Background to the case

On 4 October 2007, the then Minister, Malcolm Turnbull, approved the construction and operation of Gunns’ pulp mill in the Tamar Valley, Tasmania, under the Environment Protection and Biodiversity Conservation Act 1999 (“the Act”). The approval decision imposed 48 conditions on the mill.

29 November 2007 - the case is filed with the Court

LFF is concerned about the significant impact that the mill will have on the environment, including on the marine environment, native forests and the species that rely on those habitats. LFF is also concerned to ensure that the decision to approve the mill complies with the law. LFF is challenging the legal basis of the decision by seeking judicial review of it.

5 December 2007 - the case is served on Gunns and Garrett

4 February 2008 - the first hearing in the case

The first hearing in the case was on 4 February 2008. Gunns made an application for security for costs, which is an order that would require LFF to give a bank guarantee that would go to contribute to Gunns' legal costs if LFF lost the case. The Judge delayed deciding that application until a later stage in the proceeding. He said that at that stage he was of the view that LFF should not pay security for costs. Also on 4 February 2008, the Judge set a timetable - LFF is to file its evidence on 25 February 2008, the Minister is to file his evidence on 17 March 2008 and all the parties will be back in Court on 18 March 2008 at which time it is possible that the Judge will set a date for the ultimate hearing of the case.

30 April 2008 - the second hearing in the case

The hearing scheduled for 18 March 2008 was changed to 30 April 2008.
At the second hearing on 30 April 2008, His Honour Justice Marshall refused Gunns' application for Lawyers for Forests to pay security for Gunns' legal costs and said that LFF had an arguable case.

Gunns argued that security should be ordered unless there is evidence that those persons who stand behind LFF, that is the members, do not have the funds to provide security. The Court rejected that submission and said that “there is a relevant difference between members of a non-profit voluntary association formed for some public policy purpose and shareholders of a company. Members of LFF do not stand to gain any financial benefit from the proceeding. The proceeding is one in which LFF sues for its own benefit to advance a purpose or purposes for which it was formed”.

In support of its application for security for costs Gunns also submitted that LFF is not authorised to bring the proceeding because LFF’s objects and purposes are about protecting and conserving Australia’s native forests and not about the marine environment into which the efflucnet from the mill will be discharged. The Court found Gunns’ submission to be without merit because “LFF’s purposes include the stimulation and encouragement of public interest in the value and importance of native forests and related environmental issues. Opposition to the operation of a pulp mill, which may lead to adverse environmental effects and use wood sourced from native forests, fits well within the purposes of LFF.”

In rejecting the application for security for costs, the Court found that “as the only factor of any substance raised in support of the proposed order is LFF’s impecuniosity, Gunns has not satisfied its onus of demonstrating that a security for costs order should be made. To hold otherwise would stifle the litigation and prevent an applicant with standing to bring the application from agitating a matter which it considers to involve questions of public importance and which seems, on the material currently before the Court, to be made bona fide and raises arguable questions of law.”

Click here to read the full judgment.

Gunns tries to throw out all of LFF's evidence - hearing on 4 June 2008

LFF has filed evidence in support of the application which is a report produced by a Professor who is an expert in numerical modelling of multi-phase and multi-component/contaminant transport and sedimentary processes.  This is relevant to the dioxins and furans in the effluent discharged from the pulp mill.  The Minister is making an application for the Court to order that some of the report should be deleted.  Gunns is making an application for the Court to order the entire report out.  The matter is expected to be determined on Wednesday, 4 June at 9:30am at the Federal Court at Melbourne beofre His Honour Justice Tracey.

4 June 2008 - the third hearing in the case

Gunns applied to have LFF's expert report of Professor Andrew Wadsley struck out.  The report explains the conditions to the approval decision and addresses the impact that the toxic effluent from the pulp mill will have on the marine environment.  The Minister applied to have some parts of the report struck out.  The Court ordered some parts of it struck out, other parts to be accepted by way of submissions from LFF's Counsel and will rely on other parts of it.

18 June 2008 - the final hearing in the case

The ultimate hearing of the case began on Wednesday, 18 June 2008.  It continued on Thursday, 19 June 2008 and finished at the end of that day.  The next step in the proceeding is that His Honour Justice Tracey will hand down his decision.  We do not know when that will be.

9 April 2009 - Judgment

Justice Tracey handed down his decision.  His Honour dismissed LFF's application to set aside the Environment Minister's decision to approve the construction and operation of the pulp mill. 

30 April 2009 - LFF appeals the single Judge's decision

LFF has filed a notice of appeal in the Federal Court.  3 Judges will hear the case and decide whether the single Judge made the right decision and whether to overturn the Environment Minister's decision to approve the construction and operation of the pulp mill.  The date for the hearing before the 3 Judges has not yet been determined.  Click here to read the notice of appeal.