WARBURTON FILES FOR INTERLOCUTORY INJUNCTION WHILE VICFORESTS ASKS FOR CONFIDENTIALITY ORDERS

Warburton Environment Inc v VicForests (No 3) [2021] VSC 35 (8 February 2021)

This judgment follows the earlier decisions of Warburton Environment Inc v VicForests and Warburton Environment Inc v VicForests (No 2). In this decision, the main issues resolved in this judgment are the interlocutory injunction requested by the plaintiffs and whether confidentiality orders must be made in relation to some parts of some of the documents required to be produced by the respondent.

Facts:

• As to the interlocutory injunction

Warburton Environment seeks interlocutory restraining orders prohibiting timber harvesting operations in Coupes in the Central Highlands region including Coupes within 5km of a previously identified Tree Geebung until:

(1) a 30m transect survey for Tree Geebung has been completed;

(2)  VicForests has established 50m circular exclusion zones marked by red or brightly coloured tape around each Tree Geebung with each Tree Geebung not less than 15m from the perimeter;

(3) updated maps showing exclusion zones have been provided to the contractor; and

(4)  personnel have been instructed not to carry out timber harvesting within the exclusion zones.

Respondent deposed that taking into account other operational constraints which result in 78% of the estimated net area not being harvested, there would be a loss of 2,538ha

• As to the confidentiality orders

VicForests seeks an order that it not be required to produce for inspection documents sought until Warburton Environment signs a confidentiality agreement in the form attached to the summons.

The proposed confidentiality agreement restricts access to the documents to legal representatives and expert witnesses, the maintenance of records of inspections, and the preservation of confidentiality indefinitely. The documents are to be deleted and destroyed within three months of any final orders in the proceeding.

VicForests submbits that, if this information was disclosed, Ms Hubble-Marriott deposed that the ability of VicForests to negotiate commercial arrangements with its contractors would be seriously constrained since it contains various tables and other information are highly commercially sensitive and confidential.

Issue:

1. Should the interlocutory injunction be granted?

2. Should confidentiality orders be made in relation to some parts of some of the documents required to be produced under a notice to produce?

Law:

• Code of Practice for Timber Production 2014
• Management Standards and Procedures for timber harvesting in Victorian Stateforests 2014
• Civil Procedure Act 2010 S.47
• Supreme Court (General Civil Procedure) Rules 2015 29.11

Analysis:

1. The court is of opinion that the balance of convenience favours the grant of an interlocutory injunction since there is evidence that suggests that without protection by orders of the Court there is significant risk of damage to Tree Geebung through harvesting, or subsequent to harvesting. The Code adopts the precautionary principle, which states that risks to Tree Geebung should be minimised or at least reduced pending the trial of the proceeding.

While repondent’s evidence shows that economic loss will be sustained by VicForests if it is unable to harvest areas within buffers, an interlocutory injunction is only operative until the trial and determination of the proceeding.  If successful, VicForests will be able to harvest areas no longer subject to protection. There will be a postponement of revenue rather than a loss of revenue.

The grant of an interlocutory injunction will preserve Tree Geebung by ensuring that 50m buffer areas are provided within coupes until the trial.

2. The release of this information, even if accidental or fortuitous, could adversely affect the commercial interests of VicForests or its contractors. That information concerns charges, rates review, payments, performance, security, volumes and supply. Commercial information of this type is frequently of a confidential character. Personal information such as contact information, email addresses, and phone numbers is also confidential for different reasons.

Conclusion:

1. The court is satisfied that there is a lower risk of injustice if an interlocutory injunction is granted. This will lead to the protection of Tree Geebung. 

2. VicForests’ request for a higher level of confidentiality than is provided by the implied undertaking is reasonable in relation to the confidential information sought to be protected.

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