Significance.

Senior Forester Wayne Long was called to the stand. His testimony included "my Forest Officers went out there and using some of the grid references that Mr Hastings supplied, checked those areas and found there to be no breaches", referring to the coupe audit conducted by Cuthbertson & Channon. In fact, no grid references were supplied, and Cuthbertson found the boundary "went into rainforest". This lie was to prove crucial evidence, as it whether or not the Code of Practice was breached was critical to the case, and the Judge took his statement as fact.

Before hearings began on the Tuesday morning, 19/11/2002, the Judge called the Barristers into his chambers.

James Grey informed me that the Judge did not think we had a case and a deal was offered, to prosecute us with no fine, no conviction and no costs if we were to change our plea to guilty.

I asked if my case and Greg's case may be split, so that he could have the option if I didn't accept it.

James returned to the Judge's chambers to seek an answer, then came back and replied no, that we must both accept the guilty plea to get the deal.

I apologised to Greg and informed James that I wished to proceed with the case.

The hearing continued with Wayne Long on the stand. He was shown the video of the coupe boundary, where it runs through rainforest. Although he admitted seeing rainforest trees, he claimed the presence of tree-ferns or the occasional gap in the canopy made it not rainforest by the DNRE's definition.

Amy Ware was called to the stand, who was the Coupe Planner and Officer responsible for marking out the coupe. She originally identified stands of Mixed Forest inside the coupe, but after calling Dr Henry out to look at them, it was decided they should be logged. While Dr Henry claimed it was because they were not of sufficient size, Ware says "we had assumed areas of forest to be Mixed Forest and erred on the side of caution in our 70% interpretation, and that these weren't in fact Mixed Forest."

Ware also admitted there was rainforest, "it was within the gully systems".

She also claimed to have been present during the Coupe audit, which is contrary to what was said in the Magistrate's Court. She also said she inspected the areas mentioned in my letter and I observed the track in all those areas, and I didn't consider it to be passing through rainforest." This again contradicts the previous testimonies and the actual finding of the time, which was that the boundary "went into rainforest". She then admits "I was away from work at the time", the time being when the audit was done and the boundary re-marked.

She then admits that the tapes were found in rainforest, but alleges that the point where this occurs had "a distinct bend in them". She never observed this herself, and in fact is not true. This further lie was added to build the theory that protestors had moved the boundary tape, thereby creating a myth that the Department had never done anything wrong.

Ware was shown the aerial photo and map I'd prepared, which showed the actual positions of the coupe boundaries based on GPS points - without the alleged bends. The video was shown again in part, and Ware was asked to plot one of the GPS points seen in the footage. She correctly located it, and it was obvious that it occurred where I had mapped it and was no-where near the zig-zagged boundary the Department had mapped.

Ware did admit that the increase in coupe size, from the approved 35ha to the 53ha marked at the time of my arrest , had not been approved.

Andy Channon is called to the stand. He confirms that Amy ware was no there during the coupe audit. He pointed to the Department's map and showed that it was at a point on the southern boundary where there was a bend in it, "we came across a section where the tapes were running straight for quite a while and they darted off, on an angle., down towards the gully, and they came back again at sort of a 45 degree angle." If the Coupe Plan were referred to, it could be seen that this is exactly as they had marked it; where the 1st boundary had run north-south provided one angle, then where the 2nd boundary intersected with, coming from the gully to the east, provided a point. Unfortunately, this was never pointed out to the Judge, nor was the fact that this point was not the location that the boundary went into rainforest and was re-marked.

Adam Green was called to the stand, he described his marking of that boundary "Basically from the corner, we didn't come straight down to the gully, we sort of veered across on an angle. Until we basically picked up a point further down, which was 20 meters from the gully."

He also conceded that the eastern boundary was marked as a streamside buffer, 20m from the flowing stream.

Botanist Dr Kevin Thiele took the stand, handed up a scientific report (54kb) describing the rainforest he found.

Judge Gebhardt said he'd dismissed Kevin's entire testimony, saying "I can't give much weight to Dr. Thiele's evidence, at all."

GRAY: Why do you say that, Your Honour?

GEBHARDT: Because he comes from a position of bias, and I have to be dispassionate. He used the word dispassionate and the whole point of a trial of this nature is or the bench to be dispassionate. I have my own views, but I can't allow them to intrude. His views were intrusive, and I picked them up even before Mr Murphy asked the question, because I put the matter of the Department behaving with caution, and he wanted to comment on that."

In the field I had asked Kevin if he thought the Department had acted with caution. His response was something like; "how can they have used caution, when the result is this?" and indicated the rainforest cut through at the coupe boundary. Gebhardt refused to even hear his comment, making his mind up on evidence that was not presented.

Greg and I both took the stand, but our testimonies were similarly dismissed. More details of what we said may be added later.

I had subpoenaed Botanist Bill Peel to appear. He is the author of "Rainforests and Cool Temperate Mixed Forests of Victoria", which he described as follows; "without wanting to appear bold, it's the seminal work on rainforest in Victoria. It's the most up-to-date publication, it was put through peer review, prior to publication. It's published by NRE, it was approved by both the conservation side of the Department as well as the Forestry side of the Department and has the blessing of the Department."

The highlight of his testimony was when shown photographs of the forest at the coupe boundary, he concluded "that's rainforest".

An interesting point James raised was that for the criminal charge against us to be prosecuted, the element of mens rea must be proved. That is, that we knew we were committing a crime. As we believed the logging operation unlawful, and if it were unlawful our actions would not be illegal, the mens rea element could be proved against us.

James had until Thursday 10am to email a written submission, the prosecution had then until 4 to prepare theirs, then James until 5, when the Judge would take and begin considering the material, before delivering his verdict 10am Friday morning.

James refused to allow me to have input or proof-read his written submission. I reminded him of the two I had prepared & given him, plus of Gerard Mullaly's and of the prosecution's previous submission - which Peter Murphy told me would be pretty much the same as the one he would submit this round.

Greg arrived in a log truck, in front of the Court on Friday to hear the verdict. Due to the "lengthy written submissions" the verdict was adjourned, to be handed down December 18th in Melbourne.

The appeal of Hastings & Tantram was dismissed, meaning we lost.

You can read Judge Gebhardt's verdict here; the verdict (30kb) In his verdict, Judge Gebhardt ruled that the Forest Code of Practice was not enforceable, but did not consider that failing to follow the Code meant the Department had no lawful excuse for taking Forest Produce. He concluded "16. I am satisfied that the coupe was not unlawful and, thus, the appeal is dismissed."

His honour did not address the issue that rainforest is protected under the Flora and Fauna Guarantee Act, which required the NRE to have a special permit to log it, which they did not have.

He also did not address the fact that a 53ha clearfell was being carried out in a "Special Management Zone", which had not been approved under the "Wood Utilisation Plan".

He also made no reference to the fact that the rainforest was part of a National Site of Rainforest Significance, which according to the Code of Practice "Should be given the highest degree of protection, generally at the sub-catchment level". (But, neither did James!)

The Judge thought that the case was a waste of time, and that issues such as rainforest protection should be dealt with politically, not through the courts.

The ruling effectively means that the NRE have no laws that govern their actions. The RFA claim that "rainforest is 100% protected" has been proven false.

The appellants were given a 12 month good behaviour bond, no fine, no conviction, but $14,000 legal expenses to pay between them.

In summary, I'm grateful to our lawyer, James Gray, for his efforts, for networking with other lawyers, for excellent legal banter during the case, I must say I'm disappointed that he did not visit the coupe, did not read my written submissions, did not allow me to speak openly to him about it, did not follow my instructions, did not call the evidence I subpoenaed, did not allow me to proof-read his written submission and did not enter a response to the prosecutions submission.

After seeking help and advice from around 30 legal professionals, I conclude that the rude, arrogant ones also proved the least competent; they gave advice off the top of their head, which was often wrong, whereas others researched and provided correct, referenced answers.

Gabriel Kuek of Access Law deserve high praise for being consistently helpful, respectful, supportive and understanding.

Supreme Court review

Under s.92 Magistrate's Court Act, an appeal can be taken to the Supreme Court on a question of law, from a final order of the Court in that proceeding. Such Proceedings are called "Judicial Review," and conducted under the Supreme Court Rules (General Civil Procedure), "the Rules", Order 56.

The procedure begins with a 'Directions Hearing', at which the paperwork is reviewed and if there appears to be a sound case, then a trial date is set. Although the Supreme Court website provides a copy of the Rules, which set out the procedure to be followed, I soon learnt that there is much more to the process. A better version is the massive black folder by Williams, (library reference KN361 K2V32 WILL) which includes footnotes & references to relevant cases.

The Department was represented by the Victorian Government Solicitors Office, the VGS.

This case has had numerous Directions Hearings, at which I've fumbled & stumbled my way through, submitted Affidavit after Affidavit and document.

The procedure begins with an "Originating Motion", which sets out the orders sought from the Court and the legal grounds for them. The relevant facts are then set out in an "Affidavit of Support", with paperwork & evidence tendered by an "Affidavit of Document". While the Rules include forms to be used when preparing these documents, I really needed to see an example in order to understand the language, grammar and content required. While a practising lawyer can refer to an example from their company's files, my requests were denied with comments like "we've closed the file," and "this will be my final correspondence."

My flawed efforts were met with the response "there are serious substantial and procedural errors," but without any guide as to what the errors were or how to fix them! All I could do was submit several versions in the hope one of them might be acceptable. Near the end of the Directions Hearings, after all my documents were in, I received from the VGS the Affidavit of David Ryan (93kb). The first part of this is the Affidavit of Support, which sets out the relevant facts, written in the first person. The second part is the affidavit of documents, containing pages with "Certificate identifying exhibits." The exhibits themselves are to be served on the opposition, but not filed with the Court. They are handed up at the beginning of the hearings in an indexed, numbered folder.

The Supreme Court has jurisdiction to order the DSE to comply with the law, so I submitted documents seeking orders of mandamus, prohibition & certiorari to that effect, but eventually these were rejected. This was because that 'remedy' does not follow from a Judicial Review: we are there to review a Judge's decision, so how can giving orders to the DSE be an outcome?

A significant challenge was that we've not been able to pay $1600 to purchase an official transcript of the case. Instead, I spent a week transcribing the tapes myself, and submitted it attached to an Affidavit of Document. After receiving this, the DSE then paid for the real one. Strangely, when I received that, on October 25th, 2004, I also received - for the first time - a charge sheet from October 2001, alleging that I had "obstructed" the logger Keith Jamieson! The charge was laid by the solicitor Peter Courtney - who wasn't at the blockade and obviously had no knowledge of what happened. The Court record shows I was found guilty of this offence, even though it was never given to me, or discussed during the hearings. Had it been, I would have pointed out that it would have been impossible for me to obstruct the logger, when I was in fact 35m up a tree!

Examining the record shows that on the 4th of April 2001, Dr Henry misdirected the Department Officers in how to recognise rainforest. Prior to that day, they had successfully identified Mixed Forest and Rainforest in the coupe, but after that day, nothing they saw was rainforest. The two botanists thought otherwise, so doesn't this indicate a problem? A zoologist writing rainforest prescriptions, without peer review, and instructing staff in application of the definition with the result that rainforest is not protected. Certainly the end result falls far short of the Flora and Fauna Guarantee Acts goal, "to allow the ongoing evolutionary processes" and the Code of Practice requirement for "full protection" of rainforest.

I'm amazed that not only can the Department not be stopped from logging rainforest and threatened species habitat, in blatant violation of every document written on forest management, but we can be prosecuted for trying to stop them. If you have any idea how to remedy this problem, PLEASE let me know.

Seeking advice, I was referred to the "Public Interest Law Clearing House", PILCH, who required confirmation that the case was in the public interest. That hurdle cleared, we were referred to the Victorian Bar Legal Assistance Scheme, who wanted assurance the case had legal merit. They recruited a barrister whose Memorandum of Advice confirmed this, then they "closed the file"! When I objected and insisted that I still needed help with the documents, our mate James Grey intercepted, claiming he had been briefed to represent us - which prevented me seeing any other barrister. At the meeting with him, he could/would not amend the documents to an acceptable form, would not appear at the next day's Directions Hearings and admitted he was no longer briefed and did not represent us. With little other choice, I adjourned the hearing and was awarded costs against for doing so. I again begged to have Vic Bar to re-open our file, which they did, referring us to a Senior Barrister. Eventually the documents were sorted out, but this barrister said it was an "abuse of process" to be hoping the courts would provide a ruling useful for forest campaigns. Pleadings which are an abuse of process can be struck out, (Supreme Court Rule 23), meaning our case could be thrown out of court. The barrister advised us not to proceed, purely because if we lose the penalty could be over $100,000 in Court costs. Such a debt would be a poverty trap difficult to escape from. Unfortunately, based on the 'abuse of process' advice, the Victorian Bar Legal Assistance scheme then refused any further legal help.

This did not deter Greg or I from seeking to have justice done & threatened species protected. Eventually an Amended Originating Motion (49kb), was consented to and accepted by the Court.

With the documents corrected, filed & served, we finally reached consent with the VGS that we were reday for trial. We agreed to exchange written submissions, provided for in the Rules as an "Outline of Argument" which is limited to 10 pages of double spaced text. A copy of my argument can be read here(93kb).

A quick guide to case referencing:
DPP v Brown (1998) VSC 117; "VSC" refers to a Victorian Supreme Court decision, number 117 made in the year 1998, found at http://www.austlii.edu.au/au/cases/vic/VSC/1998/117.html.

Other cases may or may not be found on the internet. Searches can be made via http://www.austlii.edu.au. The Melbourne University Law Library, level 3, north end of Leicester St, Carlton, has a full set of all published reports.

For example Jarrad v Silver Top Taxi Service 29ALR533 can be found in Volume 29 of the Australian Law Reports (ALR), on page 533.

Flynn v DPP [1998] 1 VR 322 at 346[15-18]; this case can be found in Volume 1 of the Victorian Reports, from the year 1998, at page 322. Here I've referred to paragraphs 15 to 18 on page 346.

Directions hearings were again had on February 17th, 2005, where the VGS insisted that Greg's and my cases be separated, required Greg to file & serve his own Originating Motion. Anticipating the move, I had one prepared. I continued to appear self-represented, while Greg was represented by Trevor Poulton of Mahons with Yuncken & Yuncken. Finally we were ready for hearings!

The hearings were held over two days, on February 18th and 21st, before Justice Harper. As the Rules did not allow for written submissions, I had prepared a script I intended to read from, which I handed up as a "note" (196kb). This contains a comprehensive guide to environmental legislation relevant to forest operations in Victoria, and sets out errors of law in the County Court's decision.

At the beginning of the hearings, Justice Harper expressed his concern that self-represented person often waste the Court's time with issues they think are important, but are irrelevant. He corrected my view that I could use any material in proving error in the County Court's decision, limiting our submission to material that Judge had seen. This meant that I could not really use the 'note', but instead responded to questions put by the Judge. I could also not point out that theconcepts of raifnorest used by the Foresters were contrary to the definition of cool temperate rainforest provided by the "Final Recommendation on a Nomination for Listing"(207kb), of Cool Temperate Rainforest under the Flora and Fauna Guarantee Act 1988.

On Monday 21st February, Justice Harper of the Supreme Court ruled that the Code of Forest Practices for Timber Production is enforceable under law, and that DSE officers must ensure that "individual licences or the boundaries of coupes" comply with the Code or logging carried out relying on those documents "will not be lawful".

His Honour explained that "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 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."

Prior to this ruling, the Department of Sustainability and Environment, DSE, argued that the only lawful requirements were zoning an area available for logging and having licensed contractors. The ruling is no 'get out of jail free' card for protestors, as the Bracks Government has introduced new 'Public Safety Zones' which makes surveying areas to be logged a crime.

Trevor Poulton commented "The Rulings of Justice Harper certainly now puts DSE and VicForests on the defensive in terms of logging of coupes. In fact, the EPA audits could now incidentally form part of evidence gathering against DSE for breaches of the law where the Code has clearly not been complied with. In this regard, environment groups now have some leverage with the government in discussing forest management issues."

Our case built on precedents including Flynn v DPP [1998] 1 VR 322, which challenged the validity of logging plans that failed to protect threatened species. Their Judge found that they were valid and that it was not permissible to collaterally challenge them in a criminal proceeding. When this case was cited in an attempt to dismiss Hastings & Tantram as a similar challenge, it was agreed that the Code of Practice, Management Plan and Wood Utilisation Plan were valid, incorporated into law and should be considered subordinate legislation. The Department's failure to protect threatened species at Dingo Creek was contrary to these and therefore contrary to law.

The case of Shields v DNRE [2002[ Geelong County Court, unreported, 'the Ciancio case', was used by similarly quoting page 13 of the Code, which states that other Plans and Prescriptions must exceed the Code's minimum values.

After ruling that compliance with the Code was a lawful requirement, Justice Harper then asked to see any Code breaches that were shown to the County Court.

Other examples cited were:
- the lack of detailed plans to fully protect rainforest, or protection at the sub-catchment level, which s2.3.7(iii) of the Code requires for the Site of National Significance;
- The strict application of minimum size and canopy closure requirements for rainforest, providing less protection that the Code requires;
- The use of an arbitrary circle to claim adequate protection of Powerful Owl habitat, contrary to the requirements of s.2.3.6 of the Code, and the Management Plan requirement for conservation within the 'Special Management Zone'.

While the Judge accepted that prescriptions contained within the Management Plan were required by the Code, and included in his judgement "Forest Management Plans and Forest Coupe Plans ...(are) required to be consistent with the Code and to exceed the minimum requirements outlined in the Code where encessaruy to protect environmental values". (Hastings v Brennan & Anor; Tantram v Courtney & Anor [2005] VSC 228 at [22].

The verdict is 13 pages long and is summarised as follows:
- Relief in the nature of certiorari is granted & the County Court decision, (that Hastings & Tantram were guilty & has to pay $15000 court costs), is quashed.
- Hastings & Tantram were charged with "obstructing a lawful logging operation" (s.95A(1) Conservation Forests and Lands Act 1987) and "obstructing a person in the lawful carrying out of forest operations" (s.95A(2) CFL Act). These offences have three common elements; (1) that the person hindered or obstructed the activity; (2) that the activity could be described as "forest operations", and (3) that the forest operations were lawful. The third element here was in dispute.
- The plaintiff's case was that it was unlawful because the coupe boundaries either included rainforest or had insufficient buffers on rainforest, and that rainforest or protected trees such as "individual trees which, because the contained the nests of the Powerful Owl, could not be lawfully logged".
- Although "it is highly regrettable that the judgement of the court should contain the inconsistencies", of wording re the burden of proof, the County Court Judge was satisfied beyond reasonable doubt that logging was lawful.
- The Code of Forest Practices requires "rainforest must be excluded from timber harvesting". The Code is incorporated into law via the CFL Act and the Forests (Licences and Permits) Regulations. It follows that loggers were bound to comply with the Code, but question remains if this applies to the Department.
- The County Court Judge required "a conscious disregard" for the Code & other instruments. "If this is so, then careless stupidity, resulting in (for example) large areas of rainforest being included in a coupe and subsequently logged… would not render that forest operation unlawful. But in my opinion it is not so."
- Forest Management Plans and Forest Coupe Plans "are (and were) also required to be consistent with the Code, and to exceed the minimum requirements outlined in the Code where necessary to protect environmental values".
- The County Court's judgement "does not address the real issues in this case," as it did not consider "that rainforest is protected by the Code, that logging of rainforest is illegal, and that such logging was being carried out in the coupe". The County Court "was bound to explain the reasons for his choice. This was not done." The County Court's "failure to consider, in his judgement, the plaintiff's case that the licence holder had failed to comply with the terms and conditions of the relevant licence is in my opinion itself a sufficient basis upon which to grant relief in the nature of certiorari". The grounds put forward that "the judge failed to provide adequate reasons for his decision …must be upheld".
- "This is not a precedent either way", in terms of whether the defence of honest and reasonable belief can be used "by self-appointed protectors of the environment"
- The applications should be allowed because "they were denied natural justice because the judge predetermined their guilt", when he formed a view early on "that the 'presence' of 'some rainforest' was not something of relevance".

Following the verdict, "consequential orders" were required. A few drafts were exchanged, then the cas was Mentioned before Jsutice Harper.

A detailed "consequential Orders Submission" can be read here.[56kb]

The Court's Orders were essentially:

1. The orders of the County Court of Victoria at Bairnsdale be quashed.
2. The case be remitted to the County Court for re-heraing by a Judge other than Gebhardt.
3. The defendant spay the plaintiffs' costs of this proceeding and the reserved costs.
4. Costs before the County Court include the previous appeal.

County Court

Following the Supreme Court's orders, we were obliged to again appeal our case before the County Court. All of the costs of the previous County Court and Magistrates Court hearings were at stake, possibly we owe $50,000 if we lost, and we could still be found guilty have further fines imposed and even criminal records.

The Victorian Government Solicitors Office handed the case back to the DSE, while Informants Nigel Brennan and Peter Courtney did not respond to any correspondence. Presumably they were letting the honchos in the city make all the decisions. When I asked the Registrar at the Bairnsdale Court what I must do to bring the case to trial, he said he was waiting for the DSE to decide how they wished to proceed. His opinion was that they may not, purely because it would be a waste of time and money. His note implied that he thought we were guilty, which concerned me that this bias may be conveyed to the Judge.
After carefully reading the procedure from the County Court Miscellaneous Rules (1999), I sent documents to confirm our readiness and intention to proceed. A letter from Kirsty Douglas, Acting Director of Legal Services, mischievously implied they were waiting for us to proceed, while a more honest Legal Officer admitted they knew nothing about the case and had no basis for deciding how to proceed.

I sent the DSE and County Court Registrar this "Statement" [59kb], which sets out a summary of the facts and laws involved in the case, and explains how the DSE could not possibly win. I suggested we proceed by "Consent Orders", which would be that we are found Not Guilty, have all our costs paid, and that'll be the end of it.

Anticipating victory, I wrote to Stary Myall, James Gray and Gabriel Kuek of Access Law, seeking itemised bills that I could present in order to settle for their costs. Amazingly, Stary Myall did not respond at all, throwing away thousands of dollars, while Access Law nominated arbitrary figures they sought, but argued over procedure instead of providing a bill. I went over my detailed records and drafted bills for Greg, myself and the lawyers, which listed items and costs as required by the rules. After further hassle, I sent a copy to the DSE which detailed only Greg's and my costs, and listed arbitrary figures for the lawyers.

On September 18th 2006, we went before the County Court at Bairnsdale. The DSE agreed to proceed by Consent Orders as I suggested, if we could finalise the costs immediately. In the absence of itemised bills from the lawyers, I could only haggle on their behalf. Considering that it would be Greg & I "with our necks on the chopping block" (as Peter Murphy put it), if we could not agreement, I settled for a figure somewhat less than the lawyers wanted. Funny after all the rudeness, intimadation and arrogance lawyers dealt us with, that the case would end with me represent them!

We went before the Judge and handed up Consent Orders, as proposed, and walked out with all charges dismissed, all our legal costs paid and the case finally over. Greg and I both felt relieved the case was over, but disappointed that we failed in our objective to improve logging to minimum legal standards. People arrested during logging at Dingo Creek in 2005 are now preparing to appear before the Courts. Adam Green, the idiot who marked the boundary through rainforest, had been promoted to Coupe Planner and his Coupe Plan reveals no planning to protect rainforest, no plan to conserve Powerful owl habitat, and no recognition of the Site of Significance. The logging therefore failed to comply with the Management Plan or Code of Forest Practice and was again unlawful.

Mark DeBono of ABC regional radio was the only one to pick up our Press Release, but did not air our prepared statement expressing disappointment over the DSE's ongoing unlawful destruction of threatened flora and fauna. The DSE apparently heavied him after this, still pretending there was no problem with the logging at Dingo Creek and it was not unlawful. SIGH....

For more information, email Tony "Quoll" Hastings

To see a tour of Dingo Creek coupe click here

GECO - go to the Goongerah Environment Centre homepage