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Daily Transcripts

TRANSCRIPT OF PROCEEDINGS
____________________________________________________________
SUPREME COURT OF VICTORIA
COMMON LAW DIVISION
MELBOURNE
BEFORE THE HONOURABLE JUSTICE OSBORN
B E T W E E N:
MYENVIRONMENT INC Plaintiff
- and -
VICFORESTS Defendant

MS K. WALKER, with MR E. NEKVAPIL, appeared on behalf of the
Plaintiff.

MR I.G. WALLER SC, with MR H. REDD and MR N. KASKANI,
appeared on behalf of the Defendant.

Day 1 - MyEnvironment v VicForests Transcript Monday 06 02 2012

Opening day with Kristen Walker, counsel for My Environment, outlining the plaintiff's view of the case.

She did an excellent and very thorough job explaining the legislative framework (Acts, Codes, Regulations and Standards) that native forest loggers are required to comply with.

Hearing the arguments put so systematically and compellingly made obvious the immense preparation that has gone on behind the scenes.

VicForests made only a brief presentation in response as there was limited time.

Day 2 - MyEnvironment v VicForests Transcript Tuesday 07 02 2012

The day was mostly spent with counsel for VicForests diligently endeavouring to establish the framework of his client's defence, through extensive reference to the legislation and foreshadowing some of the evidence that they intend to bring before the court.

It was mentioned that, if the court finds that the three coupes that are the subject of this case cannot be legally logged, then the same will apply to another 162 coupes across Victoria, making it clear that this case could have much broader significance.

Immediately after lunch arrangements were confirmed for the viewing tomorrow, so there will be no sitting in court.

VicForests then concluded outlining their case, before the court rose at 4:38 pm.

The hearing will continue in the Supreme Court on Thursday at 10:30 am.

Day 4 - MyEnvironment v VicForests Transcript Thursday 09 02 2012

After the usual 'housekeeping' tasks (corrections to transcripts etc.), Professor David Lindenmayer took the  stand to give his awaited evidence for the plaintiff.

As expected, David's evidence was rigorous, objective and thorough and Ms. Walker led him very systematically through his report. After 28 years of research on the ecology of the Central Highlands wet forests, his expertise and depth of knowledge shone through as he described the extent of transformation and disturbance he has witnessed and recorded. He carefully outlined his deep concerns for the future of Leadbeater's Possum and their forest habitat. Following the 2009 wildfires the population on Lake Mountain is now locally extinct (the last three surviving animals have been taken into captivity). Professor Lindenmayer explained we just don't know how well the species will deal with the projected population bottleneck. 

Under cross-examination (after lunch) he patiently explained several times that his research team doesn't use the terms 'mature' and 'senescent' as they are not sufficiently rigorous terms for such work. He stressed his deep concern with producing high quality science. He was repeatedly asked, looking at photographs, to confirm that the trees shown were 1939 regrowth or other specific age classes, which he was unable to do. He explained several times that such determinations require seeing the tree in the field and in context. 

Day 5 - MyEnvironment v VicForests Transcript Friday 10 02 2012

As announced cross-examination of Professor Lindenmayer continued this morning. In his responses he underscored the importance of tree hollows in which Leadbeater's Possums spend 75% of their lives. He was quizzed about whether he had carefully read several documents and about why he had not mentioned in his report a study prepared by Jacques Cop. He answered that it wasn't mentioned because it wasn't relevant - it was important to have his own researchers conduct their own measurements. He was also questioned about a statement in an early draft of his report that had been changed in the final version, bringing one of several interventions from Justice Osborn, who explained, "What you are attacking is a statement that hasn't been made, as far as I am concerned." On another occasion Justice Osborn declared a question "not fair" and took exception to the repetitiveness of the examination, saying, "The documents make clear what [Professor Lindenmayer] did - he keeps telling you that."

As in yesterday's evidence, Professor Lindenmayer was impressive with his compendious knowledge of the biology and ecology of Leadbeater's Possum, "a topic with which I have some familiarity," he commented with commendable modesty! At several points he was able to quote authorities and dates, including several of his own publications. Cross-examination finished with confirmation that in assessing the three Toolangi coupes the considerations had been based on hollow-bearing trees, occurrence of Leadbeater's Possum on the coupes, added risk of extinction if the coupes were logged, the presence of Zone 1A habitat and the impacts of coupe edge effects on the persistence of animals.

After a brief re-examination by Ms Walker, Professor Lindenmayer left the witness box just before 1:00 pm, so the court adjourned for lunch.

When we all returned after lunch we were greeted with the surprise announcement that, on the basis that Mr Waller had confirmed during the morning's cross-examination that he didn't, "make any challenge to the veracity of the underlying data," of Professor Lindenmayer's report, My Environment would not seek to call the next two witnesses who had recorded that data in the field. This was confirmed and after some further discussion regarding the further scheduling of the case, the court adjourned at 2:25 pm. The case will continue with the Evidence in Chief of VicForests on Monday morning at 10:30.

Day 6 - MyEnvironment v VicForests Transcript Monday 13 02 2012

VicForests had insisted on an opportunity to cross-examine John Stein of the Fenner School at ANU, who had revised maps tendered by Professor Lindenmayer last week. As a result, John had flown down from Canberra yesterday and was first in the witness box this morning. It took only a short time to establish that he had created maps in accordance with instructions from Professor Lindenmayer.

Most of the rest of the morning was spent on the issue of the evidence of Dr Schirmer, to which My Environment had objected. After presentations from both sides, Justice Osborn adjourned to consider the issue over the lunch break.

On returning to court, Justice Osborn explained that he agreed to hear parts of Dr Schirmer's evidence relating to the three Toolangi coupes but agreed with the plaintiff's submissions regarding the lack of relevance of 166 other coupes over 3 Forest Management Areas which VicForests had described as similar. "They are not sufficiently similar," he concluded.

The hearing then continued with the evidence-in-chief of Lachlan Spencer from VicForests followed by cross-examination, which was continuing when the court rose at 4:18 pm.

Day 7 - MyEnvironment v VicForests Transcript Tuesday 14 02 2012

This morning saw the continuation of Lachlan Spencer's cross examination by Ms Walker (for My Environment). Mr Spencer insisted that VicForests did not intend to conduct a regeneration burn at Gun Barrel coupe (if logging was allowed to proceed), but had to concede that the decision not to do so was not taken until November 2011, when this litigation was already under way. He also expressed surprise that VicForests intended to log 31 ha. (net) of South Col coupe, although the figures quoted in his affidavit were based on projected yield from that area. 

Cross examination and re-examination were completed quite quickly after lunch. Then Michael Ryan, VicForests' Field Scientist took the stand. His evidence-in-chief was quite brief, mostly concerned with looking at photographs of trees in Gun Barrel coupe. He introduced a number of novel tree categories including "advanced regrowth" and "very mature". More puzzling terms used were "strict trees" and "grey trees".

Day 8 - MyEnvironment v VicForests Transcript wednesday 15 02 2012

As expected, this morning continued with the ongoing cross-examination of Michael Ryan, VicForests' Forest Scientist. During questioning Mr Ryan claimed that, when you are in the forest Leadbeater's Possum Zoe 1A habitat is quite clear and should be excluded from logging. Referring to the report on Gun Barrel coupe that he had prepared last July, he pointed out that it was only in exceptional circumstances that such a level of detail was undertaken. In this case the circumstances included a high level of public interest.

After conclusion of cross-examination there was no re-examination by Mr Waller so Mr Ryan was excused.

After that Mr Waller informed the court that by agreement Dr Mark Neyland would not be called and VicForests had resolved not to call Mr Simon Smith of DSE. 

The only witnesses remaining to be called are Dr Schirmer and Dr Ajani. With assurances from both sides that there would be sufficient time to complete the evidence and cross-examination of both witnesses tomorrow, the court rose early to reconvene, tomorrow (Thursday) at 10:00 am

Day 9 - MyEnvironment v VicForests Transcript Thursday 16 02 2012

The morning began early (at 10:00 am) with the Evidence-in-Chief of Dr Jacqueline Schirmer. After confirming her report and supplementary report Mr Waller, for VicForests, had no further questions.

Cross-examination by Ms Walker, for My Environment, was almost immediately interrupted by Mr Waller when Dr Schirmer referred to the VicForests' Corporate Plan which apparently had been provided to Dr Schirmer (and the court) as a confidential exhibit, being considered "commercial-in-confidence". Mr Waller suggested questions relating to the plan be heard In camera.

In the event this proved to be unnecessary and questioning resumed.

Dr Schirmer confirmed that cessation of logging in the three Toolangi coupes would have a relatively small effect on production, if any, well within uncertainty margins. She also agreed that such cessation could not be said to cause any permanent loss of jobs, although it might bring forward the loss of jobs that are expected to be lost. Dr Schirmer informed the court that she had not been told that amendments could be made to Timber Allocations and Timber Release Plans (which might have the effect of compensating for the removal of the three coupes) and her report did not take those possibilities into account.

Re-examination was very brief and Dr Ajani commenced her evidence. She confirmed Dr Schirmer's evidence that there is capacity to use the undercut (which Dr Schirmer had estimated at 15%) to keep production running through, so that if the three Toolangi coupes were excluded the loss would be relatively small and could probably be accommodated within the log-cut without any material effect on employment.

Under cross-examination Dr Ajani pointed out that her view that the commodity sector of the forest industry should transition to plantation resources was based on building an economically robust industry, not philosophical objections. She explained that such a transition had a "nice compatibility - ecological integrity" whereas exposing native forests to commodity productions means the two objectives (a robust industry and ecological integrity) are fundamentally in conflict. She confirmed her conviction that, "Australia's environment needs more help from its citizens."

After briefly recalling Dr Schirmer, Mr Waller closed the case for the defence and the hearing was effectively over. 

Day 10 - MyEnvironment v VicForests Transcript Monday 20 02 2012

VicForest gave their closing statements and MyEnvironment gave the first 45 minutes of their closing statement. To be continued tomorrow.

Day 11 - MyEnvironment v VicForests Transcript Tuesday 21 02 2012

The final day of the Supreme Court hearing of My Environment -v- VicForests opened with the continuing concluding statement by Ms Walker on behalf of the Plaintiff. Onlookers in the gallery were awed by the systematic and detailed approach with which Kristen delineated and connected the main features of the the case.  As occurred during VicForests' submissions yesterday Justice Osborn interceded several times to highlight particular issues on which he sought assistance.

After lunch the Plaintiff's submissions were completed and Justice Osborn flagged that when he comes to consider relief he might need to hear further from the parties. However, in the first instance he must grapple with his findings.

On completion of the Plaintiff's submissions, Mr Waller made a very brief reply. Justice Osborn then succinctly encapsulated the questions at the centre of the case. In defining Zone 1A Leadbeater's habitat, is VicForests obliged to count all Hollow-bearing Trees or not? What were VicForests meant to look for? He observed that the prescription is not free from difficulty.

In wrapping up the case, his honour noted that there is substantial public interest in the issue and that he had been assisted by being provided with very full submissions; finally, he would need time to consider.

The hearing was adjourned, Sine die (i.e. without a date set to resume).

Now all we can do is wait to be called back and we have no real estimates of when that might be. It is likely to be no less than a month but could be a few, or several! When we are called notice is likely to be short, only a day or two, so keep watching your emails for news.